Dismissed

Mrs G K Rani v. State Bank of India

DRT21 Nov 2023SA/134/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed an interlocutory application seeking condonation of delay in filing a securitisation application. It held that the Tribunal lacks the power to condone delay under Section 17(1) of the SARFAESI Act and noted the petitioner's inconsistent pleas regarding fraud and delay.

What did the court decide?

The Miscellaneous Application No. 624 of 2022 and Securitisation Application No. 134 of 2022 are dismissed. The respondent is permitted to proceed with further proceedings.

Mrs G K Rani versus State Bank of India — Company and Corporate | DRT (2023)

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IN THE DEBTS RECOVERY TRIBL]NAL - 1, KARNATAKA AT BENGALURU

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PRESENT: SRI IMTI AZ ALT

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PRESIDING OFFICER

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Dated the 21't day of November,2O23

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INTERLOCUTORY APPLICATION No. 624 of 2022

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SECURITISATION APPLICATION No.134 OB 2022

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Between

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l. G.K Rani, Wo K Anand, No.KV392,6thCross, Kuvempunagar Extension, Mandya, Karnataka - 571401.

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K Anand, S/olateKBKempegowda, No.KY3g2,6thCross, Kuvempunagar Extension, Mandya, Karnataka - 571401. . . . ..Petitioners/Applicants

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And

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The authorised officer, State Bank of India, ' Mysore Bank Building, BKG Complex, A Block, 2nd Floor, Avenue Road, Bangalore,

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Kamataka - 560009. ..... Respondent/Defendant

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This Interlocutory Application having been heard on22.06.2023 in the presence

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of Advocates M/s A S Nanjundappa, Soumya C N, Ashadevi K V and Vidhya S for the

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petitioners/applicants, and Advocate Shri Altaf Hassan for the respondent/defendant, and

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stood over to this day for consideration, the Tribunal delivered the following:-

ORDER

This petition has been filed on 18.03.2022 under 5.22 ofthe Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) - for short 'the RDB Act' - r/w R. I 8 of the Debts Recovery Tribunal (Procedure) Rules, 1993 (as amended from time

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1ANo.62412022 in SA No.l3412022

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to iime) praying to condone the delay of 31^days in^{filing SecuritisationApplication} (SA) with No.134/2022 under S.l7(l) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ac!2002^{(as amended from time} to time) - for short' the Act'. The^{petitionersare noneother than the applicants in the SA.} 2. The case set out by the petitioners/applicants through^{the notaryattested} affidavit of the 2nd^{petitionerl2"d applicant accompanyingthe IA in brief is as follows:-} The respondent/defendant fraudulently to^{deprive limitation has not informed the} applicants about the obtaining of the^{order dated 2l .122021 and suppressedthe material} information before the applicants which amounts to^{fraud. The applicantscould be aware} of such order only when they^received a^{notice dated 05.03.2022 from the Advocate} Commissioner directing to vacate the^{scheduleimmovableproperty. In the above} circumstances, the application^{has been} fiIed^{within one monthfrom the date of} knowledge and hence there is no delay.^{Wherefore the applicantspray for condonationof} the delay of 31 days in filing the application.

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Though the respondent/defendant f,rled a detailed statement of^objection contending the averments in SA 13412002,^{no statement regarding the avermentsin IA} 62412022 has been filed by it.^{However, at the time of hearing, Ld counsel for the} respondent/defendant resisted the^prayer sought^for.

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The only point arises for consideration is^as to^{whetherthe petitioners/} applicants are entitled to the^{reliefprayed for?}

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The Point:- Aggrieved by the order dated^{27.12.2021passed by the Chief} Judicial Magistrate, Mandya in Crl^{Misc No.77812021, the petitioners/applicantson} 14.03.2022 filed an application^{under S.17(1)of the Act before this Tribunal praying to} set, aside the aforesaid order^{dated27.12.2021. The applicants are none other than the} borrowers of financial assistances^{in the form of housingloan facilityandmortgage loan}

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lANo.624D022 in SA No.13412022

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aggregating to the sum of t30 lakhs availed in the year 2009 from the respondent/ defendant.

