THE COMFORT INN vs INDIAN OVERSEAS BANK on 11 August 2023

O R D E R

1. The Miscellaneous Petition filed by the Applicant is for condoning the delay of 2476 days in Restoration of the SA No.01/2008 which was dismissed for default on 10.04.2012 by the Hon’ble DRT-I, Chennai and subsequently, the case was transferred to this Tribunal.

2. The Ld. Counsel for the Applicant submitted that the SA was dismissed for default for the reason that the Advocate clerk having noted the case as SA No.01/2007 in the place of SA No.01/2008 and therefore, the case was dismissed for default by the Hon’ble DRT-1, Chennai for the non-appearance of the Applicants and hence, the non-appearance of the Applicant was neither wanton nor willful before the Hon’ble DRT-1, Chennai.

3. The Ld. Counsel for the Applicant further submitted that the case was transferred to this Tribunal on the basis of the jurisdictional change alone, the Applicant could not prosecute the case further before the Hon’ble DRT, Coimbatore and hence, the delay may be condoned by this Hon’ble Tribunal and SA No.01/2008 may be restored back to file.

4. The Ld. Counsel for the Respondent Bank submitted that the Application filed by the Applicant is liable to be dismissed with exemplary costs by this Hon’ble Tribunal as the Applicant filed this Application with ulterior motives by suppressing the material facts.

5. The Ld. Counsel for the Respondent Bank further submitted that the partnership firm “M/s.The Comfort Inn” having availed the credit facilities from the Respondent Bank, the firm having defaulted in repayment, the SARFAESI proceedings were initiated and issued the notice u/s 13 (2) of the SARFAESI Act and subsequently, the possession of the property was taken on 25.10.2007 by the bank and thereafter, the property was sold in public auction and the Sale Certificate was issued in favour of the successful bidder/auction purchaser.

6. The Ld. Counsel for the Respondent Bank further submitted that the Applicant Mr.V.Lakshmi Ramanan is a stranger to the proceedings and he has alleged that he is the partner of the firm and whereas, there are no records with the Respondent Bank to demonstrate that the said Mr.V.Lakshmi Ramanan has ever been partner in the firm.

7. The Ld. Counsel for the Respondent Bank further submitted that the loan account in respect of the firm was closed and the balance of money lying with the bank was also paid to the 1st Respondent firm and the same was also acknowledged by the firm and an indemnity bond was also executed by the firm in favour of the bank

8. The Ld. Counsel for the Respondent Bank further submitted that there is no valid reason what so ever may be stated by the Applicant so as to condone the substantial delay of 2476 days.

9. The Ld. Counsel for the Respondent Bank further submitted that the sale was held by the bank on 06.12.2007 and by now nothing shall survives in this SA for any further adjudication by this Hon’ble Tribunal or rather the case itself became a “fait accompli”, in nature.

10. This Tribunal having heard the submission made by the Ld. Counsel for the Applicant and the Respondent Bank and on perusal of the Affidavit and petition and the counter filed by the Respondent Bank and having considered the facts & circumstances of the case, is the view that the Application filed by the Applicant is not found to have any merit so as to condone the substantial delay of 2476 days to restore back the SA on file for any further adjudication.

11. It is an undisputable fact that the property having sold by the bank and the sale certificate is also issued and equally the excess money is also paid back to the defaulted firm namely, M/s.The Comfort Inn, the very object of filing the Application is having no bonafide and therefore, the submission made by the Ld. Counsel for the Respondent Bank has some force to say that the Application is filed with an ulterior motive and liable to be dismissed with exemplary costs.

12. The Applicant has not shown any cogent reasons or any creditable evidence so as to condone the substantial delay of 2476 days before this Tribunal and therefore, this Tribunal is not liable to condone the delay and restore back the SA on file.

13. The Application filed by the Applicant is liable to be dismissed with exemplary costs as prayed for by the Respondent Bank. However, considering the fact that the loan account of the

Respondent Bank having duly settled with the bank and the excess money also refunded to the defaulter firm before several years back, this Tribunal not intend to impose any cost on the Applicant though the Applicant deserve for the same for the abuse of judicial process before this Tribunal.

14. Under such circumstances, this Tribunal is not inclined to condone the substantial delay of 2476 days so as to restore back the SA on file.

15. In the result, this MA No.344/2022 stands dismissed with no order to costs.

(M.P.BALASUBRAMANIAN)

PRESIDING OFFICER