Mstc Limited versus Standard Chartered Bank

Mr Rajesh Nagori along with Mr Rohit Gupta, Mr Anamika Singh and Ms Nashrin Shaikh, i/b M/s. Induslaw, Advocate for Appellant. Senior Counsel Mr Tushad Cooper along with Ms Radhika Gupta, Mr Taha Mirza and Ms Drishti, i/b M/s. Khaitan & Co., Advocate for Respondent.

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-: Order dated: 09/11/2022:-

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This is an application filed under Section 5 of the Limitation Act for condoning the delay of 856 days in filing the appeal at Diary No. 146/2021. The Appellant had filed the aforesaid appeal impugning the order dated 16/09/2017 passed by the Debt Recovery Tribunal-1 Mumbai (‘DRT’ in short) in Interim Application No. 302 of 2017 in Original Application (O.A) No. 43 of 2012 filed under Rule 12 (5) of the Debt Recovery Tribunal (Procedure) Rules, 1993 (‘DRT Rules’, for short).

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O.A No. 43 of 2012 was filed by the Respondent Standard Chartered Bank (SCB) claiming a sum of ₹2,225,100,000/-from the Appellant. While the application was pending consideration, the above-

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mentioned IA No. 302/2017 was filed by the SCB seeking a decree on admission as provided under Rule 12 (5) of the DRT Rules. The application was allowed by the DRT and the Appellant was directed to pay the sum claimed. Aggrieved with that order, the Appellant is in appeal.

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The Appellant had also filed IA No. 49/2021 for waiver of deposit and the application was disposed of directing the Appellant to deposit a sum of ₹ 90 crores as pre-deposit under section 21 of the Recovery of Debts and Bankruptcy Act, 1993 (‘RDB Act’ for short). The amount was deposited and the order was complied. 4. Challenging the impugned order dated 16/09/2017 the Appellant had earlier filed Miscellaneous Appeal No. 1 of 2017 on 14/11/2017, well within the statutory period of 30 days before this Tribunal. The said appeal was withdrawn in order to pursue their remedy of seeking a review of the impugned order. The Applicant filed Review Application No. 1 of 2018 on 18/12/2017 with a delay of 28 days. To condone the delay in filing the said Review Application, the Appellant also filed Miscellaneous Application No. 11 of 2018. The application to condone the delay was rejected by the DRT vide order dated 21/04/2018. As a consequence of that, Review Application No. 1 of 2018 was also dismissed. The Appellant challenged the order dated 21/04/2018 before the Hon’ble High Court of Bombay by filing Writ Petition No. 2765/2018. The rate was allowed on 03/05/2019 and the Review Application was restored to the file of the DRT for consideration. The Respondent challenged the order in the Writ by filing a Special Leave Petition No. 20093/2090 before the Hon’ble Supreme Court, which was allowed vide judgement dated 21/01/2020

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reversing the order of the Hon’ble High Court dated 03/05/2019. The Appellant contends that consequent to the order of the Hon’ble Supreme Court, the cause of challenging the order of the DRT dated 16/09/2017 has arisen afresh and the limitation period for the purpose of filing the present Miscellaneous Appeal should be calculated from that date. The Appellant also claims entitlement to exclusion of time in pursuing and contesting the said Review Application and proceedings emerging therefrom as mentioned above. The Appellant states that this application for condonation of delay is filed in the event this Tribunal is of the view that the Appellant is not entitled to exclusion of time period in pursuing the Review Application and proceedings emerging therefrom.

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The SCB had preferred the aforementioned I.A. 302/2017 alleging that there was an admission on the part of the Appellant under Rule 12 (5) of the DRT Rules. The Appellant had filed an affidavit in reply to the said I.A. opposing the allegation of there being an admission. Without properly appreciating the reply and the submissions made on behalf of the Appellant, the Ld. P.O vide the impugned order dated 16/09/2017, allowed the application and passed a decree for the amount claimed in the Original Application. The Appellant is aggrieved and hence, in Appeal.

