Smt T S Srilakshmi vs BANK OF BARODA on 23 November 2020

1. Bank of Baroda. Jayanagar Branch, P.B.No.1120, 9^th Main, 3^rd Block, Bangalore-560011. Rep.by its Assistant General Manager.

2. M/s Sri. Krishna Shelter Pvt Ltd., No.59, Sri Krishna Sudha, West Anjaneya Temple Street, Basavanagudi Main Road, Gandhi Bazaar, Bangalore-560004.

3. Sri. Raghavendra. K.A. Managing Director, M/s. Sri Krishna Shelters Pvt.Ltd., No.59, Sri Krishna Sudha, West Anjaneya Temple Street, Basavanagudi Main Road, Bangalore-560004.

**...Respondents**

**Counsels on record/appeared for:**

Applicant : Sri. B.Prasanna Kumar

2I.A No 2528/2019 in

Respondent No.1 :Sri Gopalakrishna Hegde Respondent No.2 & 3:Sri. Devaraj **ORDERS ON I.A NO.2528/2019**

1. The Miscellaneous Appeal [MA] No.11/2020 is filed on 07.11.2019 by the Borrower (Applicant) who is Defendant No.3 in T.A.No.1670/2017, aggrieved by the Order dated 16.12.2017 passed in T.A. No.1670/2017.

2. The Applicant is the Defendant No.3 in the T.A. No.1670/2017 and the 1^st Respondent is the financial Institution(Bank) and the 2^nd Respondent is the 1^st Defendant and the 3^rd Respondent is the 2^nd Defendant in T.A. No.1670-2017 filed by the Bank.

3. The M.A. is filed to set aside the exparte Order dated 16.12.2017 passed by this Tribunal in T.A. No.1670/2017 and restore the T.A. in its original position.

4. The applicant has filed the I.A. No.2528/2019 under Section 22(g) of the RDBI Act read with section 5 of the limitation and to condone the delay of 644 days in filing the M.A.

5. It is submitted that the disposal of the OA came to the knowledge of the applicant only when she received the demand notice dated 28.07.2018 in TRC NO.228/2018 and on receipt of the demand notice, she contacted the Respondent 2 and 3 and came to know about the actual facts and the 2^nd and 3^rd respondents assured to resolve the same at the earliest and there would be no further litigation.

6. It is contended by the applicant that she has not received the notice from the Tribunal in respect to the OA and the respondent bank misguides the Tribunal that the summons was served, has obtained the final order and the applicant has not received the summons and the knowledge of the final order came only when the demand notice dated 28.07.2018 was received.

7. On receipt of the demand notice, the applicant contacted the Respondent No.2 company and Respondent No.3 to regularize the account. However, in spite of lapse of 1 year there was no settlement arrived between the parties, hence there is a delay of 644 days which is not intentional.

8. It is submitted that the non-appearing and not contesting the matter on merits before this Tribunal was for genuine reasons and the applicant is not aware of the facts as to how to proceed with the matter.

9. In the grounds of the MA it is pleaded that the final Order dated 16.12.2017 is not passed on merits by hearing both the sides and hence the OA is to be restored. On these grounds, the applicant prays to condone the delay of 644 days in preferring this MA.

10. It is contended by the applicant that due to the lethargic attitude of the Respondent No.2 & 3, the applicant is made to face dire consequences from the actions of the Respondent No.1 Bank and on this ground, OA is to be restored to its original stage and to set aside the exparte order dated 16.12.2017.

*Heard the submissions of the applicant counsel and perused the records.*

11. The issue for consideration is whether the applicant has made a case to condone the delay of 644 days in filing the application?

12. On perusal of the final order passed by this Tribunal in T.A. No.1617/2017 (O.A. No.2127/2016) it is seen from the records in the OA that the Defendant No.3 was duly served with the OA summons on 24.12.2016. However, there was no representation for Defendant No.1 to 3, nor the applicant/3^rd defendant was present before the Tribunal to contest and prosecute the OA. Since there was no representation even after due service of the summons, the Tribunal has set Respondents 1 to 3 as Exparte and based on evidence adduced by the bank an Exparte Order in T.A.No.1670/2017 was passed on 16.12.2017. Hence, the contention of the applicant that no summons was served is fallacious and misguiding without any force of law or on facts.

