Allowed

Hdfc Bank v. M/s. Vaibhav Construction

DRAT4 Oct 2023REGULAR APPEAL/135/2023

Case brief

AI extract

What is this about?

The bench allowed an interim application for condonation of delay in filing an appeal. The court held that the period spent contesting a review application, followed by obtaining a legal opinion, constituted sufficient cause under Section 5 of the Limitation Act, relying on Supreme Court precedents on substantial justice.

What did the court decide?

Application for condonation of delay I.A. No. 530 of 2019 allowed; appeal regularized; examination of opposing parties listed.

Hdfc Bank versus M/s. Vaibhav Construction — Insolvency and Bankruptcy | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appl. Dy No. 414 of 2019

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THE HON’BLE JUSTICE SHRI ANIL KUMAR SRIVASTAVA, CHAIRPERSON

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04.10.2023

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HDFC Bank

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M/s. Vaibhav Construction & Ors.

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….. Respondent

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For Appellant : Mr. Nimesh Mishra, ld. Senior advocate. Ms. Sanjana Nandy, ld. Advocate.

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For Respondents : Mr. Nemani Srinivas, ld. Senior Advocate.

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THE APPELLATE TRIBUNAL :

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Heard learned counsel for the parties and perused the records.

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Instant appeal preferred against judgement and order dated 12.10.2018 passed by the learned DRT-2 Hyderabad dismissing the O.A. filed by HDFC bank and subsequent order dated 31.07.2019 dismissing the review application No. 08 of 2018. Thereafter appeal was preferred on 15.09.2019. I.A. 530 of 2019 is filed by the appellant u/s 5 of the Limitation Act for condonation of delay in preferring the appeal.

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Learned counsel for the appellant submits that appellant was pursuing the case before the competent Court under the impression that appropriate remedy would be made, but when the review application was dismissed, then legal opinion was

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sought as stated in the supplementary affidavit filed on 18.04.2023. Thereafter, appeal was filed.

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Learned counsel for the respondent submits that appellant cannot take advantage of the period spent in pursuing review application. Further, no sufficient cause was shown by the appellant.

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As far as period spent in pursuing the review application is concerned, no doubt, that period cannot be excluded in terms of Section 14 of the Limitation Act, but at the same time it is apparent from the record that appellant was contesting the review application, but the same was dismissed on 31.07.2019. Thereafter, appellant preferred the appeal after obtaining legal opinion which was duly explained in the supplementary affidavit. Learned counsel for the appellant placed reliance upon the case of Raheem Shah & Anr. Vs. Govind Singh & Ors. [2023 SCC OnLine SC 910] wherein Hon’ble Apex Court at Paragraph 05 has

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held as under :

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This Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 has held as hereunder:

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“The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial 2 justice to parties by disposing of matters on merits’. The expression sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

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Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when

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delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

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“Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay ? The doctrine must be applied in a rational common sense pragmatic manner.

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When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

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There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.”

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Considering the submissions made by the parties and law laid down by the Hon’ble Apex Court, I am of the view that sufficient cause has been successfully explained by the appellant for condoning the delay.

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Accordingly, application for condonation of delay being I.A. No. 530 of 2019 filed u/s 5 of the Limitation Act is allowed. Delay in preferring the appeal is condoned. Let the appeal be regularized by providing regular appeal number.

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Opposition be filed within four weeks with copy to the appellant who may file rejoinder within two weeks thereafter.

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List on 17.01.2024 for hearing of appeal.

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(Anil Kumar Srivastava, J) Chairperson

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Dated : 04.10.2023 01 /pkb

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Hdfc Bank v. M/s. Vaibhav Construction

Case brief

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Hdfc Bank v. M/s. Vaibhav Construction

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