Dismissed

M S Alpha Cabs Private Limited v. Canara Bank

DRT20 Sept 2023SA/378/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed an interlocutory application seeking condonation of excessive delay in filing a securitisation application challenging a possession notice, holding the delay beyond the Supreme Court's outer limit and noting the applicability of the SARFAESI Act.*

What did the court decide?

IA No.1655/2022 and Securitisation Application No.378/2022 are dismissed.

M S Alpha Cabs Private Limited versus Canara Bank — Company and Corporate | DRT (2023)

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IN THE DEBTS RECOVERY TRIBLINAL - I, KARNATAKA AT BENGALURU

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PRESENT: SRI IMTI AZ ALI PRESIDING OFFICER

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Dated the 20th day of September ,2023

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INTERLOCUTORY APPLICATION No. 1655 of 2022

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SECURITISATION APPLICATION No. 378 OF 2022

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Between

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M/s Alpha Cabs Private Limited, l/A, 1't Floor, Property No.8/8/1, Srilalitha Complex, Jakkur Plantation, Yashoda Nagar, Bengalur, Karnataka - 560064, represented by Proprietor, Vimala Nayak K.

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. . ...Petitioner/Applicant

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And

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Canara Bank, Hi Tech Agricultural Finance Branch, Unity Buildings, J.C Road,

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Bangalore, Karntaka - 560002.

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Bharathi Singh,

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W/o late Narayan Mohan Singh,

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7A, Vaishnavi Nilaya, 52nd Cross,4th Block, Near Ramamandir Temple, Raj aj inagar, Bengaluru, Karnataka - 560010.

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Vaishnavi Singh, D/o late Narayan Mohan Singh,

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7A, Vaishnavi Nilaya,

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52nd Cross, 4th Block,

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Near Ramamandir Temple, Raj aj inagar, Bengal uru, Kamataka - 560010.

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<br>

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Harshitha Singh, (minor) D/o late Narayan Mohan Singh, 74, Vaishnavi Nilaya, 52nd Cross, 4th Block, Near Ramamandir Temple, Raj aj inagar, Bengaluru, Karnataka - 560010

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Respondents/Defendants

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IA No.l655/2022 in SA No.378/2022

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This Interlocutory Application having been heard on 18.08.2022 in the presence of Advocate Smt Sandhya U Prabhu for the petitioner/applicant, and Advocates M/s M.R Shashidhar and D.R Joshi for the I't respondent/l't defendant, and respondents 2 to 4/defendants 2 to 4 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 09.06.2022 under S.5 of the Limitation Act, 1963 rlw 5.22(2Xh) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) - for short 'the RDB Act' praying to condone the delay of 217 days in filing the Securitisation Application (SA) with No.378/2022 under S.l7(l) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (as amended from time to time) - for short' the Act'. The petitioner is none other than the applicant in the SA, who obtained a financial assistance of t200 lakhs from the ltt respondent/ l't defendant bank.

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The case set out by the petitioner/applicant through her notary attested affidavit accompanying the IA in brief is as follows:- This petitioner came to know about the possession notice challenged in the SA through her husband only. Though this petitioner sought for one time settlement by paying a sum of {25 lakhs, the same is pending consideration with the l't respondent/l't defendant. Hence this application to condone the delay of 217 days occurred in filing the aforesaid SA.

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Though the I't respondent/l't defendant filed a detailed statement of objection defending the averments in the SA, no pleading regarding this IA has been made therein except to the contention that the SA filed is hopelessly barred by limitation. However, when the case was taken up for hearing, Ld counsel for the I't respondent/l't defendant vehemently objected to entertain the SA on the ground that the same is barred by limitation and this Tribunal has no jurisdiction to condone the same.

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IA No.l655/2022 in SA No.378/2022

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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 possession notice dated 20.09.2021issued by the authorised officer of the l't respondent/l't defendant bank under S.13(4) of the Act r/w R.8(l) of the Security Interest (Enforcement) Rules, 2002, (as amended from time to time) the petitioner/applicant on 09.06.2022 filed, an application under S.l7(l) of the Act before this Tribunal praying to set aside the impugned possession notice dated 20.09.2021.

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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 also filed along with the same. 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 IA 165512022 has been filed for condonation of delay. Despite all these, overlooking the delay noted, the Registry in a casual manner on 10.06.2022 ordered to register the SA and the matter was placed before this Tribunal on 13.06.2022. The Registry ought to have placed IA 165512022 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. However, according to the petitioner/applicant, she could come to know about the possession notice challenged in the SA through her husband only and though she sought for one time settlement by paying a sum of t25 lakhs, the same is pending consideration with the I't respondent/l't defendant and hence the delay. Ld counsel for the 1tt respondent/lrt defendant vehemently argued that the SA is barred by limitation and this Tribunal cannot condone the delay.

