Dismissed

Jaishankar v. Sree Subramanyeswara Co. Operative Bank Ltd.

DRT17 Jul 2023SA/503/2022

Case brief

AI extract

What is this about?

The DRT dismissed the Respondent Bank's objection to the Appellant's appeal. Subsequently, the Tribunal held that it lacks jurisdiction to condone delay for Section 17 SARFAESI appeals, barring the appeal by limitation, and dismissed both the I.A. and the main appeal.

What did the court decide?

I.A No. 2133/2022 for condonation of delay is dismissed; consequently, S.A No. 503/2022 is dismissed; interim order vacated.

Jaishankar versus Sree Subramanyeswara Co. Operative Bank Ltd. — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERY TRIBUNAL-I, KARNATAKA AT BENGALURU

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Dated this the 17th day of July, 2023

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Present: Sri. TMTIAZ ALI

Presiding Officer

I.A No. 213312022

S.A,No.503/2022

BETWEEN:

Sri Jaishankar

S/o. Late Naralappa @^Muniswamappa Aged about 62 years No.43, Guddadahalli R.T. Nagar Post Bengaluru 560 032

PETITIONER/

APPELLANT

AND:

Sree Subramanyeswara Co-opertive Bank Authorised Officer, Rajatha Bhavana No.106, R.V. Road, V.V. Puram Bengaluru 560 004 Represented by its RESPONDENT/ Authorised Signatory RESPONDENT

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Counsels on record/Aooeared for:

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Appellant :Sri Dilip M.R Respondent : Sri T.S. Krishna Murthy

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FINAL ORDER

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The Appellant has filed the present Appeal under Section 17 of the SARFAESI Act, 2002 (for short "Act"), seeking for quashing/setting aside the order passed by the Learned

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l.A No . 2133/2022 in S.A.No.503/2022

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Ist Additional Chief Metropolitan Magistrate, Bengaluru in Crl. Misc No.f54O/2O22 dated 26.04.2022 in respect of the Schedute Property for recovery of loan amount ot Rs,74,56,426/- along with interest thereon, charges, cost etc.

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The facts leading to the present Appeal in a nutshell are that, the Appellant side is the Co-Applicant in respect of the mortgage loan availed by his wife and the Schedule property was gifted to her by the Appellant. The Respondent Bank claims to have mortgage of the schedule property in respect of the alleged loan availed by Appellant side. The Respondent Bank has claimed that they have issued Demand Notice dated 13.12.2019. The said notice was not served on the Appellant. The Respondent Bank also claimed to have issued Possession Notice dated 02.09.2021 which was also not served on the Appellant.

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The Appellant stated that the Appellant has paid sufficient amount to the Respondent Bank. After receiving the said amount also, the Respondent had filed a petition under Section 14 of the SARFAESI Act before the jurisdictional court i.e., Learned I.t ACMM, Bengaluru seeking the direction to be provided to the Respondent in taking physical possession of the schedule property. The Respondent Bank has failed to serve the Demand

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l.A No . 2133/2022 in S.A.No.s03/2022

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Notice and Possession Notice on the Appellant and also when the Respondent has failed to get the same published in the newspapers as required under law and also the account is very much regular. The Respondent Bank has failed to deduct the amount paid by Appellant. The amount shown in the statement of account and the order dated 26.04.2022 passed in Crl. tvlisc. No.l54O/2O22 by I"t ACMM, Bangalore are different from one another.

