Dismissed

Kai Sushilatai Gaikwad Bhauddeshiya Sanstha v. Bombay Mecantile Co-Op Bank Ltd.

DRAT19 Jul 2022MISC APPLICATION/8/2021

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal dismissed an application to restore a previous restoration application. The court held that the appellants failed to prosecute their case vigilantly, allowing their counsel to be absent, and the Tribunal was functus officio due to prior dismissal attempts.

What did the court decide?

The application M.A. No. 8 of 2021 stands dismissed with no indulgence shown to the appellants.

Kai Sushilatai Gaikwad Bhauddeshiya Sanstha versus Bombay Mecantile… — Arbitration | DRAT (2022)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present : Mr. Justice Ashok Menon, Chairperson

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M.A. No. 8/2021 (Restoration) In

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[M.A. No. 107/2019 (Restoration)– Disposed of] In

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(Appeal No. 75/2017 – disposed of)

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Between

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Kai Sushilatai Gaikwad Bahuddeshiya Sanstha, … Appellant/s Solapur & Ors.

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V/s.

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Bombay Mercantile Co-operative Bank Ltd. … Respondent/s Mr. Aviraj Tarar, Advocate for Appellants.

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Mr. Alok Mishra, Advocate for Respondent.

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-: Order dated: 19/07/2022:-

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This is an application filed by the Appellants in the above mentioned Appeal No.75 of 2017. The Appellants had filed an application for amendment of the appeal. That application was allowed and the applicant was directed to carry out the amendment. The amendment was not carried out in time, and consequent to that, the appeal was dismissed on 10/12/2018. The Appellants filed M.A. No. 107 of 2019, on 24/12/2018 to get the appeal restored to file. On 22/10/2019, there was no representation for the applicant and in consequence to that, the Restoration Application No. 107 of 2019, was dismissed for default. The present application is filed for restoring M.A. No. 107 of 2019 to the files of this Tribunal.

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The Appellants had filed the appeal challenging the dismissal of S.A. No. 20 of 2016 by the Debts Recovery Tribunal (DRT for short). The Appellants had also filed M.A. No. 300 of 2017, seeking

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waiver of pre-deposit. This Tribunal had on 31/03/2017, directed the Appellants, a deposit of 50% of the notice amount within two weeks in two installments. The Appellants deposited the first installment within time, and thereafter preferred a Writ Petition No. 1015/2017 before the Hon’ble High Court of Bombay. Recording that the parties have entered an amicable settlement, the Writ Petition was dismissed. As per the settlement, the Appellants had deposited � 20 lakhs on 08/06/2017. Subsequently, the appeal was dismissed for default, as stated above.

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The Appellants state that there is a good case for them in appeal and the hence the application for restoration may be allowed. 4. The first Respondent Bank has filed a reply affidavit vehemently opposing the application for restoration. It is pointed out that on 18/12/2017, this Tribunal had directed the Appellants to carry out the amendments by joining Invent Asset Securitisation and Reconstruction Private Ltd and assignee of the loan from the Respondent. The Appellants failed to comply with the aforesaid order for about an year. Eventually, on 10/12/2018, the appeal was dismissed. The Appellant filed M.A. No. 107 of 2019 for restoration of the appeal and to carry out the amendments. It is pointed out that the the prior to carry out amendments had already become infectious in view of of the dismissal of the appeal, rendering this Tribunal functus officio. No acceptable reasons whatsoever has been offered by the Appellants to get the appeal restored. Subsequently, M.A. No. 107 of 2019 to was dismissed for default on 22/10/2019. In the present application for restoration of that M.A., the applicants are not come out with any acceptable explanation. It is stated that the counsel appearing for the applicants was not able to reach due to unavoidable circumstances and even expressed his apology before

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the Tribunal, but by the time, the application was already dismissed. It is stated that the reasons for getting the application is vague and lacking in necessary particulars. The Appellants have taken a very casual attitude in prosecuting the appeal. A perusal of the daily orders would indicate that the Appellants have been negligent in conducting the appeal. By filing the application for restoration of the appeal, and thereafter, letting that to be dismissed for default and then coming up with an application for restoration of that application indicates that the only intention of the Appellants is to protract the recovery proceedings pending against them. There is total lack of bona fide on the part of the Appellant in filing the repeated applications for restoration. Hence, it is prayed that the application may be dismissed with costs.

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Heard Mr Aviraj Tarar, the learned counsel appearing for the Appellants and Mr Alok Misra, the learned counsel appearing for the Respondent. Records perused.

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The learned counsel for the Appellant submits that the restoration application No. 107/2019, was dismissed because there was delay in the counsel appearing before the Tribunal. The application has been filed immediately without any delay, and therefore, it is prayed that the application may be allowed.

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The learned counsel for the respondent has pointed out that M.A. No. 107 of 2019, which is now sought to be restored, cannot be entertained because there is also a prayer for carrying out the amendment, which was not carried out. It is in consequence of that that the appeal was dismissed. The learned counsel relies on the decision of the Hon'ble Supreme Court in State of Orissa vs. Madan Gopal Rungta AIR 1952 SC 12 to support his argument that the

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Tribunal has become functus officio consequent to the dismissal of the appeal and therefore the prior for amendment could not have been carried out.

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The Appellants have not come up with any sufficient acceptable explanation for not prosecuting the application for restoration of the appeal. There is a strong indication that the Appellants have been purchasing time to repay the debt, which is admitted by them. Subsequent to the direction of this Court to pay the pre-deposit amount, the Appellant had approached the Hon'ble Bombay High Court and thereafter, it was submitted that the matter has been settled amicably and the Writ Petition, dismissed. Law will assist only those who are vigilant about their rights and not those who sleep over them as says the Latin maxim Vigilantibus Non Dormientibus Jura Subveniunt .

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On going through the entirety of the facts and circumstances of this case, I find that the applicants stand no chance to get the application for restoration of the appeal restored to file. There are no good reasons for the non-prosecution of the application. This Tribunal had granted several adjournments and the Appellants were not vigilant in prosecuting the appeal or the application for restoration. Ultimately, when the application was posted for dismissal, the Appellants' counsel absented himself. No indulgence can be shown in this matter. The application deserves to be dismissed.

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In the result, M.A. No. 8 of 2021, stands dismissed.

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Sd/Chairperson

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dpj-30

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Kai Sushilatai Gaikwad Bhauddeshiya Sanstha v. Bombay Mecantile Co-Op Bank Ltd.

Case brief

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Kai Sushilatai Gaikwad Bhauddeshiya Sanstha v. Bombay Mecantile Co-Op Bank Ltd.

Case brief

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