Allowed

Bharat Bhusan Pati v. Allahabad Bank

DRAT14 Jun 2022REGULAR APPEAL/33/2020

Case brief

AI extract

What is this about?

The Tribunal allowed the appeal against an order confirming the sale of auction property. It quashed the lower Tribunal's order that had accepted a belated application challenging the sale and condoned a delay of over five hundred days for filing it, holding the application to be time-barred.

What did the court decide?

The impugned order allowing the application and condoning delay was set aside. The application for condonation of delay was dismissed as time-barred, and the Chapter V application was dismissed.

Bharat Bhusan Pati versus Allahabad Bank — Specific Performance | DRAT (2022)

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Appeal No. 33 of 2020-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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(Appeal No. 33 of 2020)

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(Arising out of Diary No. 1947 of 2019 in DRT, Cuttack)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

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CHAIRPERSON

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Bharat Bhusan Pati , Son of Sri Krushna Chandra Pati, Resident of Plot No. E-A-20, Badagada Brit Colony, Post Office/Police Station: Badagada, Bhubaneswar – 751 018, District : Khurda.

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… Appellant

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-Versus-

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Authorised Officer, Allahabad Bank (Presently Indian Bank), Zonal Office at 3/1-B, IRC Village, Post Office and Police Station: Nayapatti, Bhubaneswar – 751 112, District: Khurda;

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Chief Manager, Allahabad Bank (Presently Indian Bank), Main Branch, Plot No. 159, Bapuji Nagar, Police Station: Capital, Bhubaneswar – 751 009, District: Khurda;

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Sri Bhibhu Ranjan Nayak, Son of Sri Bata Krushna Nayak, resident of 2981/5255, Megheswar Colony, 4^th Lane, Badagada Brit Colony, Bhubaneswar – 751 018, District: Khurda;

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Smt. Selina Nayak, Wife of Sri Bhibhu Ranjan Nayak, resident of 2981/5255, Megheswar Colony, 4^th Lane, Badagada Brit Colony, Bhubaneswar – 751 018, District: Khurda;

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Collector & District Magistrate, Khurda.

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Counsel for the Appellant … Mr. Nemani Srinivas Counsel for Respondent Bank … Mr. Debasish Chakrabarti with Ms. Sharmistha Pal Respondents No. 3 & 4 … Not represented JUDGMENT : 14 .06.2022

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THE APPELLATE TRIBUNAL :

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Instant Appeal arises out of an order dated 16^th March, 2019 passed by Learned Debts Recovery Tribunal, Cuttack in S.A. 1947 of 2019 in M.A. 1951 of 2019 wherein Learned DRT had allowed this application and condoned the delay in filing the S.A. 2. Aggrieved by the impugned order Appellant, the auction purchaser, has preferred this appeal.

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Appeal No. 33 of 2020-DRAT-Kolkata 3. In the appeal, notices were issued to the Respondents wherein the Respondents No. 1 and 2 have put in their appearance while Respondents No. 3, 4 and 5 have duly been served through newspaper publication but they have not put in their appearance. Accordingly, I have heard the Learned Counsel for the Appellants and Respondents No. 1 and 2 and perused the record. 4. It appears that an application under Section 17 of the Sarfaesi Act 2002, being Diary No. 1947 of 2019 was preferred by Bhibhu Ranjan Nayak Nayak and Smt. Selina Nayak (Respondents No. 3 and 4 in the trial) before the Learned DRT, Cuttack on 24^th October, 2019. An application, in M.A. 1951 of 2019, under Section 5 of the Limitation Act for condonation of delay was also moved with the assertion that the petitioner has filed an S.A. for quashing the 13(2) and 13(4) notices and consequent sale conducted by the Bank and the proceedings before the Collector and District Magistrate, Khurda. Grounds taken for condonation of delay are narrated in para 3 of the application where it is stated that the petitioner came to know at a later stage that his property has been sold and he was shocked and depressed and also received notices from the opposite party No. 3 where Bank has initiated proceedings to take possession of the property and because of Cyclone Fony Appellant had been to his native village to repair his broken house and could not get time to consult his Counsel. Hence the delay caused by the Appellant was not deliberate or intentional.

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5. Learned DRT vide impugned order dated 16^th March, 2020 was of the view that due to health problem of the Appellant and the objection of the Respondent Bank that with an object of doing substantial justice to the parties and to give an opportunity to the Appellant and taking principles of natural justice, the delay in filing the S.A. was allowed.

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Learned Counsel for Appellants submitted that Respondents No. 3 and 4 have wrongly stated that there is delay of 42 days in filing the S.A.; rather, there is a delay for more than 500 days in filing the S.A.

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Appeal No. 33 of 2020-DRAT-Kolkata as all the proceedings from the inception, i.e. notice under Section 13 (2) and sale thereof has been challenged.