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In paragraph 4 of the aforesaid SA, the petitioners/applicants have declared that the application was filed within the stipulated period. It is submitted therein that the respondent/defendant fraudulently to deprive limitation has not informed about obtaining of the orders on 27.12.2021 and suppressed the material information from the applicants. After expiry of limitation of 45 days the respondent/defendant through its Advocate Commissioner, Mr Devegowda has vide legal notice dated 05.03.2022 informed the appellants to vacate the schedule property, but whereas, not furnished the copy of the orders along with the legal notice. Hence, the petitioners/applicants came to know about the obtaining of the order only on 05.03.2022 and the application is filed within one month therefrom and hence there is no delay from the date of knowledge. However, in the scrutiny sheet (as per clause 12 therein) the Registry has noted that the application is not filed within the period of limitation as prescribed under the Act and hence an IA has to be filed. Thereafter, lA 62412022 was filed by the petitioners/ applicants on 18.03.2022.But soon thereafter, overlooking the delay noted, the Registry in a casual manner on 18.03.2022 ordered to register the SA and the matter was placed before this Tribunal on 18.03.2022. The defect of delay is not cured automatically merely by filing an IA to condone the delay whereas the Registry is not empowered to take a decision therein. The Registry ought to have placed IA 62412022 before this Tribunal and on getting an order therein only should have been proceeded to register the SA. The Registry of the Tribunal is required to be maximum vigilant and diligent and shall take note of the same for future guidance.

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In fact, the SA was presented on 14.03.2022 challenging the order dated 27.,12.2021 passed by the Chief Judicial Magistrate, Mandya in Crl Misc No.77812021.

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the limitation period stipulated under 5.17(1) of the Act, an application ought to :"r_".-

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,.\

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1ANo.62412022 in SA No. 134/2022

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have been presented on or before^{10.02.2022but happenedto be presentedon 14.03.2022} with a delay of 32 days in filing the^same.

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' 8. According to the^{petitioners/applicants,} the^{respondent/defendant} fraudulently to deprive limitation^{has not informed them about the obtainingof the order} dated27.l2.202l and suppressed^{the material informationbeforethem which amounts to} fraud and they could be aware of^{such orderonly when they receiveda noticedated} 05.03.2022 from the^{AdvocateCommissionerdirecting themto vacate the schedule} immovable property. The^{provisionsunder the Act or the Rules made thereunder do not} contemplate a notice to^{the borrowersin an application filed underS.14of the Act before} the Chief Judicial Magistrate^{or District Magistrateor the Chief MetropolitanMagistrate.} Therefore, the petitioners/applicants^{cannotclaim it as their legitimate statutory right to} receive a notice thereunder.^{Admittedly,theyreceivedan Advocate Commission notice} dated 05.03 .2022.^{But whatchallengedis the order dated 27.12.2021 pursuantto which} such Commission^was appointed.^{The documents producedby the respondent/defendant} in the proceedings show that^{the petitioners/applicants were served with a demandnotice} under S.13(2) of the Act on^{31.07.2014.It furtherrevealsthat the petitioners/applicants} have personally received a^{copy of possessionnotice dated 25.01.2016 issued under} S.l3(4) of the Act in^{respectof the scheduleimmovableproperty as could be inferred} from the endorsements^{madeby themat the bottom of the saidnotice. Thesame was also} published in English in the Hindu and in^{Kannadain the Kannada Prabha dailiesdated} 31.01 .2016. In the above^{circumstances, the versionof the petitioners/applicants that they} could be aware of the^{proceedingsinitiatedby the respondent/defendant only on} 05.03.2022 when they^{receiveda noticefromthe Advocate Commission requesting them} to vacate the premises cannot^{be believed.Hadthey beenvigilant enoughthey could} have been aware of the^{proceedings before the Chief Judicial Magistrate Court. A person} who seeks remedy as a statutory^{rightunder a specialAct should be more vigilant. It is}

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,.\

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lA No.624D022 in SA No. 134/2022

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only due to their evasive and lackadaisical attitude that they could not seek their remedy before this Tribunal at the right time. Thus, the grounds urged by the petitioners/ applicants in the application to condone the delay look very abnormal and ambiguous. No valid case put forward by the petitioners/applicants before this Tribunal to entertain the prayer of condonation of delay.