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The Appellant states that they were advised to prefer an appeal challenging the impugned order and after consultation with lawyers, and the officers in the Ministry of Steel under which the Appellant, a public sector undertaking comes, a decision was taken to file the appeal before this Tribunal on 14/11/2017. After much deliberation and consideration, it was advised by the Advocates/Counsel to seek a review of the

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impugned order and withdraw the pending Miscellaneous Appeal No. 1 of 2018 in order to avoid a multiplicity of proceedings. Such advice was given by the Advocates under the bona fide belief that the Review Application would be within the limitation period of 60 days stipulated under Rule 5-A of the DRT Rules. The Appellant had also made necessary averments in the above-mentioned Review Application that steps were being taken towards the withdrawal of the Miscellaneous Appeal. Subsequently, the Miscellaneous Appeal was withdrawn on 02/01/2018.

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The Appellant contends that relying on a book containing the Bare Act of the DRT Rules published in 2017, the Appellant was misled to believe that the period of limitation was 60 days instead of 30 days as a consequence of the amendment of the DRT Rules in 2016. There has been a bona fide mistake on the part of the Appellant in relying on a Bare Act which contained the pre-amendment provisions. Pursuant to that, the Appellant filed Miscellaneous Application No. 11 of 2018 for condoning the delay of 28 days in filing the Review Application. The Appellant had sought exclusion of time spent by the Appellant in pursuing the Miscellaneous Appeal before this Tribunal. However, the DRT vide order dated 21/04/2018 held that it had no powers to condone the delay in filing the Review Application and dismissed the applications for condonation of delay, as also the Review Application. Although the Writ Petition was allowed by the Hon'ble High Court, the SLP filed before the Hon'ble Supreme Court reversed that finding of the Hon'ble High Court. Meanwhile, Recovery Proceedings were initiated qua the immovable properties belonging to the Appellant pursuant to the restoration of the

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Review Application. No interim reliefs of stay were granted by the DRT. An interlocutory application for stay filed before the Hon'ble Supreme Court was allowed to a limited extent. Pursuant to the disposal of the SLP by the Hon'ble Supreme Court, the present appeal was filed by the Appellant. As explained above, the Appellant submits that the delay was caused under the bona fide belief that the steps taken by the Appellant in filing the Review Application after withdrawing the Miscellaneous Appeal No. 1 of 2018 was sustainable, and hence, it is prayed that the delay in filing the present Miscellaneous Appeal may be condoned.

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The Respondent SCB has filed an affidavit in reply to this application contending that it is not maintainable. It is stated that the Appellant had earlier challenged the impugned order of the DRT dated 16/09/2017 before this Tribunal by way of filing Miscellaneous Appeal No. 1 of 2018 in the said appeal was withdrawn vide order dated 02/01/2018. The order of this Tribunal does not grant any liberty to the Appellant to file a fresh appeal. It is, therefore, clear that the Appellant herein is precluded and barred from filing an appeal on the same cause of action. There is an embargo under Order 23 of the Code of Civil Procedure from entertaining this appeal. It is submitted by the Respondent that the Appellant has withdrawn and/or abandoned its challenge against the impugned order not once but twice without obtaining the requisite leave to institute fresh proceedings in respect of the same. Hence it is submitted that the application for condonation of delay deserves to be dismissed. The Respondent would also contend that the application for condonation of delay was filed only on 26/04/2021,

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over a year after the present Appeal was filed on 20/02/2020. It is pointed out that the Appellant's conduct itself disentitles it from claiming any relief. The records amply reflect that the Appellant has consistently resorted to dilatory tactics to derail the recovery proceedings initiated by the Respondent and avoid payment of its legitimate dues. The Respondent has given in detail the schedule of the dates and events to indicate the fact that the Appellant has been deliberately resorting to dilatory tactics to protract the litigation. Hence it is prayed, that the application for condonation of delay may be dismissed.

