Dismissed

Mr Rayappan a v. Canara Bank (Syndicate Bank)

DRT18 Oct 2023SA/448/2022

Case brief

AI extract

What is this about?

The Delhi Debts Recovery Tribunal dismissed an interlocutory application seeking condonation of delay in filing a Securitisation Application under the SARFAESI Act, holding the Tribunal lacks jurisdiction to condone such delay under S.17(1) of the Act and the Limitation Act is inapplicable.

What did the court decide?

The interlocutory application for condonation of delay and the Securitisation Application were dismissed.

Mr Rayappan a versus Canara Bank (Syndicate Bank) — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERY TRIBTINAL - I, KARNATAKA AT BENGALURU

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PRESENT: Szu IMTI AZ ALI

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PRESIDING OFFICER

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Dated the 18th day of October,2023

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INTERLOCUTORY APPLICATION No. 1885 of 2022

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SECURITISATION APPLICATION No. 448 OF 2022

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Between

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Rayappan A, S/o late Arul Mani, 75,gth Main,4th Cross, Ambhabhavani Temple, Muneshware Layout, Vadarahalli Cross, Bangalore, Karnataka - 560097.

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A Chinnappan, S/o late Arul Mani, 75,9th Main,4th Cross, , Ambhabhavani Temple, Muneshware Layout, Vadarahalli Cross, Bangalore, Karnataka - 560097. 3. Joseph Suresh A, S/o late Arul Mani, J5,gth Main,4th Cross, Ambhabhavani Temple, Muneshware Layout, Vadarahalli Cross, Bangalore, Karnataka - 560097.

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, Jayamary A, Wo late Arul Mani, 75,^gth Main, 4th Cross, Ambhabhavani Temple, Muneshware Layout, Vadarahalli Cross, Bangalore, Karnataka - 560097.

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IA No. 1885/2022 in SA No.448/2022

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5.	Selveraj, S/o lateArulMani, 30713,SanimoolaStreet, Michaelpuram, Melsiruvi lur, Vilupuram,Sankarapuram, TamilNadu-605702. .. ...Petitioners/Applicants
And
1. '	The authorisedofficer, CanaraBank, (erstwhileSyndicate Bank), BasaveshwaranagarIIBranch, XGPR+7[tH,l'tMainRoad, 2ndStage,3'dBlock, Basaveshwaranagar, Bangalore, Karnataka-560079.
2.	M/sSubramanya Enterprises, (representedby itsProprietor), KNBGangadharSharma, l4ll,3'dMain.7thCross, NRColony,Bangalore, Kamataka-560097. .Respondents/Defendants
	This Interlocutory Applicationhavingbeen heardon08.02.2023inthepresence
ofAd	vocatesM/s K.CChandrashekara andE Devarajaforthe petitioners/applicants,and
Advoc	atesM/s VigneshShetty,VenuK.Vand PrasannaKumari fortheIttrespondent/l't
defen	dant,andstoodovertothisdayforconsideration,theTribunaldeliveredthe
follow	ing:-

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ORDER

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This petition has been filed on 30.06.2022 under S.5 of the Limitation Act, 1963 rlw 5.24 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 17 days in filing the Securitisation Application (SA) with No.44812022 under S.17(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 petitioners are none other than the applicants in the SA.

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IA No. 1885/2022 in SA No.448/2022

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The case set out by the l't petitioner/lst applicant through his notary attested affidavit accompanying the IA in brief is as follows:- The petitioners/applicants are unaware of the order passed in Crl Misc No.556512021 as no notice was issued to them in the said proceedings. The petitioners came to the knowledge of the proceedings initiated by the I't respondent/l't defendant when the officials of the bank affixed the notice dated 17.05.2022 requesting them to vacate the premises. Immediately, the petitioners applied for certified copy of the order on 15.06.2022and obtained the same on 17 .06.2022 and hence there is no delay from the date of knowledge. If there is any delay, the same may be condoned. On the above contentions, the petitioners/applicants prayed to condone the delay of 17 days in filing the 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 not maintainable. However, when the case was taken up for hearing, Ld counsel for the I't respondent/ltt defendant objected to entertain the SA on the ground that the same is baned by limitation and this Tribunal has no jurisdiction to condone the same.

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No summons is seen issued to the 2'd defendant in the SA. No notice in the IA also appears to have been issued to the 2nd respond entl2'd defendant. Hence, the IA as against the 2nd respondent/2nd defendant is dismissed.

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The only point arises for consideration is as to whether the petitioners/ applicants are entitled to the relief prayed for?

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The Point:- Aggrieved by the order dated 28.04.2022 passed by the XLI Additional Chief Metropolitan Magistrate, Bengaluru in Crl Misc No1.5565i2021, the petitioners/applicants on 30.06.2022 filed an application under S.17(1) of the Act before this Tribunal praying to set aside the impugned order dated 28.04.2022.

