Dismissed

Ajit Lakhamichand Bothra v. Mangala Sharad Mutha and Ors.

Bombay HC16 Jul 2013RA/316/2012

Case brief

AI extract

What is this about?

In this review application, the petitioner challenged a division bench order regarding limitations in appealing to the Debts Recovery Tribunal. The high court dismissed the review petition, finding no error apparent on the face of the record or perversity in the lower court's decision.

What did the court decide?

Review petition dismissed; prayer for continuation of interim relief rejected.

Ajit Lakhamichand Bothra Vs Mangala Sharad Mutha and Ors. — Banking and Recovery | Bombay HC (2013)

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Review Appln.No.316/2012

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(( 1 ))

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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REVIEW APPLICATION NO.316 OF 2012 IN WRIT PETITION NO.3714 OF 2011

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Ajit Lakhamichand Bothra

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... PETITIONER

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VERSUS

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Sau. Mangala Sharad Mutha & ors. ... RESPONDENTS

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Shri R.N. Dhorde, Senior Counsel with Shri V.R. Dhorde, Advocate for petitioner Shri U.R. Kulkarni, Advocate for respondent Nos.1 to 6 Shri S.V. Adwant, Advocate for respondent No.7.

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CORAM: NARESH H. PATIL & A.I.S. CHEEMA, JJ. DATED: 16th July, 2013.

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O R D E R :

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Heard. The learned Senior Counsel Shri R.N. Dhorde for the review petitioner submitted that, after the firm initiated steps against the certificate/order issued by the Recovery Officer, the partners individually had no right to resort to remedies prescribed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, Act of 1993). The respondents approached the Debts Recovery Tribunal beyond the prescribed period of limitation of 30 days. The appeal filed by the

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Review Appln.No.316/2012

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(( 2 ))

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respondents was not maintainable. In spite of parties having knowledge, they deliberately did not prefer the appeal. The counsel referred to various provisions of the Act of 1993. Reliance was placed on following reported judgments :

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(i) AIR 2008 SC (Supp.) 353(1) M/s Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur & ors.

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(ii) 2012 (2) ALL MR 837 (Madhukar Govindrao Thaware & ors. Vs. Central Bank of India

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(iii) AIR 1990 S.C. 261 (Sundarjas Kanyalal Bhathija & ors. Vs. The Collector, Thane, Maharashtra & ors. etc. etc.

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The learned counsel Shri U.R. Kulkarni appearing for respondent Nos.1 to 6 submitted that the review application is not maintainable as the same is filed through a power of attorney holder, who had no personal knowledge of the litigation. The counsel referred to the power of attorney and the verification clauses, which, according to the counsel, are defective. The counsel submitted that, throughout the proceedings the Courts have held that there was no delay in preferring appeal by the respondents. Issue of limitation was not raised by the review petitioner before the Debts Recovery Tribunal. The review petitioner has failed to show that the order under review, passed by the Division Bench was perverse or there was an error apparent

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Review Appln.No.316/2012

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(( 3 ))

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on the face of the record. Mr. Kulkarni, relied on following reported judgments :

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(i) 2010(5) Bom.C.R. 832 (Spanco Limited Vs. A2Z Maintenance & Engineering Services Limited & anr.

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(ii) 2005(5) Bom.C.R. 522 (National Textile Corporation Ltd. & anr. Vs. S.D. Sobharam

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(iii) 2012 AIR (SC) 3874 Haryana State Industrial Development Corporation Ltd. Vs. Mawasi & ors. etc.

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Learned Counsel Mr. Adwant for respondent No.7 submitted that the proceedings initiated by the respondents (original owners of the land) was barred by limitation. The Recovery Officer is not a Tribunal. Therefore, the provisions of the Act of 1993 will have to be considered in its proper perspective. Mr. Adwant placed reliance on following reported judgments ：

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(i) 2012(1) Mh.L.J. 209 (Madhukar Govindrao Thaware & ors. Vs. Central Bank of India)

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(ii) AIR 1954 S.C. 340(1) (Kiran Singh & ors. Vs. Chaman Paswan & ors.)

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(iii) (2006) 10 Supreme Court Cases 696 (M.P. Wakf Board Vs. Subhan Shah (died) by L.Rs. & ors.)

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(iv) (2005) 7 Supreme Court Cases 791 (Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & anr.)

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Review Appln.No.316/2012

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(( 4 ))

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We have perused the record, the order under review and the case law cited before us. We do not notice any perversity or error on the face of record of the judgment and order under review. The Division Bench has considered the relevant issues raised by the contesting parties. There is no merit in the review petition. The review petition is dismissed.

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After pronouncement of the order, learned counsel for the petitioner prays for continuation of interim relief. The request is opposed by learned counsel Mr. Kulkarni, for respondent Nos.1 to 6. It was submitted by Mr. Kulkarni that the review petitioner has already preferred an appeal before the Debts Recovery Tribunal, Aurangabad against the order of Recovery Officer directing the petitioner to hand over the possession of the suit land to the Recovery Officer. The prayer is rejected.

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(A.I.S. CHEEMA, J.) (NARESH H. PATIL, J.)

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fmp/rp316.12

Ajit Lakhamichand Bothra v. Mangala Sharad Mutha and Ors.

Case brief

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Ajit Lakhamichand Bothra v. Mangala Sharad Mutha and Ors.

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Ajit Lakhamichand Bothra Vs Mangala Sharad Mutha and Ors.