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The Appellant further stated that the Appellant side has availed the Mortgage loan from the Respondent Bank and has paid sufficient amount. The Respondent Bank without deducting the amount paid by the Appellant, it has obtained the order dated 26.04.2022 passed in Crl. Misc. No. 754O/2OZZ by Ist ACMN4, Bangalore without sufficient cause. Further, the Appellant stated that the Appellant side has paid sufficient amount to the Respondent Bank. Even then the Respondent Bank has classified the account as NPA and the officials of the Respondent Bank without even giving sufficient time and notice as enumerated under the SARFAESI Act, they barged into the Schedule property and without even providing an opportunity for the Appellant and his family members to take the clothes and other day to day requirements, the officials of the Respondent Bank with their

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l.A No. 213312022 in S.A.No.503/2022

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henchmen pushed the Appellant and his family members out of the Schedule Property. The said arbitrary act/s of the officials of the Respondent Bank clearly shows that the officials have not even lost the basic humanitarian traits required while dealing in such situation. The Court Commissioner has also failed to draw a mahazar and panchnama to make the cost of goods and valuables in the house at the time of taking the physical possession of the Schedule Property which is a glaring dereliction of the duty assigned to the Court Commissioner who has no basic understanding about the process/procedure of taking physical possession of the mortgaged property under the SARFAESI Act and Rules, 2002. The same shows that there is gross violation in the process during the taking of the physical possession of the schedule property by the Respondent Bank and hence the schedule property has to be handed back by the Respondent Bank and the bank after complying with the due process procedure including issuance of the Demand Notice and Possession Notice and statutory notice before taking physical possession has to take the physical possession of the schedule property. In the light of the foregoing contentions and the grounds urged, the Appellant has sought to allow the present application memo as prayed for.

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I.A No.2133/2022 in S.A.No.503/2022

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Along with the Appeal memorandum, the Appellant has also filed I.A No. 2733/2022 with affidavit seeking condonation of delay of more than 51 days'in filing the main application before this Tribunal.

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Upon service of notice, the Respondent Bank has entered appeared through its Counsel and subsequently filed detailed objections to the condonation of delay application. According to the Respondent Bank the Appeal has filed by the Appellant is not maintainable either in law or on facts. The Appellant has not approached the Tribunal with any bona-fide impression. Apart from the above, the Appellant has unequivocally admitted the availing of the loan facility from the Respondent Bank. The avermenti made in the affidavit also would not convey any proper meaning before a court of law.

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The Respondent Bank contended that the wife of the Appellant or Appellant has not challenged the^possession Notice dated 02.09. 2021 issued by the Respondent Bank in respect of the property in question. The wife of the Appellant Smt. Padmavathi has filed a Writ^petition N}.229O6/2O27 (GM - Res) before the Hon'ble High Court of Karnataka at Bangalore, challenging the Sale Notice dated 24.17.2021 issued by the

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I.A No.2133/2022 in S.A.No.503/2022

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Respondent Bank in respect of the appeal/suit schedule property. The Hon'ble High Court was pleased to pass/grant an interim order subject to certain conditions. The order passed by the Hon'ble High Court is self explanatory. Till today, the wife of the Appellant has not complied the interim order passed by the Hon'ble High Court in the Writ Petition in respect of the same subject matter of the above appeal. Now, the wife of the Appellant has set up the Appellant to file the above appeal before this Tribunal instead of complying the interim orders passed by the Hon'ble High Court in the aforesaid Writ Petition in respect of the property in question.

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The Respondent further contended that the averment made in the Writ Petition and the averments made in the above appeal are quite contrary with each other. The act and attitude of the Appellant and his wife is nothing but an abuse of due process of law. Further, the address of the Appellant mentioned in the alfidavit is not correct. The Tribunal may be pleased to direct the Appellant to furnish the document in proof of his address mentioned in the affidavit.

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The averments made in para V,1 of the Appeal memo in respect of status of the Appellant towards the loan, owner of the property and transactions between the Appellant and his wife with

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l.A No. 2133/2022 in S.A.No.503/2022

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the Respondent Bank are all the matters of records. The Appellant is cleverly stated about the mortgage of the^property and surety given by the Appellant to the mortgage loan availed by his wife.

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The averments made in respect of non-service of the Demand Notice and Possession Notice issued by the Respondent Bank is hereby denied as false.