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IA No. I 885/2022 in SA No.448/2022

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In paragraph 4 of the aforesaid SA, the petitioners/applicants have 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 sarne. In the scrutiny sheet (as per clause l2 therein) the Registry has noted that the application is not filed within the period of limitation as prescribed under the Act and IA 188512022 has been filed for condonation of delay. Despite all these, overlooking the delay noted, the Registry in a casual manner on 05.07 .2022 ordered to register the SA and the matter was placed before this Tribunal on 07.07.2022. The Registry ought to have placed IA 188512022 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 30.06.2022 challenging the order dated 28.04.2022. As per the limitation period stipulated under S.l7(l) of the Act, an application ought to have been presented on or before 13.06.2022 but the same was happened to be filed on 30.06.2022 with a delay of l7 days in filing the same.

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' 9. According to the petitioners/applicants, they were unaware of the order passed in Crl Misc No.55 6512021 as no notice was issued to them in the said proceedings and they came to the knowledge of the proceedings initiated by the I't respondent/l't defendant only when the officials of the bank alfixed the notice dated 17.05,2022 requesting them to vacate the premises. It may be noted that the provisions of the Act do not contemplate any notice to be issued under an application filed under S.14 of the Act for taking physical possession of the secured assets. Therefore, such a reason raised by the petitioners/applicants is not lawful. It is the contention of the petitioners/applicants that they could be aware of the proceedings initiated by the I't respondent/l't defendnat under the Act only when they received a notice dated 17.05.2022 requesting them to

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the premises. But that is not challenged and what challenged is only the order :::-

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IA No.l885/2022 in SA No.448/2022

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dated 28.04.2022 passed by the XLI Additional Chief Metropolitan Magisrrate, Bengaluru in Crl Misc No1.556512021. The I't defendant has referred to a demand notice dated 28.11.2011 and a possession notice dated 14.03.20t2 in the said letter dated 17.05.2022. But the petitioners/applicants have not uttered a word about that. 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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Also, in one breath the petitioners/applicants are claiming that there is no delhy in filing the SA. However, at the same breath they are submitting that this petition has been filed to condone the delay of 17 days as it is unintentional and due to facts beyond their control only. 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 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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ll. 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 ap application made to a Tribunal under S'19 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 S.l7(l) of the Act. Moreover, vide order dated 12.07.2023 in Miscellaneous Application IR No. 10lll20lg in Securitisation Application IR No.3708/2018 this Tribunal categorically held that the

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lA No. 1885/2022 in SA No.448/2022

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,-\

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Debts Recovery Tribunal has no power to condone the delay in filing application under

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S.17 (1) of the Act, which has become absolute and final.

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In the above facts and circumstances and in view of the discussion as above, the delay of l7 days in presentingSA 44812022 cannot be condoned and thus the same cannot be entertained by this Tribunal. IA 1885/2022 is liable to be dismissed. Suffice it to say that SA 44812022 fails and thus is liable to be dismissed.

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In the result, IA 1885/2022 and SA 44812022 are dismissed. IA Nos. 188612022, 236912022 and 236712022 are closed. The I't respondent/l't defendant is permitted to proceed with further proceedings pursuant to the order dated 28.04.2022 passed by the XLI Additional Chief Metropolitan Magistrate, Bengaluru in Crl Misc NoI.5565i2021. No costs.

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[Dictated^{to my PA, transcribed by him, correctedand pronottnced} hy nte in lhe open Tribunal on this the l8h day of October,2O23J \

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\ Y. \ I^{lN.,trt-tAzALI} ] PRESIDING OFFICER

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IN THE DEBTS RECOVERY TRIBLINAL - I, KARNATAKA AT BANGALORE

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PRESENT: SRI IMTI AZ ALI PRESIDING OFFICER

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Dated the l8th day of October,2023

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INTERLOCUTORY APPLICATION No. 1885 of 2022 IN

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SECURITISATION APPLICATION No. 448 OF 2022

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Between Rayappan A, S/o late Arul Mani, 7 5,^gth Main, 4tl' Cross, Ambhabhavani Ternple, Muneshware Layout, Vadarahalli Cross, Bangalore, Karnataka - 560097 and four others. And The authorised officer, Canara Bank, (erstwhile Syndicate Bank), Basaveshwaranagar II Branch, XGPR + 7 RH, I't Main Road, 2nd Stage, 3'd Block, Basaveshwaranagar, Bangalore, Karnataka - 560079 and another.

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. . ...Petitioners/Applicants

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Re spo nd ent s/D e fendant s

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ORDER

Mr Rayappan a v. Canara Bank (Syndicate Bank)

Case brief

What is this about?

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Mr Rayappan a v. Canara Bank (Syndicate Bank)

Case brief

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