The Tribunal allowed an application for condonation of delay and warranted a waiver of pre-deposit. It allowed the appeal against the DRT's dismissal of a Secured Application, remitting the matter for a fresh hearing after recording reasons.
Appeal allowed; matter remitted to DRT to decide afresh after hearing parties.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
Appeal Dy No. 374 of 2021
(Arising out of MA 1261 of 2019 in SA 19 of 2019 DRT Cuttack)
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
15.02.2023
Geetanjali Mahapatra
… Appellant -VsAO, ICICI Bank & Ors.
… Respondents
Mr. P. K. Satpathy, ld. Counsel for the appellant.
Mr. Avishek Guha, ld. Counsel with Ms. I Ghosh, ld. counsel for the respondent.
THE APPELLATE TRIBUNAL :
I.A. 289 of 2021 is filed by the appellant u/s 5 of the Limitation Act praying for condonation of delay in filing the appeal. It appears from record that S.A. 19 of 2019 was dismissed by learned DRT Cuttack on 24.04.2019 in the absence of the S.A. applicant. S.A. was dismissed on merit. Thereafter, an application for recall of the order passed by the Tribunal was filed on 02.05.2019 which was also dismissed on 16.03.2020. A writ petition was filed before the Hon’ble High Court on 12.08.2020 being WP(c) 19423 of 2020 which was dismissed as withdrawn vide order dated 07.04.2021. Thereafter, this appeal was filed on 15.06.2021.
Learned counsel for the appellant submits that recall application was dismissed on 16.03.2020 thereafter there was nationwide lockdown due to Covid pandemic. In view of the judgement passed by Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 regarding cognizance for extension of limitation, the delay in filing the appeal could be condoned. Accordingly, all the subsequent actions are liable to be condoned. The I.A. No. 289 of 2021 is allowed. Delay in filing the appeal is condoned.
Appellant has also filed IA 287 of 2021 praying for waiver from making pre-deposit. Learned counsel for the appellant
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submits that appellant is neither borrower nor mortgager. He is cheated by the borrower.
Having considered the submission made by the appellant and gone through the record I am of the view that ground showed by the appellant proved to be sufficient for waiver from making pre-deposit as prescribed u/s 18(1) of the Act of 2002. Accordingly, I.A. 287 of 2021 is allowed.
Appeal is admitted. Regular Appeal number be provided. With the consent of learned counsel for the parties, Appeal is being heard on merit and disposed of on the basis of material available on record.
Instant appeal is preferred against the order passed by learned DRT dismissing the S.A. while on the date fixed the SARFAESI applicant was not represented. Learned DRT observed in the order that matter is pending for seven years. Learned DRT passed the order on merit dismissing the S.A.
Learned counsel for the appellant submits that delay was not intentional rather he wants to contest the S.A. on merit. Learned counsel further submits that he has a good case on merit.
Learned counsel for the respondents submits that main purpose of the appellant is to delay the proceeding. Hence, he was absent on the date of hearing and learned DRT dismissed the S.A. on merit.
Having considered the submission of the parties and gone through the records, I find that although the S.A. was pending for long time, but in the interest of justice further opportunity of the hearing be given to the S.A. applicant to contest the matter before learned DRT on merit. In the impugned order learned DRT has not recorded any reason for arriving at the finding recorded in the judgement. Accordingly, I am of the view that appeal deserves to be allowed by granting an opportunity of hearing of the application in accordance with law.
ORDER
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Appeal is allowed subject to payment of Rs.5,000/- (Rupees Five Thousand) costs to be paid to the Prime Minister Relief Fund within four weeks from today. Matter is remitted to learned DRT Cuttack to decide afresh after affording opportunity of hearing to the parties in accordance with law.
Parties are directed to appear before DRT Cuttack on 05.04.2023 for hearing. Learned DRT Cuttack shall make an endeavour to decide the S.A. expeditiously.
File be consigned to record room.
Copy of the order be supplied to the appellant and the respondents and a copy be also forwarded to the concerned DRT. Copy of the judgement/Final Order be uploaded in the Tribunal’s website.
(Anil Kumar Srivastava,J) Chairperson
Dated: 15 February, 2023 07/pkb
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3 issues framed by the court
Whether condonation of delay in filing the appeal is warranted given the national lockdown.
Whether the waiver of pre-deposit is justified as the appellant is neither borrower nor mortgager.
Whether the impugned order deserves to be allowed by granting an opportunity of hearing due to lack of recorded reasons.
1 provisions across 1 enactments
Geetanjali Mahapatra
AO, ICICI Bank & Ors.
Anil Kumar Srivastava
As recorded by the court registry
10 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
