Application for restoration of a dismissed appeal dismissed. Appellant claimed absence due to floods but explanation found unconvincing. Case closed due to Akku promising relief to third parties/bank regarding SARFAESI sale.
Application M.A. 580 of 2019 dismissed; no restoration of Appeal No. 185/2011 granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT : MUMBAI Present : Mr. Justice Ashok Menon, Chairperson
M.A. No. 580/2019 (Restoration) In (Appeal No. 185/2011- Disposed of)
Between
M/s. Tirupati Development Corporation … Appellant/s V/s.
Jana Seva Sahakari Bank Ltd. & Ors. …Respondent/s
Mr. Rajesh Maravoor, i/b M/s. Maravoor Wamorkar & Co., Advocate for Appellant.
Mr. Prashant J. Pandit a/w Mr. Jay Pandit, Advocate for Respondent No.1.
-: Order dated : 28/06/2022 :-
This is an application filed for restoration of an Appeal No. 185/2011 which was dismissed by this Tribunal for non-appearance for the Appellant as well as Counsel on 03.07.2019. The Appellant has filed this application stating that he could not appear because of heavy rains in Amarawati from where he hails and because the entire area was flooded, he was not able to move out and come to Mumbai on that particular date. There was no explanation forthcoming regarding the reason for absence of counsel on that particular date. From the proceedings prior to the date of dismissal, it is seen that neither the Appellant nor the Counsel were present continuously on several dates and this Tribunal had posted the matter specifically for hearing on 03.07.2019 with a direction that the parties shall get ready or Appeal would be dismissed. It is under such circumstances that the Appeal was dismissed for nonprosecution. When a party who is litigating engages a counsel his
personal appearance may not be essential, particularly being an Appeal, it is for the counsel to appear and argue the Appeal. There is nothing stated in the present application and affidavit as to why the Appellant’s Counsel was not present on that date or on the dates preceding the date of dismissal.
I find that the explanation offered by the Appellant to set aside the order of the dismissal of the Appeal is not convincing and requires no consideration by this Tribunal. It is also pertinent to note that consequent to the disposal of the Appeal SARFAESI proceedings initiated, progressed and the secured assets were also sold and the entire amount due from the Appellant to the first Respondent Bank realized. Third parties are presently in possession of the property. In case the Appeal of the year 2011 is again restored it would cause great injustice to the third parties as also prejudice to the Respondent Bank.
Under the circumstances, I find that the application requires no consideration and there are no grounds for restoring the Appeal. Consequently the application M.A. 580 of 2019 is dismissed.
Sd/Chairperson
mks-8
2 issues framed by the court
Whether the application for restoration of the appeal dismissed for non-appearance due to alleged floods requires to be allowed.
Whether the relitigation of the disposed appeal would cause injustice to third parties and prejudice to the bank as the amount was already realized.
M/s. Tirupati Development Corporation
Jana Seva Sahakari Bank Ltd.
Ashok Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
