The Tribunal dismissed an application seeking condonation of delay and held the appeal time-barred, finding no sufficient cause or bona fide belief justifying the lateness.
Application for condonation of delay under Section 5 of the Limitation Act was dismissed; Appeal dismissed as time barred.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
Appeal No. 242 of 2017
(Arising out of S.A. 499 of 2013 in DRT, Hyderabad)
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
| 15.09.2022 | Gajjala Jayamma … Appellant -Vs- Canara Bank & 2 Others … Respondents |
|---|---|
| Mr. Nemani Srinivas, Learned Counsel for Appellant |
|
| Mr. Debasish Chakrabarti with Ms. Sharmistha Pal, Learned Counsel for Respondent Bank |
|
| Mr. Surajit Chakraborty, Learned Counsel for Respondent No. 2 |
THE APPELLATE TRIBUNAL :
Application No. 576 of 2017
The instant application has been filed under Section 5 of the Limitation Act praying for condoning 562 days the delay in filing the appeal.
2. Heard the Learned Counsel for the Appellant as well as Learned Counsel for Respondents 1, 2 and 3.
3. The instant appeal was filed on 26th October, 2017. Grounds stated in paragraphs 5 to 7 of the application under Section 5 of the Limitation Act reflects that the Appellant was well aware of the impugned order dated 11th April, 2016 but kept on waiting for settlement by the Bank although no proposal for settlement was submitted by the Appellant to the Bank. Further, as per the application, a Writ Petition, bearing No. WP 7315 of 2017, was filed by the Auction Purchaser. The Appellant after receiving the notice, kept on waiting for disposal of the Writ Petition under the impression that Bank will settle the matter. Further, during pendency of the writ petition, Proceedings under Section 14 of the SARFAESI Act was initiated by the Bank, hence SARFAESI Application No. 1398 of 2017
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was filed by the Appellant which was dismissed by the Learned DRT. Thereafter an appeal, being Appeal No. 250 of 2018, was filed by the Appellant before the this Appellate Tribunal wherein on 2nd May, 2022 Appellant was asked to make a deposit of Rs.10.00 lac as pre deposit which was not deposited. Thereafter, Appellant has filed the instant appeal challenging the order dated 11th April, 2016.
4. Learned Counsel for the Appellant submits that the Appellant was willing to settle the matter was also under a bona fide belief that a settlement would be arrived at which, however, could not be arrived at.
5. Learned Counsel for Respondent opposes stating that no good ground and/or sufficient ground has been shown by the Appellant for condoning the delay.
6. As per assertions made in the application under Section 5 of the Limitation Act, it is apparent that the impugned order was well within the knowledge of the Appellant but on one ground or the other Appellant did not file the appeal. Although Section 14 of the Limitation Act provides for exclusion of time spent in prosecuting the proceedings but such acts should be bona fide.
7. In Consolidated Engg. Enterprises -Vs- Principal Secretary Irrigation Department & Others [Civil Appeal No. 2461 of 2008] decided on 03rd April, 2008 Hon'ble Apex Court in Para 12 of the judgment held that on analysis of the sald Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
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(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a Court.
8. It was further held that it should be borne in mind that an element of mistake is inherent in the Invocation of Section 14. Equity underlying Section 14 should be applied to its fullest extent and time taken in diligently pursuing a remedy, in a wrong Court, should be excluded.
9. Appellant had not prosecuted the proceedings in good faith and with due diligence and the conditions, as laid down by the Hon’ble Apex Court, are not satisfied; rather, it is clear that the Appellant with a mala fie intention did not file the appeal within time.
10. In the present case, Appellant was waiting for the result of the writ petition thereafter the Appellant filed a SARFAESI Application, being S.A. 1398 of 2017, wherein the Appellant, failing to get any relief, preferred to file the present appeal. Benefit of Section 5 of the Limitation Act can only be extended when sufficient cause is shown and while extending the benefit, bona fide of the Appellant is also to be looked into by the Court. In the present case, Appellant failed to show any sufficient cause for condoning the delay in filing the present appeal. I do not find any ground or reason to condone the delay.
Accordingly, Application No. 576 of 2017, under Section 5 of the Limitation Act, is dismissed.
Accordingly, the appeal, being Appeal No. 242 of 2017, also stands dismissed as time barred.
Copy of the order be supplied to Appellants and the Respondent Bank and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order dictated, signed, dated and pronounced in open Court.
Dated: 15th September, 2022 03/ac
(Anil Kumar Srivastava,J) Chairperson
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1 issue framed by the court
Whether the delay of 562 days in filing the appeal should be condoned under Section 5 of the Limitation Act.
Colour shows how this judgement treated each authority
Consolidated Engg. Enterprises -Vs- Principal Secretary Irrigation Department & OthersReferred¶7
Consolidated Engg. Enterprises -Vs- Principal Secretary Irrigation Department & Others [Civil Appeal No. 2461 of 2008]
1 provisions across 1 enactments
Gajjala Jayamma
Canara Bank
Anil Kumar Srivastava
As recorded by the court registry
7 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