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It is further submitted by Learned Counsel for the Appellant that Respondents No. 3 and 4 have not come with clean hands before the Tribunal as two writ petitions, bearing numbers 16709 of 2018 and 7898 of 2019 were filed by the Respondents 3 and 4 before the Hon’ble High Court of Orissa but those facts have not been disclosed in the application under Section 17 or the application for condonation of delay.

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Learned Counsel further submits that the ground taken by the Respondents No. 3 and 4 in the application for condonation of delay is not substantiated by any material available on record even the number of days are not mentioned in the application. It is a general application wherein no specific ground is taken and day to day delay is not explained.

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Learned Counsel for Respondents No. 1 and 2 submits that the Respondents No. 3 and 4 have not filed the application with clean hands.

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It appears that notice under Section 13 (2)of the S.A. was issued on 17^th December, 2017, Possession Notice was issued on 19^th February, 2018, Sale Notice was issued on 31^st July, 2018, property was sold on 7^th September, 2018, sale WAS confirmed on 10^th April, 2019. Order under Section 14 of the SARFAESI Act 2002 was issued by District Magistrate on 24^th June, 2019, physical possession was delivered to the Appellant on 11^th July, 2019, sale deed was executed on 11^th September, 2019. In the delay condonation application, as well as application under Section 17 of the Sarfaesi Act 2002 Respondents No. 3 and 4 have challenged the whole proceedings, including the sale but have not explained the delay which is caused since 2017. Further it appears from the record that Respondents No. 3 and 4 have preferred a writ petition, bearing Nos. 16709 of 2018,

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Appeal No. 33 of 2020-DRAT-Kolkata before the Hon’ble High Court at Orissa which was disposed of on 28^th December, 2018 wherein it was ordered as under:

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“In view of the above, in case the petitioner deposits the amount as indicted in the above paragraph and files an application for regularization/re-phasement/settlement of the loan account, along with certified copy of this order, beoe the Bank his application shall be considered by the Bank within a period of six weeks from the date of filing of such application and the decision thereof be communicated to the petitioner and the decision thereof be communicated to the petitioner accordingly. The opposite party bank shall not finalize the e-auction till a decision is taken by the Bank on his application. It is needless to say that in case the petitioner fails to comply with the undertaking as given by learned counsel for the petitioner, it is open to the Bank to proceed with the matter as per the statutory provision. It is also needless to mention here that in case the petitioner will cler up the loan dues, the expenses towards auction notice, auction, etc., shall be borne by him.”

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Directions, issued by the Hon’ble High Court, were not complied with. Another writ petition, bearing No. 7896 of 2019 was preferred before the Hon’ble High Court, Orissa which was dismissed by the Division Bench on 17^th April, 2019. It was observed that sale has already been confirmed on 10^th April, 2019 and Respondents No. 3 and 4 have not complied with the direction issued by the Hon’ble High Court on 20^th December, 2018. These facts have not been stated either in the application under Section 17 of the Sarfaesi Act 2002 or in the application for condonation of delay which shows that Respondents No. 3 and 4 have not moved the application with clean hands. They have suppressed material facts.

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As far as grounds for condonation of delay is concerned, no specific period is mentioned for which prayer for condonation of delay is made. Although, in view of the order of the Learned DRT, there is a delay of 42 days but Section 17 of the Sarfaesi Act 2002 says that all

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Appeal No. 33 of 2020-DRAT-Kolkata the proceedings were challenged wherein delay was for more than 500

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days. However, a ground for condoning the delay has been mentioned in para 3 to the effect that Respondents No. 3 and 4 came to know after the property was sold. Since they were shocked and depressed, they went to their native place and hence could not contact their Counsel and as such the delay was not intentional. Learned Presiding Officer in the impugned order has taken a new case wherein it is mentioned that due to health problem of the Appellant he found the ground for condoning the delay believable. It is settled legal proposition that Court cannot take a new case which has not been taken by the parties. Further Learned DRT has failed to appreciate the fact that there is delay of about 500 days and not 42 days which, however, has not been explained.

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In the facts and circumstances of the case, I am of the view that the delay in moving the SARFAESI application could not be explained. Learned DRT has misinterpreted the law. Finding recorded by Learned DRT is against facts and law and is liable to be set aside and appeal deserves to be allowed.

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O R D E R

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Accordingly, the appeal, being Appeal 33 of 2020, is allowed. The impugned order dated 16^th March, 2019 is hereby set aside. Application for condonation of delay in filing the S.A. stands dismissed. Accordingly, the S.A. is also dismissed as time barred.

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No order as to costs.

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File be consigned to Record room.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.

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Order dictated, signed and pronounced by me in the open Court on this the 14^th day of June, 2022.

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Appeal No. 33 of 2020-DRAT-Kolkata

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 14^th June, 2022 06/ac

Bharat Bhusan Pati v. Allahabad Bank

Case brief

What is this about?

What did the court decide?

Bharat Bhusan Pati v. Allahabad Bank

Case brief

What is this about?

What did the court decide?

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