D Kiran vs INDIAN BANK on 25 July 2022

1. The Miscellaneous Appeal [MA] No.25/2021 is filed on 24.03.2021 by the Applicants who are Applicant No.1 and 2 in MA.25-2021 2

SA.No.212/2020, aggrieved by the Order dated 17.02.2021 passed in SA.No.212/2020.

2. The applicants are the 3rd parties to the loan transaction have preferred a SA.No.212/2020 for declarations that no mortgage was created over the application Schedule B and C properties. The applicant has also sought for declaration to declare that the order dated 23.09.2010 passed in C.Misc.No.169/2010 on the file of the IX Additional Chief Metropolitan Magistrate at Bangalore is not binding on the applicants and prayed this court to direct the respondent to put them in possession and enjoyment of the application Schedule – B and C properties amongst various other reliefs as prayed in the application. However, SA.No.212/2020 came to be dismissed for non-prosecution vide order dated 17.02.2021. Hence MA has filed seeking to recall the order dated 17.02.2021.

3. In the MA it is contended that the SA.No.212/2020 stood posted to 17.02.2021 for hearing the applicants on condonation of delay application filed along with SA. The Advocate appearing for the applicants met with a minor accident and on account of the said reason he was unable to attend the proceedings when the matter was called, they could not MA.25-2021 3

represents the matter. On 17.02.2021 when the matter posted for argument, the applicant counsel was met with an accident, could not reach this Tribunal in time and also could not represented the matter on 17.02.2021. The Tribunal had dismissed the SA.No.212/2020 for non-prosecution. Heard the submissions and perused the records of the case.

4. The applicants are 3rd parties to the loan transaction have filed the SA.No.212/2020 aggrieved by the order dated 23.09.2010 passed in C.Misc.No.1690/2010 of the IX Additional Chief Metropolitan Magistrate at Bangalore and to direct the respondent to put the applicants in peaceful possession of also to declare that the schedule B and C property. Admittedly, the SA.No.212/2020 filed with the delay of 3154 days in preferring the appeal, accordingly, IA.2323/2019 is filed to condone the delay.

5. It is seen in the order dated 19.12.2019 there was no representation for the applicant in the first and second call. The Tribunal had directed issuance of notice on the respondent by RPAD and the matter stood adjourned to 27.04.2020 to 10.09.2020 and there was no representation for the applicant on 10.09.2020. It is seen that, the applicant has not taken steps on MA.25-2021 4

respondent nor there is a Vakalat or any counsel represented the bank. Hence the matter was directed to be listed on 23.11.2020. Further the matter stood adjourn to 23.11.2020 to 18.01.2021. On 18.01.2021 there was no representation for the applicant nor the applicant has taken steps on respondent as directed by the Tribunal and it was clarified that in case the applicant fails to address the arguments on the IA, SA would be dismissed for default and matter stood adjourn to 17.02.2021, when the matter taken on board on 17.02.2021 there was no representation of the applicants nor has taken steps on respondent as directed by the Tribunal.

6. The applicant in the MA contends that his counsels met with a minor accident. Hence he could not represent the matter. However, the said contention is not supported by any medical report and the contention with the SA came to be dismissed only on 17.02.2021 and there is no representation cannot sustain as Tribunal while passing order on 17.02.2021 has clearly recorded the applicants non representation at para 4,5 &

6.

7. It is also evident from the Order that the applicant had not taken steps on the respondent bank and was not MA.25-2021 5

prosecuting matter diligently. In spite sufficient opportunity granted to the applicants. Hence the Tribunal recording the absence of the applicant have dismissed SA.No.212/2020. There is no cause made for restoration of the SA.No.212/2020. Hence, the present MA does not deserves for any relief, accordingly MA stands dismissed.

8. It is evident that the Tribunal has given sufficient opportunity for the applicant to address the arguments as they failed to address the arguments, the Tribunal vide dated 17.02.2021 yet again given last opportunity to take steps on respondents. However, the applicant failed to appear and address the matter and the reason as put forth by the applicant in the MA is that the Ld. Counsel for the applicant was met with an minor accident. However, the said contention is vague, bald contention made without force in law or on facts.

9. It is pertinent to note that SA.No.212/2020 was filed on 21.08.2019 and the Tribunal under S.17(5) of the Act is duty bound to dispose the appeal under S.17(5) within 4 months. Hence, the Tribunal recording the absence of the applicant counsel on various dates and on recording sufficient opportunities given has dismissed the SA.No.212/2020.

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10. It is appropriate to mention that the applicant has filed the present MA without any justifiable cause to recall the order dated 17.02.2021 in SA.No.212/2020. In absence of any valid grounds and reasons, the Order cannot be set aside for mere asking for it without any equitable grounds.

11. Accordingly, MA.25/2021 stands dismissed for default. Interim order granted if any stands vacated and pending IA/s if any are disposed of. No order as to cost. (Dictated to the Steno (PR), after her transcription and necessary corrections, signed and pronounced by me in the Open Court on this 25th day of July, 2022)

Sd/- (S.V. GOWRAMMA) PRESIDING OFFICER

DRT-2, BENGALURU