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According to the petitioners/applicants, the application has been filed within forty five days from the date of knowledge and hence there is no delay in filing the same. But the time limit given under S.l7(1) of the Act is forty five days from the date on which such measure had been taken. The language of the provision is very clear. In view of the time limit expressly provided in clear language, the question of date of knowledge does not arise therein. The right to sue accrues within forty five days from the date on which measure had been taken only. It is essential for a party to have knowledge of the action to take a remedial measure within the time limit prescribed under the statute. The Act is a special law enacted for enforcement of security interest over the secured assets for recovery of secured debts from the secured debtors without the assistance of Tribunal or Court. No leniency in the form of condonation of delay is shown thereunder for an aggrieved person. Therefore, the argument of date of knowledge advanced by the petitioners/applicants is rejected.

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Also, in one breath the petitioners/applicants are claiming that there is no , delay in filing the SA. However, at the same breath they are submitting that this petition has been filed to condone the delay of31 days as it is only on account ofthe fraudulent suppression of the material facts by the respondent/defendant. It means that the petitioners/applicants are not consistent in their pleadings. No party to a suit or a proceeding will be allowed to raise inconsistent pleas. It is the fundamental rule of pleading that a party cannot approbate and reprobate by taking inconsistent pleas. Taking inconsistent pleas by the petitioners/applicants make their conduct far from satisfactory *"":

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.-\ 1ANo.62412022 in SA No.ll4l2022

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before this Tribunal. As stated above, no case has been made out in the pleadings to grant the relief and thus the relief prayed for has become inconsistent with the pleadings.

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I l. Also, though the provision of law quoted in the application is not correct, the IA, in fact, was filed under S.5 of the Limitation Act, 1963. It may be noted that by virtue of S.24 of the RDB Act the provisions of the Limitation Act, 1963 are, as far as may be, made applicable to an application made to a Tribunal. The word 'application' as per S.2(b) of the RDB Act takes in an application made to a Tribunal under S.19 of the RDB Act only. Therefore, it may be noted that the provisions of the Limitation Act, 1963 are not applicable to an application filed under S.l7(1) of the Act. Moreover, vide order dated 12.07.2023 in Miscellaneous Application IR No.l0lll20l9 in Securitisation Application IR No.3708/2018 this Tribunal categorically held that the Debts Recovery Tribunal has no power to condone the delay in filing application under S.17 (l) of the Act, which has become absolute and final. Therefore, looking at any angle, the delay cannot be condoned by this Tribunal.

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In the above facts and circumstances of the case and in view of the discussion as above, the delay of 32 days in presentingSA 13412022 cannot be condoned and thus the SA cannot be entertained by this Tribunal. IA 62412022 is liable to^be dismissed. Suffice it to say that SA 13412022 fails and thus is liable to be dismissed.

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In the result, IA 62412022 and SA 134/2022 are dismissed. IA Nos. 57112022, 57312022 and 324012022 are closed. The respondent/defendant^{is permitted to} proceed with further proceedings pursuant to the order dated 27.12.2021 passed by the Chief Judicial Magistrate, Mandya in Crl Misc No.77812021.^No costs.

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[Dictated^{to my PA, transcribed by him, correctedand pronounced by ntein lhe openTribunalon t\s the 2]o day of} November,2123J \

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I^{rMtrAZ ALr} ] PRESIDING OFFICER

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IN THE DEBTS RECOVERY TRIBLINAL . 1, KARNATAKA AT BANGALORE

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PRESENT: SRI IMTI AZ ALI PRESIDING OFFICER

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Dated the 2lstday of November,2023

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INTERLOCUTORY APPLICATION No. 624 of 2022

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SECURITISATION APPLICATION No.t34 OF 2022

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Between

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G.K Rani, W/o K Anand, No.KY392,6thCross, Kuvempunagar Extension, Mandya, Karnataka - 571401 and another.

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. . . .. Petitioners/Applicants

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And

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The authorised officer, State Bank of India, Mysore Bank Building, BKG Complex, A Block, 2nd Floor, Avenue Road, Bangalore, Karnataka-560009. ..... Respondent/Defendant

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Mrs G K Rani v. State Bank of India

Case brief

What is this about?

What did the court decide?

Mrs G K Rani v. State Bank of India

Case brief

What is this about?

What did the court decide?

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