Dismissed

Sri C K Devegowda v. Mahila Co. Operative Bank Ltd.

DRT20 Nov 2023SA/301/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed an interlocutory application seeking condonation of a 46-day delay in filing a Securitisation Application. The court held that the Limitation Act does not apply to SARFAESI applications and cited prior precedent confirming the Tribunal lacks power to condone such delays.

What did the court decide?

The interlocutory application seeking condonation of delay was dismissed; the securitisation application was also dismissed; the respondent bank was permitted to proceed with further proceedings.

Sri C K Devegowda versus Mahila Co. Operative Bank Ltd. — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERY TRIBLINAL - 1, KARNATAKA AT BENGALURU

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PRESENT: SRI IMTI AZ ALI

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PRESIDING OFFICER

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Dated the 20th day of November,2023

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INTERLOCUTORY APPLICATION No 1330 of 2022

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SECURITISATION APPLICATION No.301 OF 2022

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Between

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C K Devegowda, S/o late Kariyappa, 365, 8th Cross, Near Rajeshwari Temple, Rajarajeshwari Nagar, Bengaluru, Karnataka - 560058. . . . ..Petitioner/Applicant

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And

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The Mahila Cooperative Bank Limited, No.13&14, South End Road, , Sheshadripuram, Bengaluru, Karnataka - 560020, represented by its

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authorised officer. .... Respondent/Defendant

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This Interlocutory Application having been heard on 17.04.2023 in the presence of Advocates M/s K Rama Bhat, Thribhuvan K and Ravi Bhat for the respondent/ defendant, and the petitioner/applicant being absent, and stood over to this day for consideration, the Tribunal delivered the following:-

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ORDER

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This petition has been filed on 13.05.2022 under S.5 of the Limitation Act, 1963 praying to condone the delay of 45 days in filing Securitisation Application (SA) with No.30l/2022 under S.l7(1) of the Securitisation and Reconstruction of Financial Assets ' \ V, and Enforcement of Security Interest Act, 2002 (as amended from time to time) - for 1 short' the Act'. The petitioner is none other than the applicant in the SA. I

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The case set out by the petitioner/applicant through his notary attested \ affidavit accompanying the IA in brief is as follows:- This petitioner came to know about \

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IA No.l330/2022 in SA No.30l/2022

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the impugned order when the bank officials came to the^premises of the schedule immovable property and when they told this petitioner that they would take physical possession of the same in the next week. Subsequently, this petitioner obtained the certified copy and hence there is a delay of 45 days in filing the SA and hence the IA.

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Though the respondent/defendant filed a detailed statement of objection contending the averments in SA 301/2002, no statement regarding the averments in IA 133012022 has been filed by it.

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The only point arises for consideration is as to whether the petitioner/ applicant is entitled to the relief^prayed for?

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The Point:- Aggrieved by the order dated 10.02.2022 passed by the 7th Additional Chief Metropolitan Magistrate, Bengaluru in Crl Misc No.394712021, the petitioner/applicant on 13.05.2022 filed an application under S.17(1) of the Act before this Tribunal praying to set aside the aforesaid order dated 10.02.2022. The applicant is none other than the borrower of a financial assistance in the form of term loan of 120 lakhs availed on 06.08.2013 from the respondent/defendant under IP loan account No.IPL-202 upon due execution of necessary loan security documents and creation of equitable mortgage over the schedule immovable^property in its favour.

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In paragraph IV of the aforesaid SA, the petitioner/applicant has declared that the application was not filed within the stipulated^period and,^{therefore, a separate} application for condonation of delay is filed. In the scrutiny sheet^{(as per} clause¹² therein) the Registry has noted that the application is not filed within the^period of limitation as prescribed under the Act and IA 133012022 has been filed for condonation of delay. Despite all these, overlooking the delay^{noted,the Registryin a casualmanner} on 17.05.2022 ordered to register the SA and the matter was^{placed beforethis Tribunal} on,l8.05.2022.The Registry ought to have^placed IA 133012022before^{this Tribunaland} on getting an order therein only should have been^proceeded to^register the^SA.The

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IA No.1330/2022 in SA No.30l/2022

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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 13.05.2022 challenging the order dated 10.02.2022 passed by the 7th Additional Chief Metropolitan Magistrate, Bengaluru in Crl Misc No.394712021. As per the limitation period stipulated under S.17(1) of the Act, an application ought to have been presented on or before 28.03.2022 but happened to be presented on 13.05.2022 with a delay of 46 days in filing the same.

