Dismissed

State Bank of India v. Ayush Hospital

DRAT9 Feb 2024REGULAR APPEAL/101/2019

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal dismissed the appeal filed by State Bank of India against the DRT's order recalling an ex-parte decree due to non-communication from counsel. Quoting Supreme Court precedents on condoning delay, the court held that sufficiency of cause is decisive over delay length. The dismissal of the recall application was confirmed.

What did the court decide?

Impugned order recalling the ex-parte order dated 23.10.2018 was confirmed; the DRT is directed to dispose of the original OA within six months.

State Bank of India versus Ayush Hospital — Execution and Attachment | DRAT (2024)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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(Appeal No. 101 of 2019)

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(Arising out of O.A. No.160 of 2015 in DRT Cuttack)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

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CHAIRPERSON

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State Bank of India State Bank Bhavan, Madame Cama Road, Nariman Point, Mumbai -400021

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SAM Branch, A/34 OSCARD Bank Building, 4^th Floor, Pt. J.N. Marg Bhubaneswar 7510001 (Odisha)

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…Appellants

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-Versus-

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Ayush Hospital and Trauma Care Private Limited represented by its Director Ashok Aacharya at Plot No. 13-14, Bhoi Nagar, Acharya Vihar, Bhubaneswar -751022, District-Khurda

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Dr. Ashok Acharya son of Harihar Acharya residing at Plot No. 4/311, IRC Village N. Ayapalli, Bhubaneswar -751014

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Sri Durga Prasad Mishra, son of Late Goadabarish Misra at Plot No. DL/343, Manorama Estate, Rasulgarh, Bhubaneswar 751010, Director of M/s. Ayush Hospitals & Trauma Care Pvt. Ltd. & Chairman of Micro Hospitals Pvt. Ltd.

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Micro Hospitals Pvt. Ltd. Registered office at Plot No. 68(P) 2^nd Floor, NH-5, Rasulgarh, Bhubaneswar, District-Khurda, Orissa 751010.

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… Respondents Counsel for the parties Mr. Debasish Chakraborty, Learned Counsel, Ms. Sarmistha Pal, Learned Counsel for the Appellant Mr. Nemani Srinivas, Learned Counsel for the Respondent.

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JUDGMENT : On 9^th February, 2024

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THE APPELLATE TRIBUNAL :

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Heard the Learned Counsel for the parties and perused the record.

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2. Instant Appeal has arisen against an order dated 18^th September, 2019 passed by Learned DRT Cuttack in MA No. 1428 of 2019 arising out of O.A. No. 160 of 2015.

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3. O.A. No. 160 of 2015 was filed by the Appellant Bank against the Respondent No. 1 to 4 which was decreed exparte on 23.10.2018. On 27.05.2019 an application for setting aside the exparte order and for recall of the order dated 23.10.2018 was filed along with an application for condonation of delay which was allowed by the impugned order dated 18.09.2019.

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4. Learned Counsel for the Appellant would submit that no ground is shown in the application for recall. There is no satisfactory explanation for the delay in filing the application for recall. Learned DRT has erred in allowing the condonation of delay application and exparte judgment dated 23.10.2018 was recalled.

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5. An application for recall of the exparte order dated 23.10.2018 was filed by the Respondents mainly on the ground that due to non-communication from their Learned Counsel, they could not proceed with the matter and exparte judgment was passed. They came to know about the same when the sale notice was published in the newspaper.

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6. I have gone through the record. Specific ground is taken that the Learned Counsel for the Respondents has not informed the Respondents about the progress of the case.

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It has been held in the judgment passed by the Hon’ble Apex Court in the matter of Sheo Raj Singh (Deceased) Through Legal Representatives & Others -vs- Union of India & Another (2023) 10 SCC 531) wherein in paragraphs 35 and 36 Hon’ble Apex Court held that :

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“35. We find that the High Court in the present case assigned the following reasons in support of its order:

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35.1. The law of limitation was founded on public policy, and that some lapse on the part of a litigant, by itself, would not be sufficient to deny condonation of delay as the same could cause miscarriage of justice.

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35.2. The expression "sufficient cause" is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail.

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35.3. It is upon the courts to consider the sufficiency of cause shown for the delay, and the length of delay is not always decisive while exercising discretion in such matters if the delay is properly explained. Further, the merits of a claim were also to be considered when deciding such applications for condonation of delay.

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35.4. Further, a distinction should be drawn between inordinate unexplained delay and explained delay, where in the present case, the first respondent had sufficiently explained the delay on account of negligence on part of the government functionaries and the government counsel on record before the Reference Court.

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35.5. The officer responsible for the negligence would be liable to suffer and not public interest through the State. The High Court felt inclined to take a pragmatic view since the negligence therein did not border on callousness.

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36. Given these reasons, we do not consider discretion to have been exercised by the High Court in an arbitrary manner. The order under challenge had to be a clearly wrong order so as to be liable for interference, which it is not.”

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It was further held that “Condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of

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the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial.”

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Reliance is also placed in Rahim Shah & Another -vsGovind Singh & Others (2023 SCC OnLine SC 910) wherein Hon’ble Apex Court in the case of Collector, Land Acquisiton, Anantnag -vs- Mst. Katiji, [(1987) 2 SCC 107] held that :

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“5. This Court in the case of Collector, Land Acquisition,

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Anantnag -vs- Mst. Katiji, (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 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 sub-serves 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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1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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2. 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 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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3. "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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4. 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 non-deliberate delay.

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5. 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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6. 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

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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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7. A ground shown by the Respondents in the Application is sufficient to hold that they were not communicated about the progress of the matter by the Learned Counsel. Accordingly, learned DRT has rightly allowed the MA and recalled the order dated 23.10.2018.

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I do not find any merit in the Appeal. Accordingly, Appeal is liable to be dismissed.

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ORDER

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Appeal is dismissed. Impugned order dated 18.09.2019 passed by Learned DRT Cuttack in MA No. 1428 of 2019 arising out of O.A. No. 160 of 2015 is confirmed. Since the O.A. is pending since 2015, Learned DRT would make an endeavour to dispose of the O.A. within a period of six months from the date of copy of the judgment is received

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No Order as to costs.

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File be consigned to Record Room.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

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Order signed and pronounced by me in the open Court on this the 9^th day of February, 2024.

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