Dismissed

Ms Shahanaaz Ismail Shaikh v. Bank of Baroda

DRAT7 Aug 2024IA/109/2024

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal dismissed an application to condone a 296-day delay in filing an appeal challenging the dismissal of a Securitisation Application under the SARFAESI Act. The Court held that the appellant's reasons regarding eviction and inability to find a lawyer were fanciful and insufficient, noting her prior litigation history.

What did the court decide?

Application for condonation of delay and the subsequent appeal were dismissed.

Ms Shahanaaz Ismail Shaikh versus Bank of Baroda — Banking and Recovery | DRAT (2024)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson

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I.A. No. 109/2024(CoD) In

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Appeal on Diary No. 34/2024

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Between

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Shahanaaz Ismail Shaikh … Appellant/s

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V/s.

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Bank of Baroda & Ors.

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…Respondent/s

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Ms Adeeba Khan, Advocate for Appellant. Mr R. Rathod along with Mr Chandresh Rao, Advocate for Respondent No. 1 Bank.

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The appellant who claims to be a tenant in the subject property, a residential flat on the third floor of Waghbakriwala Building, Pitha Street, Fort, Mumbai-400001, seeks to condone a delay of 296 days in filing the appeal challenging the order dated 13.02.2023 dismissing the Securitisation Application (S.A.) No. 24 of 2023 on the files of the Debts Recovery Tribunal-I, Mumbai (D.R.T), challenging the measures initiated by the first respondent Bank of Baroda under the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (“SARFAESI Act”, for short).

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The facts in brief are thus:

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The subject flat was allegedly leased out to the late Shaikh Ismail, the father of the appellant, in the year 1950. Consequent to his demise on 05.06.2010, the tenancy right devolved upon his legal heirs including applicant Nos. 2 & 3 in the S.A. They continued to pay rent to

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respondent No. 2, the landlord namely Abdul Latheef Manikoth. The landlord had mortgaged his building to the Bank of Baroda and defaulted on repayment resulting in the bank initiating proceedings against him and the mortgaged properties including the subject property. Thereafter, symbolic possession of the mortgaged properties was taken by the bank and an order was obtained under Sec. 14 of the SARFAESI Act from the CMM Court on 05.11.2020. The appellant contends that on 16.01.2021 she came to know about the Sarfaesi measures initiated by the bank against the subject properties. On coming to know about the measures, the appellant, her mother and along with respondent No.3 who is also a tenant of a shop room on the ground floor of the building, filed a S.A. No. 24 of 2021 challenging the Sarfaesi measures. Interlocutory Application (I.A.) No. 95 of 2021 which was filed before D.R.T. for interim protection was dismissed and the appellant had earlier filed Misc. Appeal No. 99 of 2022 before this Tribunal. The said appeal was disposed of with a direction to the D.R.T to expedite disposal of the S.A. Consequently, the S.A. filed by the appellant together with S.A. Nos. 94 and 95 of 2022 filed by other tenants in the building were dismissed by the impugned common order dated 13.02.2023. The subject property was vacated on 05.09.2023 with police assistance. The appellant’s mother expired and she filed this appeal with a delay of 296 days. 3. The appellant seeks to condone the delay. It is submitted that the appellant is an unmarried woman who is the only daughter of her parents. Her brother and his wife reside separately. She has no financial resources and on being evicted from the subject flat, she was

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compelled to shift her residence to Pune. It is alleged that the second respondent had forged documents to indicate the termination of tenancy with the appellant’s father. Since the appellant had no one to support her, she found it difficult to find a lawyer to file this appeal which resulted in delay. She was dejected and had lost hope in the judiciary. She prays that the delay may be condoned and appeal may be taken on record.

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Per contra, the bank filed a reply to the application for condoning delay by stating that the appellant had earlier filed an appeal challenging the order of the D.R.T. dismissing the interlocutory relief sought by her. That appeal was disposed of without going into the merits of the case with a direction to the D.R.T. to dispose of the S.A. expeditiously. The appellant’s averment that she did not know about the filing of the appeal and that she could not engage a lawyer is no reason to condone the huge delay of 296 days.

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Heard the Ld. Counsel appearing for the appellant Ms Adeeba Khan and Mr R. Rathod, the Ld. Counsel appearing for the respondent bank. Records perused.

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The appellant’s case is that she had shifted her residence to Pune after being evicted from the subject premises and that she was unable to contact a lawyer to file the appeal. The impugned common order is dated 13.02.2023, and the subject property was vacated on 05.09.2023 with police assistance. The appellant has experience in filing the earlier appeal challenging the interlocutory order. For seven months, she did not do anything to file the appeal. She was evicted from the premises only on 05/09/2023 and therefore had sufficient time to file the

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appeal before shifting to Pune. The explanation given by the appellant that she was ignorant about the action to be taken as a consequence of the dismissal of the S.A. does not appear to be very convincing. Indeed, each day’s delay need not be explained by the appellant. The Hon’ble Supreme Court has in Collector Land Acquisition Anantnag & Anr vs. Katiji & Ors (1987) 2 Supreme Court Cases 107 held that “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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It is not the length of delay that is material while condoning the delay but it is the explanation given by the appellant to condone the delay, which is material. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on the bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of the balance of justice in respect of both parties and the said

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principle cannot be given a total go-by in the name of liberal approach. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Sec. 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights based on the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost (See Katari Suryanarayana vs. Koppisetti Subba Rao (1975) 2 SCC 840 and B. Madhuri Goud v. B. Damodar Reddy (2012) 12 SSC 693 ). It has been held by the Hon'ble Supreme Court that the purpose of the Limitation Act is not to destroy the rights of the parties but to ensure that they approach the Court for vindication of their right without unreasonable delay.

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The facts in this case indicate that the appellant has not given any sufficient reason for the delay in filing the appeal. Fanciful reasons put forth by the appellant for condoning the delay are not acceptable. She stated that she could not find a suitable lawyer for filing the appeal. It is pertinent to note that the appellant had engaged a lawyer and filed the earlier Misc. Appeal before this Tribunal. The law assists only those who are vigilant about their rights and not those who sleep over them says the Latin maxim Vigilantibus Non-Dormientibus Jura Subveniunt .

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Hence, I find that the application for condonation for delay cannot be entertained and is, therefore, dismissed. Consequently, the appeal also stands dismissed.

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Sd/Chairperson

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mks-02

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Ms Shahanaaz Ismail Shaikh v. Bank of Baroda

Case brief

What is this about?

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Ms Shahanaaz Ismail Shaikh v. Bank of Baroda

Case brief

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