Dismissed

LIC Housing Finance Ltd. v. c.Pazhamudhir pangi & Anr.

DRAT11 Nov 2022REGULAR APPEAL/49/2015

Case brief

AI extract

What is this about?

The Tribunal dismissed an application seeking to condone a delay of 1369 days to set aside an Appeal Order dated 03.05.2018. The Court held the order was not ex parte as it was decided on merits, rendering the application for setting aside and condoning delay devoid of merit and dismissible.

What did the court decide?

Application IA 142/2022 dismissed with no order as to costs; other Application to set aside Order dated 03.05.2018 rejected.

LIC Housing Finance Ltd. versus c.Pazhamudhir pangi… — Civil Procedure and Limitation | DRAT (2022)

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IA-142/2022 in RA (SA) 49/2015

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 11^th of November, 2022

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar

CHAIRPERSON

IA-142/2022

RA (SA) 49/2015

[SA 144/2011 on the file of DRT, Madurai)

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Between

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Mrs. C. Pazhamudir Pangi, W/o, Mr. Edwin Samuel, No.4/116 Periyar Street, Pudhukudi Road Melavaladi, Lalgudi Taluk, Tiruchirappalli District.

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……Petitioner/1^st Respondent

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And

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The Authorised Officer, M/s. LIC Housing Finance Ltd., Nos. 35/1 and 35/2, Aumudha Sree Flats, Reynolds Road, Cantonment, Trichy.

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…1^st Respondent/Appellant

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Mrs. M. Pitchaiammal, W/o Sadha Muthukrishnan, Plot No.130, NGO Nagar, Nanjikkottai Road, Thanjavur.

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…..2^nd Respondents/2^nd Respondent

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For Petitioner : M/s. J. Srinivasan For Respondent No.1 : Mr. K. Ramesh for M/s. Ramalingam & Associates For Respondent No.2 : M/s. S. Kasirajan

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IA-142/2022 in RA (SA) 49/2015

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ORDER

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This Application is filed to condone delay of 1369 days in filing Application to set aside Order dated 03.05.2018 passed in RA (SA) 49/2015.

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Petitioner herein, who is first Respondent in above referred Appeal in RA (SA) 49/2015, filed her Affidavit in support of Petition stating that, she entered appearance in the Appeal through her Counsel Mr. R. Chellappa to contest the Appeal, but to her ill-luck, her Counsel died on 11.05.2016, and she came to know about said demise only in the month of June, 2020, and thereafter she made an enquiry about her case and came to know that the Appeal was allowed on 03.05.2018 in her absence and also in the absence of her Counsel, and she took steps to get a copy of Order, and thereafter, engaged a new Counsel. She contended, due to second wave of Corona pandemic and also shifting of this Tribunal from Egmore to Nungambakkam, she

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IA-142/2022 in RA (SA) 49/2015

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could not file Application at the earliest point of time, as she is residing at Tiruchi, and not able to travel to Chennai frequently due to her age and ill health. She contended that Order dated 03.05.2018 is liable to be set aside on the principle of Audi Alteram Partem, as she was not heard, and as she got a good case, delay of 1369 days in filing Application to set aside Order dated 03.05.2018 is to be condoned.

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First Respondent resisted the Application and filed Counter contending that the Application as filed is not maintainable, and cannot be admitted. It is also contended that Petitioner has not bothered about the Appeal, and the statement made on the face of it shows her negligence. It is further contended that in spite of enough opportunities, Petitioner could not utilize them to the reason best known to her, and failed to take part in the Appeal proceedings, and now she cannot contend that she has to be heard under the principle of Audi Alteram Partem. It is further contended that Petitioner does not even taken care to calculate the actual

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IA-142/2022 in RA (SA) 49/2015

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days of delay, and there is no proper explanation for each day delay, and Application is liable to be dismissed.

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Heard Advocates of both the parties.

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Advocates for respective parties reiterated the

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contentions of their respective clients at the time of oral submissions.

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As already referred to above, this Application is filed to condone delay of 1369 days in filing Application to set aside the Order dated 03.05.2018. One of the contentions is that the Application as filed is not maintainable. As seen from records, Petitioner herein filed SA 144/2011 before DRT, Madurai, challenging the Sale, in which Respondent No.2 became the successful bidder. Tribunal below allowed SA 144/2011 on the ground that there is no service of Notice on Petitioner herein, as required under Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 [hereinafter called the

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IA-142/2022 in RA (SA) 49/2015

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Rules, 2002], and thereby set aside the measures taken out by first Respondent Institution under SARFAESI Act, 2002, and consequently, set aside the Sale. Questioning the said Order, first Respondent Institution herein, preferred above referred Appeal RA (SA) 49/2015, and that Appeal is disposed of on 03.05.2018.

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According to Petitioner, as she was not given an opportunity, Order dated 03.05.2018 is to be set aside. If Order dated 03.05.2018 is an ex parte Order, then, Petitioner herein will have a right to apply for setting aside ex part e Order. As seen from Order dated 03.05.2018, it is not an ex parte Order. The Appeal is decided on merits. As Tribunal below quashed the measures initiated by first Respondent Institution herein on the ground that there was no service of Notice on Petitioner as required under Rule 8 (6) of Rules, 2002, this Tribunal, on scrutiny of records, held that Tribunal below committed an error because Petitioner herein has got two addresses, and Notice was sent to the address given in

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IA-142/2022 in RA (SA) 49/2015

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loan documents on which it was duly served, but Petitioner herein has given different address in SARFAESI Application, and contended that no Notice is taken out on that address, and that aspect is accepted by Tribunal below, which was ultimately set aside by this Tribunal through Order dated 03.05.2018. Therefore, as rightly pointed out by Advocate for 1^st Respondent Institution, Application filed by Petitioner is not maintainable when the Order dated 03.05.2018 is not an ex parte Order, and the question of setting aside such Order by the same Court, does not arise. Simply because, Petitioner was not present at the time of hearing of the Appeal, Order dated 03.05.2018 cannot be termed as an ex parte Order, because Appellate Tribunal has every power to decide the matter on merits in the absence of parties. Therefore, the question of setting aside such Order, by condoning inordinate delay in filing an Application to set aside such Order, does not arise.

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IA-142/2022 in RA (SA) 49/2015

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For the reasons stated above, I am of the considered

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view that the Application is completely devoid of merits and is liable to be dismissed.

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In the result, Application IA 142/2022 is dismissed with

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no order as to costs. Consequently, the other Application to

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set aside the Order dated 03.05.2018 stands rejected.

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[Dictated to Athistamani, PS, transcribed by her, corrected, signed and pronounced by me in open court, this 11^th of November, 2022]

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Sd/-

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[ Justice S. Ravi Kumar ]

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CHAIRPERSON

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LIC Housing Finance Ltd. v. c.Pazhamudhir pangi & Anr.

Case brief

What is this about?

What did the court decide?

LIC Housing Finance Ltd. v. c.Pazhamudhir pangi & Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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