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Heard Mr Rajesh Nagori, the learned counsel appearing for the Appellant and Mr Tushad Cooper, the learned Senior counsel appearing for the Respondent. Records perused.

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The submissions made by the learned counsel appearing for the Appellant is that the details of the events would indicate that there is no deliberate attempt to cause a delay in filing the appeal by the Appellant the delay was caused not due to any laches on the part of the Appellant. The Appellant relies on the decisions of the Hon'ble Supreme Court in M.P. Steel Corporation vs. Commissioner of Central Excise (2015) 7 SCC 58, Union of India vs. West Coast Paper Mills Ltd.(2004) 3 SCC 458 and Shesh Nath Singh vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr 2021 SCC OnLine SC 2442 to canvas for the position that the principles of section 14 of the Limitation Act would apply to the instant case as the term 'court' would have to be liberally construed to include within it quasi-judicial Tribunals as well. Reliance is placed upon the decision of the Hon'ble Supreme Court in State of Kerala & Ors vs. M.G.Presannaand & Ors (2011)

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15 SCC 203 to argue that time spend up until disposal of the review petition must be excluded as a bona fide period spent in pursuing other remedies. It is submitted that the provisions under section 14 of the Limitation Act are to be applicable even in cases, inter alia where the defects are not merely jurisdictional but also to any circumstances having proximity to such deficiencies. Under the circumstances, it is the argument of the learned counsel for the Appellant that the time spent by the Appellant in pursuing the Review Application, the Writ Petition and the SLP would have to be excluded applying the principles of section 14 of the Limitation Act. It is also pointed out that the review application having attained its finality on 21/01/2020, the limitation begins to run only from then. The outbreak of the pandemic COVID-19 and the lockdown are also contributing reasons for the delay which needs to be condoned. It is also submitted that while dealing with the application for condonation of delay this Tribunal is required to consider the case of the Appellant alone and cannot go into the merits of the case. In support of this submission, the Ld. Counsel relies on the decisions of the Hon'ble Supreme Court in State of Jharkhand vs. Ashok Kumar Chokhani 2009 (2) SCC 667 and State of M.P & Anr vs. Pradeep Kumar & Anr 2000 (7) SCC 372 as also the decision of the Karnataka High Court in Marigauda Chana Basappa Marigaudar vs. Sattepa Veerappa Kaujalagi through LRs 2014 SCC OnLine Kar 12701 . It is submitted that a perusal of these decisions shows that the issue of maintainability of the appeal on the issues of merits cannot be heard without the delay having been condoned. In fact, the question of the merits of the case cannot be gone into, without first condoning the delay in filing the appeal. The contention of the Respondent that the Appellant

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had not sought the leave of this Tribunal before withdrawing the earlier appeal is also not acceptable while considering the application for condoning of delay. It is also pertinent that the earlier appeal was withdrawn by the Appellant without the stage of consideration of predeposit being reached and therefore, the earlier appeal was not an appeal in the eye of the law. The Appellant would also rely on the decision of the Hon'ble Supreme Court in Improvement Trust, Ludhiana vs. Ujagar Singh & Ors 2010 (6) SCC 786 . It is also submitted by the counsel that wrong advice by the pleader would also amount to ‘sufficient cause’ for condonation of delay for which he relies on the decision The State of West Bengal vs. The Administrator, Howrah Municipality & Ors (1972) 1 SCC 366. It is submitted that technical challenges like that of limitation must give way to substantial justice and a pragmatic approach must be adopted when the State is the litigant and relies on the decision of the Hon'ble Apex Court in State of Bihar & Ors vs. Kameshwar Prasad Singh & Anr (2000) 9 SCC 94 . Moreover, it is submitted that the Appellant has a very strong prima facie case in the appeal which requires the appeal to be heard on merits. In conclusion, it is submitted that the Appellant has acted diligently and with bona fides in pursuing the available remedies and has made out a sufficient case for the condoning of delay in filing the appeal. It is submitted that the delay may be condoned and the appeal is heard on merits.