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The Respondent Bank contended that the averments made in the Writ Petition filed by the wife of the Appellant speaks'the truth in respect of service of Demand and Possession Notices issued by the Respondent Bank torr'/ards the schedule^property. The bank has given deduction to each and every rupee paid by the Appellant as well as his wife. In fact, in the first para of the Appeal memo, the Appellant has stated that his wife has availed the mortgage loan and he has stood has a surety/guarantor. Within a few paras, the verslon has been changed, this is the standard of the Appellant before a court of law.

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The Respondent Bank further contended that the bank has given ample opportunities to the Appellant as well as to his wife to repay the loan amount but they have not taken proper care/steps to repay the loan as agreed upon by them. Now, the Appellant is blaming as if, he has not done anything. The Appellant has not at

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I.A No.2133/2022 in S.A,No,503/2022

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all given any reasons for the delay in filing the above appeal before this Tribunal.

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Wherefore, the Respondent Bank prayed that the Tribunal may be pleased to dismiss the application filed by the Appellant to condone the delay of 51 days in filing the above appeal before this Tribunal with exemplary costs for the ends of equity and justice.

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On the above background, I have gone through the available records and heard arguments addressed by Learned Counsels appearing for both the sides. The following points arise for my consideration:

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a) Whether the Appellant has made out the case

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condonation of delay in filing the Appeal? and

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b) To what relief, the parties are entitled?

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REASONS

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The Appellant has filed the securitjzation application along with condonation of delay application I.A.No.2133/2022 on 30.O7.2022 seeking to condone the delay of more than S1 days in approaching this Tribunal to file the present Securitization Application. As pointed by the Respondent Bank, the condonation

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I.A No.2133/2022 in S.A.No.503/2022

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of delay application has been filed without giving any proper reasons for the delay in submitting the appeal. In this context, it will be proper to mention that this Tribunal has no power to extend the period of limitation on equitable grounds and has also no power to ignore that the provision to relieve what it considers a distress resulting from its operation as per the judgment of Hon,ble Supreme Court in the matter of P.K.Ramachandran Vs. State of Kerala, reported in 1997 (7) SCC 556 where the Hon,ble Supreme Court has held that when the law so prescribes, the courts have no power to extend the period of limitation. In this case, Section 14(3) of the SARFAESI Act excludes the application of the Limitation Act, 1963 and as such, the statute does not give any power to the DRTS to condone delay. When the statute does not prescribe for condonation of delay, the application of Section 5 of Limitation Act does not arise. In a case ti ed K.p.Jayan V/s

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Hong Kong and Shanghai Banking Corporation Limited and Others, the Hon'ble High Court of Kerala has categorically held the^power to condone delay in entertaining an application under Section 17 of the SARFAESI Act is not conferred on the Debts Recovery Tribunal. It was further held that the Debts Recovery Tribunal cannot consider an application for condonation of delay in an application under Section 17 of the SARFAESI Act. Therefore,

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l,A No. 2L33/2022 in S.A.No.503/2022

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the Appeal in question appears to be barred by limitation. In that view of the matter, the Applicant has failed to make out a case for condoning the delay.

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Accordingly, I pass following:

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ORDER

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In the result, I.A, No.2133 of 2022 for condonation of delay is dismissed.

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Consequently, S.A.No.503 of 2022 is also dismissed.

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Interim order, if any, stands vacated. Pending IAs, if any, also stand closed.

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There will be no order as to cost.

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(Dictated to the Stenographer, directly on computer, corrected signed by me and then pronounced by me in the Open Court on thls the 17h day of July, 2023)

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. ,.+?'

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Y11'l (IMTIAZ ALI) PRESIDING OFFICER DRT.I, BENGALURU

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.SR.

Jaishankar v. Sree Subramanyeswara Co. Operative Bank Ltd.

Case brief

What is this about?

What did the court decide?

Jaishankar v. Sree Subramanyeswara Co. Operative Bank Ltd.

Case brief

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