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IA No.l655/2022 in SA No.378/2022

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In fact, the SA was presented on 09.06.2022 challenging the possession notice dated 20.09.2021. As per the limitation period stipulated under S.l7(l) of the Act, an application ought to have been presented on or before 04.11.2021 but happened to be filed on 09.06.2022 with a delay of 217 days in filing the same.

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The Hon'ble Supreme Court rn In Re : Cognizance for Extension o-f Limitation [reported in 2022^(l) KLT 315^(SC.U taking into consideration the impact of the surge of covid viruses on public health and the adversities faced by the litigants directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all^judicial or quasi-judicial proceedings and that in cases where the limitation would have expired during the period between 15.03.2020 til|28.02.2022, notwithstanding the actual balance period of imitation remaining, all person shall have a limitation period of 90 days from 0l .03.2022, and the relevant portion reads as below:-

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"Taking into consideration the arguments advanced by counsel and the impact ofthe surge ofthe virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the MA No.2l of 2022 with thefollowing directions: The order dated 23.03.2020 is restored and in continuotion of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from I 5.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as moy be prescribed under any general or special laws in respect of all^judicial or quasi-judicial proceedings. Consequently, the balance period of limitation remaining as on 03.10.202 1, if any, shall become ovailable wilh effect from 0l .03.2022. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 daysfrom 01.03.2022. In the event the actual balqnce period of limitation remaining, with effectfrom 01.03.2022 is greater than 90 days, that longer period shall apply. It is further clarified that the periodfrom 15.03.20920 till 28.02.2022 shqll also stand excluded in computing the periods prescribed under 5s.23(4) and 29A of the Arbitration and Conciliation Act, 1996, S.l2A of the CommercialCourts Act,20l5 and provisos (b) and (c) of S 138 of the Negotiable Instruments Act, l88l and any other laws, which prescribe period(s) of linitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

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In view of the above direction by the Hon'ble Supreme Court, the

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petitioner/applicant was entitled to present an application under 5.17(1) of the Act aggrieved by the possession notice dated 20.09.2021 on or before 30.05.2022 as the limitation (stipulated date of '04.11.2021') had expired during the period between 15.03.2020 and28.02.2022. However, she presented the same on 09.06.2022 only, well beyond such date prescribed by the Hon'ble Supreme Court. In the above circumstances,

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IA No.165512022 in SA No.378/2022

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the delay of l0 days (excluding the period up to 30.05 .2022 from the delay of 217 days) in presenting SA No.378/2022 do not come within the outer limit within which this Tribunal can condone as directed by the Hon'ble Supreme Court in the decision supra.

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The grounds urged by the petitioner/applicant in the application to condone the delay look very abnormal and ambiguous. No valid case put forward by the petitioner/applicant before this Tribunal to entertain the prayer of condonation of delay. 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 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.l9 of RDB Act only. Therefore, it may be noted that the provisions of the Limitation Act, 1963 are not applicable to an application filed under 5.17(1) of the Act. Moreover, vide order dated 12.07.2023 in Miscellaneous Application IR No.l}lll2}lg 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.l7 (1) of the Act, which has become absolute and final.

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1 1. In the above facts and circumstances and in view of the discussion as above, the delay of ten days in presenting SA 37812022 cannot be condoned and thus the

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same calrnot be entertained by this Tribunal. lA 165512022 is liable to be dismissed. Suffice it to say that SA 37812022 fails and thus is liable to be dismissed.

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In the result, IA 165512022 and SA 378/2022 are dismissed. IA Nos. 165712022,226312022 and226412022 are closed. The 1't respondent/l't defendant bank is permitted to proceed with further proceedings pursuant to the possession notice dated 20.09.2021. No costs.

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[Dictated^{to my PA, transcribed} by him, corrected and pronounced by me in the open Tribunal o4this the 2dh day of september,212jJ

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I \ 1^{lr$rrlez 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^September ,2023

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INTERLOCUTORY APPLICATION^{No. 1655of 2022} IN SECURITISATION APPLICATION^{No.378 OF 2022} Between

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M/s Alpha Cabs Private^Limited, 1/A, 1't Floor, Property^No.8/8/1, Srilalitha Complex, Jakkur^Plantation, Yashoda Nagar, Bengalur, Karnataka - 560064,^{representedbY} Proprietor,VimalaNayakK.^{.....Petitioner/Applicant}

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And

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Canara Bank, Hi Tech Agricultural Finance^Branch, Unity Buildings, J.C^Road, Bangalore, Karntaka - 560002 and three others Respondents/Defendants

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ORDER

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:* q,0' '

M S Alpha Cabs Private Limited v. Canara Bank

Case brief

What is this about?

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M S Alpha Cabs Private Limited v. Canara Bank

Case brief

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