13. It is revealed that after the issuance of notice on the MA, Advocate Mr.Gopalkrishna R.Hegde had filed a Memo of appearance for Respondent No.1 and Advocate Mr.Devaraj had submitted that Vakalath for R2 and R3 is filed, however no Vakalath or objections are seen to be filed for R1 to R3 in the instant matter even as on 09.10.2020.

14. Going by the applicant admitted version, there is a delay of 664 days in approaching the Tribunal and as such, there is no explanation put forth by the applicant in filing the MA at a belated stage and has come out with untenable averments that based on the assurance of the Respondent's 2 and 3 that the matter will be resolved is facing the consequences to their non-fulfilling the assurance. It is a settled legal proposition that law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes.

15. In the instant matter applicant has not given any valid and *bona fide* reasons nor made out sufficient cause for the delay in filing the application, where in the applicant is required to explain each and every day's delay as mandated under Section 5 of the Limitation Act and hence the explanation of the applicant that she is not aware of the proceedings is blatant lie. Further the applicant has not made a justifiable case for condonation of 644 days delay and it is settled position of law that each day's delay has to be justified or a proper cause be made out to condone the delay.

16. It is axiomatic that condonation of delay is a matter of discretion of the Court. However, while there is no sufficient cause assigned by the petitioner for the inordinate delay of 644 days without there being a locus in preferring the application praying to set aside the final order passed in the OA

17. It is the settled legal position that an ex-parte order against defendant has to be set aside if the party satisfies the court that summons had not been duly served or they was prevented by sufficient cause from appearing when the suit was called on for hearing; however, the court shall not set aside the said order on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

18. Sub-section (24) of S.19 of the Recovery of Debts and Bankruptcy Act 1993 prescribes the time-limit of 180 day within which an application made under S.19 is required to be disposed of. The proviso to this sub-section envisages extension of time, but the outer limit for adjudication of an application is six months. It is thus evident that the remedies available to an aggrieved person under the Act are both expeditious and effective.

19. In so far as the delay of 644days in preferring the MA and to set aside exparte order is concerned, the applicant has to show why she has not filed the application on the last day of limitation prescribed. That may inevitably mean that the applicant will have to show sufficient cause not only for not filing the application on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay, the party may be called upon to explain for the number of days delay covered by the period between the last day prescribed for filing the application and the day on which the application is filed. In the instant case the applicants has not come out with any cogent reason which prevented them to approach the Tribunal within limitation.

20. It is pertinent note that the applicants herein being aggrieved by the final order passed by the Tribunal under S.19 of the RDDBFI act ought to have challenged the final order before the Appellate Tribunal or to have filed petition to set aside the final order within the period of limitation as prescribed under the Act before this Tribunal. The delay in filing an application to set aside the exparte order and the reason for non-filing of written statement are very vague which lacks bonafides and does not support their case and no iota of proof has been put forth by them to substantiate their contentions.

21. For the foregoing reasons, the Tribunal finds no ground or any prima facie case to condone the delay of 644 days. Accordingly, MA 11/2020 stands dismissed. Consequently, pending IA/s if any also dismissed. No order as to costs.

*(Dictated to the Stenographer (SR), after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this day 23^rd November, 2020)*

Sd/- **PRESIDING OFFICER** **DRT-2, BENGALURU**

M.A. No.11/2020**APPENDIX****LIST OF DOCUMENTS PRODUCED BY THE APPLICANT**

<table border="1"><thead><tr><th>Sl. No.</th><th>Date</th><th>Particulars</th><th>Annexure</th></tr></thead><tbody><tr><td>01</td><td>16.12.2017</td><td>Final Order in T.A. 1670/2017 in DRT-2 Bangalore.</td><td>A1</td></tr><tr><td>02</td><td>28.07.2018</td><td>The Copy of Demand Notice</td><td>A2</td></tr></tbody></table>

**Sd/- PRESIDING OFFICER DRT-2, BENGALURU**