Dismissed

Sha Skuraj Phoolchand and Commission Agents and Other v. the Haveri Cooperative Bank Ltd.

DRAT17 Aug 2022

Case brief

AI extract

What is this about?

This order dismisses an application to condone a delay of 4698 days in filing an appeal against a Debt Recovery Tribunal order. The Court rejected the appellants' explanation of death of partners and communication gaps as vague and insufficient, especially given that they participated in proceedings in 2018. Consequently, the appeal was rejected.

What did the court decide?

Application IA 162/2021 dismissed with costs; appeal A.IR:143/2020 rejected; other connected applications dismissed.

Sha Skuraj Phoolchand and Commission Agents and Other versus… — Banking and Recovery | DRAT (2022)

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IA-162/2021 in AIR 143/2020

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 17^th of August, 2022

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

CHAIRPERSON

IA-162/2021

AIR 143/2020

[OA 196/2005 on the file of DRT, Bangalore)

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Between

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Sha Pukraj Phoolchand

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General and Commission Agents,

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Haveri,

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A partnership Firm Rep. by A2 to A7.

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Sri Sha Devichand Shivalalji Jain,

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Partner, (Deceased)

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Rep. by legal heirs

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(2a) Shri Sha Dayalal Devichand Aged about 64 years, S/o Late Sha Devichand Shivalalji Jain

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M/s. Shanti Ceramic

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Shop No.27, Amar Samrudhi Near Aakashwani, Sholapur Road, Hadapsar, Purne - 411 028.

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IA-162/2021 in AIR 143/2020

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(2b) Shri Sha Pukraj Devichand Jain Aged about 61 years, S/o Late Sha Devichand Shivalalji Jain Residing at Haveri

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Sri Sha Phoolchand Devichand Jain Partner, (Deceased) Represented by legal heirs,

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(3a) Smt. Sundarbai P. Jain, Aged about 70 years W/o late Sha Phoolchand Devichand Jain Residing at Haveri

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(3b) Shri Rakeshkumar P. Jain Aged about 42 years S/o Late Sha Phoolchand Devichand Jain Residing at Haveri

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Sri Sha Dayalal Devichand Jain Partner, Residing at Haveri

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Sri Sha Pukaraj Devichand Jain Partner, Residing at Haveri

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Sri Sha Ganeshmal Devichand Jain Partner (Deceased) Represented by legal heirs

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(6a) Smt. Jayamala Ganeshmal D. Jain Aged about 52 years W/o Late Sha Ganeshmal Devichand Jain

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(6b) Shri Hemanth Ganeshmal D. Jain Aged about 25 years S/o Late Sha Ganeshmal Devichand Jain Both are residing at Haveri

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IA-162/2021 in AIR 143/2020

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Smt. Nanda Bai, W/o Lalit Kumar Jain Partner, residing at Haveri

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……Petitioners/Appellants

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And

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The Haveri Urban Co-op. Bank Ltd., Melin Peth, P O Box No.13, Haveri - 581 110. 2. The Sri Ganapathy Mills Co. Ltd., Shankar Nagar, Thirunelveli - 527 357. Rep. by its Managing Director. 3. The Karur Vysya Bank Ltd., No.30, Trivandrum Road, Palayam Kottai - 672 002. Rep. by its Branch Manager. ….. Respondents For Petitioners : Mr. M.A. Rajendra, Advocate For Respondent No.1 Bank : M/s. Ajoy Kumar Gnanam

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IA-162/2021 in AIR 143/2020

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ORDER

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This Application is filed to condone delay of 4698 days in

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preferring Appeal against Order dated 28.12.2007 in OA 196/2005 on the file of DRT, Bangalore.

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Brief facts leading to this Appeal are as follows:

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First Respondent Bank initiated measures under Recovery

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of Debts and Bankruptcy Act (hereinafter called RDB Act, 1993) for recovery of its dues to the tune of Rs.27,36,565/- and filed OA. In OA, Defendants 1 to 7 remained ex part e, and only Defendant Nos. 8 & 9 filed Written Statement disputing the claim. Tribunal below on a consideration of material evidence, allowed OA by Order dated 28.12.2007 making Defendants 1 to 8, jointly and severally liable for a sum of Rs.27,36,565/- with interest at 18% p.a. from the date of Application till realization. Petitioners/Defendants 1 to 7, which includes Legal Representatives (LRs) of deceased Defendant Nos.2, 3, 6, filed

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IA-162/2021 in AIR 143/2020

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Application to condone delay of 4698 days in preferring the Appeal.

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Heard Learned Advocate of Petitioners/Appellants and Respondent No.1 Bank.

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Advocate for Petitioners/Appellants submitted that

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Petitioners herein are Defendant Nos. 1 to 7, and reasons for delay are explained in para 6 of the Affidavit filed in support of Petition. He submitted that there is no negligence on the part of Petitioners/Appellants in not preferring the Appeal in time, but it was only due to reasons beyond the control of

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Petitioners/Appellants, which are detailed in para 6 of the Affidavit. He submitted that no prejudice will be caused to Bank if an opportunity is given to Petitioners/Appellant to challenge Order dated 28.12.2007 and Petitioners/Appellants have a strong case to succeed in the Appeal, therefore, delay may be condoned.