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According to the petitioner/applicant, he came to know about the impugned order when the bank officials came to the premises of the schedule immovable property and when they told him that they would take physical possession of the same in the next week and subsequently, he obtained the certified copy and hence there is a delay of 45 days in filing the SA. The petitioner/applicant has not divulged as to when the bank officials came to his property and when the proceedings was known to him. Though he submitted that he had obtained a certified copy of the impugned order no such certified copy has been produced before this Tribunal. Going by the documents^produced by the respondent/defendant in the proceedings, the endorsement made at the beneath of the l't page of the demand notice dated 21.01.2020 shows that the petitioner/applicant had pet'sonally received the same. Similarly, the possession notice dated 11.01.2021 had been sent to him by registered post on 12.01.202L and he received the same on^13.01 .2021 as could be inferred from the copy of^postal acknowledgement card^produced.In the^above circumstances, the version of the^{petitioner/applicantto the effect that the bankofficials} came to his property on a date subsequent to 10.02.2022 and advised him that they^would take physical possession of the^property and then only he could be aware of the proceedings initiated by the respondent/defendant invoking the provisions under the Act cannot be believed even for a moment. The^grounds urged by^{the petitioner/applicantin} the application to condone the delay look very abnormal and ambiguous. No^validcase

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IA No.l330/2022 in SA No.30l/2022

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put forward by the petitioner/applicant before this Tribunal to entertain the prayer of condonation of delay.

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' 9. Also, the IA was filed under S.5 of the Limitation Act, 1963. It may^be noted that by virtue of S.24 of the Recovery of Debts and Bankruptcy Act, 1993^(as amended from time to time) - for short '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^{applicationfiled underS.17(l) of the} Act. Moreover, vide order dated 12.07.2023 in Miscellaneous Application^IR No.101ll2}tg in Securitisation Application IR No.3708l2}l8 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 of46^{daysin presentingSA 301/2022 cannot be condoned} and thus the SA cannot be entertained by this^Tribunal. IA^{133012022is liable to be} dismissed. Suffice it to say that SA 30112022^{fails and thus is liable to be dismissed.}

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In the result, IA 133012022 and SA^{30112022are dismissed.IA} Nos.l329l2022 is closed. The respondent/defendant^{cooperativebankis permitted to} proceed with further proceedings^pursuant to the order^{dated 10.02.2022passedby the 7th} Additional Chief Metropolitan Magistrate,^{Bengaluruin Crl Misc No.3947l2021. No}

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costs.

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[Dicrabd^{to my PA, transcribed by him, correctedand pronounced by mein the openTribttnal on t\the2dh day of} November,2123l L

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Y I I^{rMr]AZ ALr} l PRESIDING OFFICER

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IN THE DEBTS RECOVERY TRIBUNAL - 1, KARNATAKA AT BANGALORE

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PRESENT: SRI IMTI AZ ALI PRESIDING OFFICER

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Dated the 20th day of November,Z)23

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INTERLOCUTORY APPLICATION No 1330 of 2022 IN SECURITISATION APPLICATION No.301 OF 2022

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Between

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C K Devegowda, S/o late Kariyappa, 365, 8th Cross, Near Rajeshwali Temple, Rajarajeshwari Nagar, Bengaluru, Karnataka - 560058.

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.....Petitioner/Applicant

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And

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The Mahila Cooperative Bank Limited, No.l3&14, South End Road, Sheshadripuram, Bengaluru, Karnataka - 560020, represented by its authorised officer. .. ... ... Respondent/Defendant

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.. ... ... Respondent/Defendant

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ORDER $.9? 90'

Sri C K Devegowda v. Mahila Co. Operative Bank Ltd.

Case brief

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Sri C K Devegowda v. Mahila Co. Operative Bank Ltd.

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