This Tribunal allowed the appeal recommending reopening of the maintenance application and the tenant's application to dispose of both on merits.
The appeal was allowed, the impugned order was set aside, and the learned Presiding Officer was directed to reopen the Maintenance Appeal, take up TSA 23/2023, allow the counter, and dispose of TSA 23
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT CHENNAI
Dated the 5th of November, 2024
PRESENT: Hon’ble Mr. Justice G. Chandrasekharan CHAIRPERSON
MA (SA): 10/2024
(MA NDN 3430/2023 in TSA 23/2023 on the file of DRT- II, Chennai)
BETWEEN
The Authorised Officer, M/s. LIC Housing Finance Ltd., Tristar Towers, 2nd Floor, 657 Avinash Road, Coimbatore – 641 037.
…… Appellant
Chennai – 600 029.
Also having address at No. C001, Raheja Shelter, 1073, Avinashi Road, Coimbatore, Tamilnadu – 641 018.
Residing at 2/38, Railway Colony, 3rd Street, Aminjikarai, Chennai – 600 029.
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Also having address at No. C001, Raheja Shelter, 1073, Avinashi Road, Coimbatore, Tamilnadu – 641 018.
…..Respondents
Counsel for Appellant : M/s. Ramalingam & Associates Counsel for Respondents : Mr. N. Nandakumar
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ORDER
1. This Appeal is filed challenging the Order dated 19.02.2024 passed b y DRT-II, Chennai, in MA NDN 3430/2023.
that TSA 23/2023 was filed by Respondents herein challenging the Possession Notice issued under Section 13(4) of the SARFAESI Act, 2002, by Appellant herein. Said TSA 23/2023 came to be disposed of, on 28.07.2023 for the reason that no Counter was filed by Appellant Institution herein, and the contentions made in the Application were not rebutted by filing Counter. Thereafter, the Appellant Institution filed an Application in MA NDN 3430/2023 to condone the delay of 36 days in reopening the matter. However, this Application was dismissed stating that TSA
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23/2023 cannot be reopened for the reason that it was disposed of on merits.
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Learned Counsel for Respondents that it is the duty of Appellant Institution and its Counsel appearing for it, for filing Counter within the time stipulated by Learned Presiding Officer. Having not filed despite sufficient opportunity being provided, it is not now open to Appellant Institution here to challenge the Order passed by Learned Presiding Officer on merits. In support of his submissions, Learned Counsel for Respondents submitted the Order of Hon’ble High Court of Delhi passed in IA 8151/1999 in Suit No. 640/1985 decided on 14.05.2001 in the case of New
Bank of India Vs. Marvels ( India) .
“Counsel for applicant bank present. IA Sr. No. 3430/2023 is an application filed by the applicant to
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condone the delay of 36 days in reopen the matter which is disposed of by the final order dated 28.07.2023. It is seen that by virtue of the above the SA is disposed of on merits. These cannot be any reopen of the matter disposed on merits. Hence, there is no question of condonation of delay, hence objection raised by the respondent is upheld. Petition is not maintainable.”
This Order indicates that MA NDN 3430/2023 was primarily dismissed for the reasons that T SA 23/2023 was disposed of on merits.
“5. The respondent entered appearance before DRT-I where the matter was originally filed and sought time for filing counter. There after the matter stood transferred to this Tribunal where is also the
respondent sought time for filing counter. There after the respondent failed to appear and file counter resulting the closure of chance for filing counter and hearing the applicant alone.
6. The contention of the applicant as to the illegality in NPA classification is not rebutted by filing any counter. The applicant contends that the NPA classification is done when the prohibitory order of the Apex Court was in force. This contention remains unrebutted leading this Tribunal to accept the same. The only consequential finding that can follow in accepting the contention of the applicant is that the NPA classification as done by the applicant is illegal. Hence it is also to be held that the entire proceedings leading to the impugned possession notice is illegal and liable to be set aside.
7. …”
A reading of these passages shows that despite sufficient opportunity provided, Counter was not filed by Appellant Institution. Therefore, the opportunity for filing Counter was closed and Respondents herein alone was heard.
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8. There was no indication in the Order i n TSA 23/2023
that the Appellant Institution herein was also heard when the matter was disposed of on 28.07.2023. The Application in TSA 23/2023 was primarily allowed on the ground that the contention raised in the Application as to the legality of classification of the account as NPA, was not rebutted by the Appellant Institution herein by filing Counter. As the contentions raised by Respondents herein i n TSA 23/2023 were not rebutted, Tribunal below accepted the same, and allowed the Application.
9. Obviously, Learned Presiding Officer should have referred to some documents besides the contentions of Respondents herein, to reach the conclusion. However, no documents seem to have been referred for arriving at such conclusion. Therefore, at no stretch of imagination, it can be considered that the order was passed, on merits.
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10. At the same time, this Tribunal has looked into the aspect of non filing of Counter by Appellant Institution herein, despite providing sufficient opportunity, and it surely reflects the recalcitrant attitude towards Appellant Institution’s Counsel, in not filing the Counter in the matter, in time. It is expected that the Appellant Institution and its Advocates should act with due diligence in following the matter.
11. Since the Order has been passed mainly for the reason that the Respondents’ contentions were not rebutted, considering the fact that, no reference had been made by Learned Presiding Officer with regard to the contentions raised by the Respondents herein by referring to documents, this Tribunal is of the view that Order was not passed on merits, and therefore, an opportunity has to be given to the Appellant Institution to file Counter, for the matter to be decided on merits.
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12. In view of above discussions and observations, this Tribunal passes the following orders:
i) This Appeal is allowed by setting aside the impugned Order passed in MA NDN 3430/2023 in TSA 23/2023 by DRT II, Chennai.
ii) Learned Presiding Officer is directed to take up
reopen Petition MA NDN 3431/2023 on file, and dispose of the same, and then, give opportunity for filing Counter in TSA No.23/2023, and then, dispose of the TSA 23/2023, on merits and in accordance with law, as expeditiously as possible.
13. In the result , the Appeal in MA (SA): 10/2024 is allowed. Both parties shall bear their own costs. All pending IAs, if any, stand closed.
[Dictated to Athistamani, PS, in open court, transcribed by her, corrected and signed by me this 5th of November, 2024]
[ Justice G. Chandrasekharan] CHAIRPERSON
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2 issues framed by the court
Whether an application seeking reopening of proceedings disposed of without a counter affidavit by the applicant was dismissed on merits given no documents were referred.
Whether the lower tribunal passed an order on merits when neither the applicant filed a counter nor the tribunal referred to documents supporting the respondent's contentions.
1 provisions across 1 enactments
The Authorised Officer, M/s. LIC Housing Finance Ltd.
Ms. Ranjani Subramanian
Mr. Muthaiah Subramanian
G. Chandrasekharan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
