Partly allowed

Rajendra Kumar Agrawal v. Dewan Housing Finance Corporation Ltd.

DRT18 Feb 2023MA/273/2022

Case brief

AI extract

What is this about?

This DRT allowed an application for condonation of delay in filing a Miscellaneous Application, citing a High Court interim order restraining the respondent from coercive action. The court also allowed the restoration of the dismissed Summary Application for hearing at an appropriate stage.

What did the court decide?

Application under E/s.5 of Limitation Act allowed; Summary Application restored and listed for hearing.

Rajendra Kumar Agrawal versus Dewan Housing Finance… — Banking and Recovery | DRT (2023)

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MA/273/2022

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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MISCELLANEOUS APPLICATION No.- 273/2022

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(in SA/178/2018)

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RAJENDRA KUMAR AGARWAL

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S/o Late Shri Ishwardas, Plot No. 8, Tulsi Niwas, Agarasen Bhawan Road, Rupawasd House, Pali, Rajasthan

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………Applicant

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Versus

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PIRAMAL CAPITAL AND HOUSING FINANCE LIMITED ,

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Having its Branch Office at 302, 5, Jaipur Tower, 3^rd Floor Opp. AIR, MI Road, Jaipur, Rajasthan

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---- Respondent

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Counsel –

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Sh. Bhrigu Sharma , Ld. Counsel for the Applicant

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Sh. Abhishek Bhandari, Ld. counsel for Respondent FI

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(Final Order)

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(18.02.2023)

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This Miscellaneous Application, was filed by the Applicant on 17.12.2022 with a prayer to set aside the order dt. 21.06.2019 through which, the SA filed by the SA Applicant was disposed of as dismissed, in default.

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The main ground taken by the SA Applicant, in this MA, is that a Writ Petition was filed by Mr. Ram Kishore Gupta, one of the borrowers before the Hon’ble High Court, at Jaipur, where an interim order was passed on 12.10.2018 directing to Respondent Bank to not to take any coercive action.

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This order remained continue and finally, the Writ Petition was disposed of as dismissed as withdrawn with liberty, as prayed for. On

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MA/273/2022

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07.02.2023, Hon’ble High Court passed the said Order and the interim order was allowed to continue vide Order dt. 23.01.2023. Mr. Ram Kishore Gupta, one of the borrowers, who filed the Writ Petition before Hon’ble High Court, expired during the pendency of the writ petition on 23.09.2020 and the Applicant was under the impression that as Order of interim relief is continue so there must be no proceedings in the SA and in any other case, the Respondent FI will inform about the fact of interim order passed by the Hon’ble High court, before this Tribunal also. Finally, the Ld. counsel for SA Applicant, prayed for an order of restoration of this SA.

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Ld. counsel for SA Applicant also prayed that an Application U/s 5 of the Limitation Act is also required to be allowed, as the delay in filing of the MA, is not intentional and mainly relying on the interim order passed by the Hon’ble High Court, which was passed in the Writ Petition, filed by the other borrowers.

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Reply to the SA, as well as Application U/s 5 of the Limitation Act was filed and Ld. counsel for Respondent FI objected the prayer for condonation of delay, mainly on the ground that the Applicant failed to explain the delay in filing of this MA and he further submitted that the Writ Petition filed by the MA Applicant Rajedndra Kumar Agarwal as SBCWP No. 13188/2018 was disposed of as dismissed vide Order dt. 4.9.2018 passed by the Hon’ble High Court, so Ld. counsel argued that the Applicant cannot claim any relief in the present matter because the SA is now being filed by the Applicant, who was not party to the Writ Petition filed by Rajedra Kumar Agarwal.

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Heard arguments and perused the record.

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With regard to issue of delay in filing of the SA, it is clear that the SA Applicant Mr. Rajendra Kumar Agarwal, Mr. Ram Kishore Gupta, Mrs. Puspa Devi,

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MA/273/2022

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Mr. Surendra Kumar, Mrs. Shobha Devi and Mrs. Manju Devi, were the parties to the Writ Petition and the said Writ Petition was disposed of as dismissed by Hon’ble High Court on 04.09.2018. 8. It is again also a fact that Mr. Ram Kishore Gupta filed SBCWP No. 14340/2018 before Hon’ble High Court and vide Order dt. 12.10.2018 the Respondent were directed to not to take any coercive action till the next date, on 09.03.2021, the interim order was allowed to continue till the next date and later on as discussed above, the said Writ Petition was disposed of through Order dt. 07.02.2023.

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The subject matter as challenged in the Writ Petition filed by the Applicant Mr. Rajendra Kumar Agarwal and Mr. Ram Kishore Gupta, as both the Writ Petitions were filed by the borrowers before the Hon’ble High Court being aggrieved by the same action taken by the Respondent FI.

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If, the Hon’ble High Court has granted an interim relief, in favour of the present Applicant, the Bank was having right to challenge this issue before, the Hon’ble High Court but they failed to do so, in my considered opinion, the interim order, remained in continuance till 07.02.2023 when the Writ Petition was disposed of with liberty and liberty was granted by the Ho’ble High Court with the directions “to avail appropriate remedy at

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appropriate stage”

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Accordingly, in my considered opinion the issue of delay is not required to be entertained because the actions initiated by the Respondent FI, were not challenged and interim order was continue, in favour of SA Applicant, therefore, in my view delay in filing of MA is required to be allowed and accordingly, the Application, U/s 5 of the Limitation Act, stands disposed of as allowed .

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Further, with regard to prayer of restoration of this SA, In my consider, opinion, the fact as discussed

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MA/273/2022

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above, are sufficient to hold that the Respondent FI was restrained from taking any coercive action till 07.02.2023 and so considering the principal of natural justice, the SA is now required to be heard and decide, because the MA Applicant is having liberty to approach this Tribunal at an appropriate stage, the stage has come and therefore, prayer of restoration of SA, is allowed.

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With these observation, this MA, stands disposed of as allowed. Registry, is directed to restore the SA No. 178/2018 to its original number and list the matter before this Tribunal on 22.02.2023.

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Copy of the order be given free to the parties concerned. File be placed before the Registrar for compliance. After compliance file be tagged with its SA file.

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(Vivek Saxena) Presiding Officer DRT, Jaipur

Rajendra Kumar Agrawal v. Dewan Housing Finance Corporation Ltd.

Case brief

What is this about?

What did the court decide?

Rajendra Kumar Agrawal v. Dewan Housing Finance Corporation Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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