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The Ld. Counsel for the Respondent SCB submits that the Applicant/Appellant has prayed for condonation of delay of 856 days in preferring the Appeal but in paragraph 5.40 of the condonation

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application, it is pleaded that there is a delay of 819 days. The contention raised by the Applicant that the period of limitation begins to run from 21.01.2020, the date of the order passed by the Hon’ble Supreme Court in the SLP is entirely untenable and absurd. The reliance upon Sec. 14 of the Limitation Act is also erroneous. The Appellant had, despite having filed Misc. Appeal No. 1 of 2018 against the impugned order purported to file Review Application No. 1 of 2018 before the D.R.T. while the aforesaid M.A. No. 1 of 2018 was pending before this Tribunal. After the dismissal of the application to condone the delay in considering the Review Application No. 1 of 2018, the Appellant challenged the order before the Hon’ble High Court of Bombay and also succeeded in getting the delay condoned with the direction to consider the Review Application on merits. The Respondent, however, challenged the order of the Hon’ble Bombay High Court before the Hon’ble Supreme Court by filing SLP and got the order reversed. The Counsel relies on the decision of the Hon’ble Supreme Court in the University of Delhi vs. Union of India (2020) 13 SCC 745 wherein it was held that the consideration for condonation of delay would not depend on the status of the party namely the Government or Public Bodies so as to apply a different yardstick, but ultimate consideration should be to render even-handed justice to the parties. Even in such a case, the condonation of delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background, while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating ‘sufficient cause’ to justify the delay which will depend on the backdrop of each case and will have to be

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waived carefully by the courts based on the fact situation.

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It is submitted that the Appellant has failed to account for the delay. The Appeal was filed almost one month after the order was passed by the Hon’ble Supreme Court in the SLP. Admittedly, the Applicant had consulted the Ld. Solicitor General of India and received his opinion in this regard on 27.01.2020. Despite this, the Misc. Appeal which essentially replicates the contents of the previous Appeal No. 01 of 2018 and the Review Application, was filed only on 20.02.2020. The Applicant has not made any effort to explain the intervening period of over three weeks between 27.01.2020 and 20.02.2020.

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The Ld. Counsel would further contend that the provisions under Sec. 14 of the Limitation Act have no application to the present case. It is submitted that none of the essential conditions for the application of Sec. 14 is that the prior proceedings must have been pursued with due diligence and in good faith. The Ld. Counsel relies on the decision of the Hon’ble Supreme Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Ors. (2008) 7 SCC 169 . The Ld. Counsel submits that Sec. 14 will not help a party who is guilty of negligence, lapse or inaction. He submits that nothing shall be deemed to be in good faith which is not done with due care and attention relying upon the term ‘good faith’ defined in Sec. 2 (h) of the Limitation Act.

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The Ld. Counsel submits that a bare perusal of the chronology amply reflects attempts by the Applicant, at every stage, to delay, obstruct and frustrate the proceedings initiated by the Respondent for recovery of its dues. It is submitted that had the Applicant exercised due diligence, it