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IA-162/2021 in AIR 143/2020

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On the other hand, Advocate for Respondent No.1 Bank submitted that OA claim is against Partnership Firms and Petitioner, who filed Affidavit on behalf of other

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Petitioners/Defendants, is not a partner in both the Partnership Deeds. He submitted that two other Defendants namely Defendant Nos. 4 and 5 are alive, and no reasons are given as to why they have not challenged the Order within the stipulated time. He further submitted, in OA, they have not filed any Written Statement, and there is absolutely no defence to be adjudicated. He further submitted the reasons given in para 6 of the Affidavit are not sufficient reasons to condone inordinate delay of 4698 days, and those reasons are very vague. It is further submitted, from the record it is clear that Defendants attended recovery proceedings and in spite of that Appeal is filed long after participating in the recovery proceedings. It is further submitted that detailed Counter is filed, and para 5 of Counter gives reasons for dismissal of Application, by considering them, the Application is liable to be dismissed.

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IA-162/2021 in AIR 143/2020

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As already referred to above, this Application is filed to condone delay of 4698 days in preferring Appeal against Order dated 28.12.2007 in OA 196/2005 on the file of DRT, Bangalore. According to Petitioners/Appellants, reasons for delay are explained in para 6 of the Affidavit, therefore, it may be necessary to examine the same. For better appreciation, it may be necessary to extract para 6 of the Affidavit, which is as follows:-

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“5. ……… 6. I state that the appellants No. 2, 3 and 6

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namely Sri Sha Devichand Shivalalji Jain, Sri Sha Phoolchand Devichand Jain and Sri Sha Ganeshmal Devichand Jain and another parter Sri Lalitkumar Jain expired and counsel on record also expired. Hence, there was communication gap and other problems on issue of legal heirs. The delay is due to genuine reasons and circumstances beyond our control. Hence, it is prayed to condone the delay of 4698 days in filing

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this Appeal.”

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IA-162/2021 in AIR 143/2020

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It is the specific contention of Respondent No.1 Bank that the above reasons are not sufficient reasons, and that too, they are vague, and therefore, inordinate delay of 4698 days cannot be condoned. From a reading of above para, reasons assigned by Petitioners/Appellants are that Appellant Nos. 2, 3 and 6 and another partner Lalitkumar Jain expired, and their Counsel on record also expired, and hence, there was communication gap and other problems on issue of legal heirs, therefore, these are the reasons for delay, and the same are genuine. As rightly pointed out by Advocate for Respondent No.1 Bank, the above referred reasons cannot be treated as sufficient and convincing reasons for condoning inordinate delay of 4698 days. Further, as rightly pointed out by Advocate for Respondent No.1 Bank, the above reasons are very vague. Nothing is whispered as to when Appellant Nos. 2, 3 and 6 and another partner Sri Lalitkumar Jain passed away, so also, Advocates on record expired. This is exactly the objection raised by Respondent No.1 Bank in para 5 of its Counter.

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IA-162/2021 in AIR 143/2020

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According to the Affidavit of Petitioners/Appellants, the delay was due to communication gap. Respondent No.1 Bank in its Counter specifically stated that Petitioners/Appellants had participated in DRC No.5271 in the year 2018 and filed their objections to the Demand Notice on 27.08.2018. This statement of Bank is not disputed by Petitioners/Appellants by filing any additional Affidavit. So from these facts, at least by 27.08.2018, there is a communication to Petitioners/Appellants about Order dated 28.12.2007. Appeal is filed on 22.12.2020, which is around 2 ½ years after Petitioners/Appellants came to know about Order dated 28.12.2007, even if contention of

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Petitioners/Appellants is accepted for arguments sake, there is absolutely no explanation for this 2 ½ years period, leave alone sufficient explanation. As rightly pointed out by Advocate for Respondent No.1 Bank, inordinate delay of 4698 days cannot be condoned for mere asking on the ground that no prejudice will be caused to opposite party. Order passed in the year 2007 and recovery proceedings were in process till 2018, therefore, contention of Petitioners/Appellants that no prejudice would be

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IA-162/2021 in AIR 143/2020

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caused to Bank, cannot be accepted. Further, when there are no convincing cogent reasons for inordinate delay, the same cannot be condoned for the reason of giving an opportunity of contesting the case. On a scrutiny of entire material, I am of the considered view that Petitioners/Appellants failed to show sufficient reason for inordinate delay of 4698 days with cogent and convincing material, and therefore, the same cannot be condoned.

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In view of my above observations and discussions, Application filed by Petitioners/Appellants to condone delay of 4698 days in filing Appeal is devoid of merits and is liable to be dismissed. Accordingly, Application IA 162/2021 is dismissed

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with costs. Consequently, other Applications viz., IA 159/2021, IA 160/2021, IA 161/2021 (Grant Leave Petitions), IA 163/2021 (Waiver) and IA 164/2021 (Stay) are dismissed and Appeal A.IR:143/2020 is rejected.

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[Dictated to Athistamani, PS transcribed by her, corrected, signed and pronounced by me in open court, this 17^th of August, 2022]

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CHAIRPERSON

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Sha Skuraj Phoolchand and Commission Agents and Other v. the Haveri Cooperative Bank Ltd.

Case brief

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Sha Skuraj Phoolchand and Commission Agents and Other v. the Haveri Cooperative Bank Ltd.

Case brief

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