Mamatha Gujaran vs CANARA BANK on 25 November 2020

1. Canara Bank, Gandhinagar Branch, VakkaligarYanegowdra, SevaSantha Building, Kuloor Ferry Road, Chilimbi Lady Hill, Gandhinagar, Mangalore – 576 006. Represented by its Sr. Manager

2. Mr. Venkatanna, S/o. Chinnappa, R/o. No.484/21, 1^st Cross, V.S.Garden, Bangalore – 560 026.

**...RESPONDENTS**

Counsels on record/appeared for:

Applicant : Sri. Puttaraju Respondents :

2M.A. No.08/2020**ORDERS ON I.A NO.1160/2020**

1. The Miscellaneous Appeal [MA] No.08/2020 is filed on 13.07.2020 by the Borrower (Applicant) who is Defendant No.1 in T.A.No.1398/2017, aggrieved by the Order dated 02.03.2019 passed in T.A. No.1398/2017.

2. The Applicant is the Defendant No.1 in the T.A. No.1398/2017 and the 1^st Respondent is the financial Institution (Bank) and the 2^nd Respondent is the 2^ndDefendant and in T.A. No.1398-2017.

3. The M.A. is filed to set aside the exparte Order dated 02.03.2019 passed by this Tribunal in T.A. No.1670/2017 and restore the T.A. in its original position.

4. The applicant has filed I.A. No.1160/2020 under Section 22(g) of the RDBI Act read with section 5 of the limitation and to condone the delay of 467 days in filing the M.A.

5. It is submitted that the disposal of the TA came to the knowledge of the applicant only when she received the demand notice dated 20.06.2020 in RC No.1295/2019 and on receipt of the demand notice, the applicant has verified the records in the Tribunal and came to know that the Respondent No.1 Bank had obtained an exparte decree/order to recover Rs.11,82,869/- in T.A. No.1398/2017.

3M.A. No.08/2020

6. It is contended by the applicant that she has not received the notice from the Tribunal in respect to the OA/TA 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 in RC No.1295/2019 dated 20.06.2020 was received. Hence there is a delay of 467 days which is not intentional.

7. In the grounds of the MA it is pleaded that the non-appearing and not contesting the matter on merits before this Tribunal as she did not receive the summons and she is not liable to pay the claim of the bank as claimed in the demand notice dated 01.06.2020 issued in RC 1295/2019 which is received by the applicant on 20.06.2020.

8. It is further submitted that if the impugned order is not set aside, she will be put to irreparable loss and injury which cannot be compensated in terms of money genuine reasons and on the other hand there is no loss caused to the bank if the MA is allowed. the applicant is not aware of the facts as to how to proceed with the matter final Order dated 02.03.2019 is not passed on merits by hearing both the sides and hence the TA is to be restored. On these grounds, the applicant prays to condone the delay of 467 days in preferring this MA.

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

9. The issue for consideration is whether the applicant has made a case to condone the delay of 467 days in filing the application?

10. On perusal of the final order passed by this Tribunal in T.A. No.1398/2017 (O.A. No.1154/2016-DRT-1) it is seen from the records in the OA that the Defendant No.1 &2 was duly served with the OA summons as seen recorded in the proceedings dated 03.01.2017. However, there was no representation for Defendant No.1 & 2 even after due service of the summons, the Tribunal has set Defendants 1 & 2 as Exparte on 03.01.2017. The applicant bank adduced the evidence and based on the records an Exparte Order in T.A.No.1398/2017 was passed on 02.03.2019. Hence, the contention of the applicant that no summons was served is fallacious and misguiding without any force of law or on facts.

11. Going by the applicant admitted version, there is a delay of 467 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 no summons, hence could not contest the matter. Further, there are no reasons put forth by the applicant for each day's delay in filing 5M.A. No.08/2020

the MA. 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.

12. 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 as records reveal that summons was duly served on the applicant. Further the applicant has not made a justifiable case for condonation of 467 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.

13. 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 467 days without there being a locus in preferring the application praying to set aside the final order passed in the TA.

14. 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 were prevented by sufficient cause from appearing when the suit was called on for 6M.A. No.08/2020

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.

15. Sub-section (24) of S.19 of the Recovery of Debts and Bankruptcy Act 1993 prescribes the time-limit of 180 days 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.

16. In so far as the delay of 467 days in preferring the MA and to set aside ex parte 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 have not come 7M.A. No.08/2020

out with any cogent reason which prevented them to approach the Tribunal within limitation.

17. It is pertinent note that the applicant 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 bonofides and does not support their case and no iota of proof has been put forth by them to substantiate their contentions.

18. For the foregoing reasons, the Tribunal finds no ground or any prima facie case to condone the delay of 467 days. Accordingly, IA 1160/2020 a petition to condone the delay of 467 days is dismissed. Consequently, MA 08/2020 stands dismissed. Pending IA/s if any also dismissed in terms of this Order. No order as to costs.

*(Dictated to the Stenographer, after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this day 25^th November, 2020)*

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

8M.A. No.08/2020**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>02.03.2019</td><td>Certified copy of the final Order in T.A. 1398/2017 in DRT-2 Bangalore.</td><td>A1</td></tr><tr><td>02</td><td></td><td>Certified copy of the entire order sheets in T.A. No.1398/2017</td><td>A2</td></tr><tr><td>03</td><td></td><td>Certified copy of the Plaint/Petition with list of documents</td><td>A3</td></tr><tr><td></td><td></td><td>Demand Notice in RC No.1295/2019</td><td></td></tr></tbody></table>

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