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would have filed the Review Application in the first instance instead of filing it after preferring the Misc. Appeal No. 01 of 2018 and during the pendency thereof. According to him, the Review Application was evidently filed for the collateral reason and with the malafide intention of evading the statutory obligation of effective a pre-deposit as a condition precedent to entertaining the said Appeal. While rejecting the application for condonation of delay the D.R.T. has observed that the Appeal preferred by the Applicant was withdrawn only as an afterthought to escape the burden of pre-deposit before the Appellate Tribunal. The Appellant had in so many words admitted that the decision to withdraw the Appeal and filed a Review instead was after due consideration and consultation with their counsel. The Ld. Counsel for the Respondent would have also pointed out that a Review Application filed during the pendency of an Appeal was ex-facie non-maintainable. Barring the bald assertions made in this regard, the Applicant has failed to lead any evidence to substantiate its case under Sec. 14 of the Limitation Act. The Ld. Counsel relies upon a decision of the Hon’ble Bombay High Court in Foreshore Co-operative Housing Society Ltd. vs. Praveen Desai & Ors 2006 SCC OnLine Bom 72 to substantiate the point that mere averments in the pleadings as to institution and /or prosecution of the prior proceedings in good faith would not be sufficient. It was further held that the party seeking exclusion of time under Sec. 14 of the Limitation Act will have to establish by leading evidence that proceedings were initiated in good faith and thereafter were being prosecuted in good faith. The aforesaid decision of the Hon’ble Bombay High Court has been affirmed by the Division Bench reported in (2009) 2 Mah LJ 28 .

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The Ld. Counsel for the Respondent points out that the Appellant's conduct would itself disentitle it to seek any relief. Separate applications were filed for condonation of delay only on 26.04.2021 almost a year after filing the Misc. Appeal. The Appellant has consistently resorted to dilatory tactics to derail the execution proceedings initiated by the Respondent which would notably frustrate the very specific purpose for which the RDB Act was enacted. The Ld. Counsel relies upon the decision of the Hon’ble Supreme Court in Standard Chartered Bank vs. Dharminder Bhohi (2013) 15 SCC 341 to highlight the need for expeditious disposal of the recovery proceeding. the Ld. Counsel also brings to the notice of this Tribunal that the Appellant’s conduct is contrary to the action plan of the Government dated 13.06.2017 issued by the Department of Justice, Ministry of Law and Justice, which specifically provides that filing of unnecessary Appeals should be avoided and Appeal should be filed only in cases where there is a substantial policy matter. It is further submitted by the learned counsel for the Respondent that the appeal itself is not maintainable in view of the bar under Order 23 of the Code of Civil Procedure. The Appellant had withdrawn and/or abandoned its challenge against the impugned order without obtaining the requisite leave to institute fresh proceedings in respect of the same. It is submitted that the principles under Order 23 CPC are a principle of public policy that applies to legal proceedings dehors the CPC. The learned counsel relies on the decision Sarguja Transport Service vs. State Transport Appellate Tribunal, MP, Gwalior & Ors (1987) 1 SCC 5 wherein the Hon'ble Supreme Court held that the principal was founded on public policy and explained the principle of observing that, " whoever waives, abandons or disclaims the right will

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lose it ."

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Referring to the findings in Sarguja transport, (supra) the Hon'ble Supreme Court in Upadhyay & Co vs. State of UP & Ors (1999) 1 SCC 81 reiterated that the ban on fresh filing is a principle of public policy. Further, in Krashankumar Balakram Pande, Baroda vs. Municipal Corporation of the city of Baroda & Anr 1989 SCC OnLine Guj 12 , the principal was extended to and applied in the context of civil applications. Contradicting the argument of the Appellant that Order 23 CPC would not apply in view of the provisions under section 23 of the RDB Act, the learned counsel relies on the decision in Standard Chartered Bank vs. India Glycols Ltd. 2014 SCC OnLine Del 3859 wherein the Hon'ble Delhi High Court has held that the Tribunal is empowered to apply the rules of CPC as a part of its procedure. The learned counsel also submits that the decision of the Hon'ble Supreme Court in Improvement Trust, Ludhiana (supra) relied upon by the Appellant is not applicable to the facts of this case because it was observed in the facts and circumstances of that case, it was held that, from the conduct, behaviour and attitude of the Appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. The finding, in that case, was that unless malafide is our writ large on the conduct of the party, generally as a normal rule, the delay should be condoned. But in the instant case, malafide is writ large on the conduct of the party which has been explained before and hence the decision has no application to the present case.

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The learned counsel for the Appellant has sought indulgence on the part of this Tribunal to condone the delay on the ground that the

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Appellant is that Government-owned public undertaking and that decisions are to be taken at the Governmental level by the Department. Apart from the decision in the University of Delhi (supra) relied upon by the counsel for the Respondent, wherein it was held that the consideration for condonation of delay would not depend on the status of the party namely the Government or Public Bodies so as to apply a different yardstick, but ultimate consideration should be to render even-handed justice to the parties. I would also rely on an earlier decision of the Hon'ble Supreme Court reported in Postmaster General & Ors vs. Living Media India Ltd. & Anr (2012) 3 SCC 563 , wherein it is held thus:

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“27. It is not in dispute that the person(s) concerned were well aware are conversant with the issues including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent person(s) familiar with Court proceedings. In the absence of a plausible and acceptable explanation, we are posing a question of why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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Though we are conscious of the fact that in a matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice. We are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of personal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technology that is being used and available. The law of limitation undoubtedly binds everybody, including the government

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In our view, it is the right time to inform all Government bodies, their agencies and instrumentalities that unless they have a reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the files were kept pending for several months/years due to considerable degree of procedural red tape in the process. Government Departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments the law shelters everyone under the same light and should not be swirled for the benefit of a few.”

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The Appellant is a recalcitrant litigant and was far from being

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vigilant in prosecuting its case. It is stated that they were misled by relying on the pre-amended provision of filing the Review application provided in the DRT Rules and hence, filed the application late. But ignorance of the law is no excuse, particularly when there were legal stalwarts to assist the Appellant and advise them throughout. The law assists only those who are vigilant about their rights and not those who sleep over them as says Latin maxim: Vigilantibus Non-Dormientibus Jura Subveniunt . There is no doubt that there was delay and laches on the part of the Appellant. It is true that a hyper-technical or pedantic approach should not be taken in the matter of condonation of delay nevertheless, it is essential for any party, even a public sector or a Governmental agency to explain "sufficient cause" in order to get the delay condoned. I would not insist on the Appellant explaining each day's delay but at least the excuses made by the Appellant for not filing the appeal on time should be plausible. Section 14 of the Limitation Act is meant to protect litigants who were litigating bona fide before a different forum. In the instant case, the Appellant was aware that proceedings have been pending against it for a fairly long time and therefore, the reasons for litigating for an untenable position were obvious. The dismissal of the review petition was not challenged before this Tribunal for obvious reasons. The embargo under Order 23 CPC squarely applies to the facts and circumstances of this case because the Appellant had withdrawn the earlier appeal without any reservations of liberty. The power to allow withdrawal of suit is discretionary, and the principle under Order 23 Rule 1(3) CPC is founded on public policy to prevent the institution of suit again and again on the same cause of action. Further, the suit may be withdrawn with permission

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to bring a fresh suit only when the court is satisfied that the suit must fail for the reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit, See V. Rajendran v. Annasamy Pandian , (2017) 5 SCC 63 .

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A review petition under Section 114 of the C.P.C cannot be filed where the Appellant exercises his right to file an appeal. It reads, “Subject as aforesaid, any person considering himself aggrieved—

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( a ) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.”

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In the instant case, the Appellant had already exercised its right to file an appeal challenging the impugned order. After having done that the reasons for filing a review and then withdrawing the appeal are too obvious. The Catena of decisions relied upon by the Appellant does not come to its assistance for any practical purposes of getting the delay condoned. I am therefore of the considered view that the Appellant is not entitled to get the delay of 856 days condoned. The application for condonation of delay is consequently dismissed.

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In the result IA 43 of 2021 stands dismissed. In consequence, the appeal at Diary No. 146 of 2021 cannot be taken on the file and is also dismissed. All other interlocutory applications, if any pending shall also stand dismissed.

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Sd/Chairperson

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mks-02

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Mstc Limited v. Standard Chartered Bank

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Mstc Limited v. Standard Chartered Bank

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