Allowed

Mislu Tp v. State Bank of India

DRT19 Aug 2024MA/143/2024

Case brief

AI extract

What is this about?

The Tribunal allowed a petition to set aside an ex parte order and condone a 189-day delay, conditional upon depositing costs of Rs. 10,000 within ten days, considering the petitioner's prior inaction and change in company management.

What did the court decide?

Petition allowed on condition petitioner deposits Rs. 10,000 as costs by 02.09.2024; otherwise dismissal.

Mislu Tp versus State Bank of India — Civil Procedure and Limitation | DRT (2024)

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Fair order

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IN THE DEBTS RECOVERY TRIBUNAL-1 AT ERNAKULAM

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DATED THIS 19^th DAY OF AUGUST, 2024

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER

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MA No. 143/2024 in OA No.102/2019

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Between

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Mislu T. P. Thazhattupeediyakkal House Nallalam P.O. Kozhikode – 673 027

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---Petitioner/2^nd Defendant

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And

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State Bank of India Asset Recovery Management Branch R. S. Building, M. G. Road Ernakulam, Kochi – 682 011

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Aurchid Footwear India Private Limited Having its registered office : 4/832-A, BC Road Beypore P.O. Kozhikode – 673 015 Represented by its Managing Director Mislu T. P.

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MA No. 143/2024 in OA 102/2019

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Abilash C. Cheral House Kolathar P.O., Kozhikode – 673 655

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Moinudeen Haneefa T. Thengilkath House Beypore P.O., Kozhikode – 673 015

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Saheeda K Kattil House Thikkodi P.O., Kozhikode – 673 529

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---Respondents/Applicant & Defendants 1, 3 to 5

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This petition coming today i.e. 19.08.2024 for hearing before me in the presence of Ms. Alexy, Advocate for the Petitioner/2^nd Defendant and Mr. K. P. Sujesh Kumar, Advocate for the 1^st Respondent/Applicant Bank and arguments from the side of learned counsels for the parties and upon perusing the material records and having stood over for consideration till this day, this Tribunal delivered the following:

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O R D E R

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MA No.143/2024 in OA No.102/2019 :- This petition has been filed by the petitioner praying to condone the delay of 189 days in filing the petition to set aside exparte final order dated 21.11.2023.

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The petitioners have averred in their affidavit filed alongwith the petition that the petitioner is not the present Director of the 1^st defendant company and that the present Director Rafeeq K. A. made payments towards outstanding loan due to the 1^st respondent bank and that the petitioner is unnecessary parties to the proceedings before this Tribunal and that the 1^st respondent bank issued Annexure – A2 OTS proposal to the aforesaid Rafeeq K. A. who has taken over the management of the 1^st defendant company and that the petitioner came to know of passing of the final order dated 21.11.2023 only after he received the copy of the order on 01.01.2024 and that the absence of the petitioner before the Tribunal was not willful and there is delay of 189 in filing this petition and that the delay may be condoned.

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Page 2 of 4

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MA No. 143/2024 in OA 102/2019

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The counsel appearing for the 1^st respondent submitted that the petitioner is the 2^nd defendant in the OA and that he entered appearance through his counsel before this Tribunal on 25.06.2019 and that in spite of granting several adjournments, the petitioner did not file his written statement and that therefore, this Tribunal closed his chance for filing written statement and that subsequently the petitioner was set exparte on 09.01.2023 and that the 1^st defendant is the legal entity and that only on the undertaking given by the petitioner and other defendants loan was sanctioned to the 1^st defendant company and that it was specifically provided in the loan agreements that constitution of the 1^st defendant company shall not be changed or altered without the prior written permission of the 1^st respondent bank during the tenure of the loan and that therefore, the agreement dated 22.06.2017 is not valid and that the petitioner having engaged a lawyer to represent his case in the proceedings is not entitled to take up the contention that he is not the Director of the 1^st defendant company and that retirement of the petitioner from the 1^st defendant company will not absolve him of his liability due to the 1^st respondent bank and that the averment of the petitioner that he came to know the final order only on receipt of the copy of the order is false and that this petition has been filed in collusion with the 1^st defendant company in order to drag on the proceedings of the OA and therefore, the petition may be dismissed.

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It is noticed from perusal of the material records that though the petitioner is the 2^nd defendant entered appearance through his counsel before this Tribunal on 25.06.2019 he did not bother to file his written statement and that since he failed to file the written statement from 25.06.2019 till the date of 17.12.2020, this Tribunal was constrained to close his chance for filing written statement and that since he didn’t take any steps even thereafter to file his written statement, he was set exparte on 09.01.2023.

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This Tribunal does not find any valid reason and substance in the averments of the petitioner that he is not the present Directors of the company and that one K. A. Rafeeq assured him that he would take care of their interest and contest the OA. Be that it may so, this Tribunal is of the considered view that one more opportunity has to be given to the petitioner so as to defend his case in the OA; but at the same time this Tribunal cannot overlook the hardship to be faced by the 1^st respondent bank on account of setting aside the final order passed in the OA against the petitioners.

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Page 3 of 4

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MA No. 143/2024 in OA 102/2019

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Therefore, in view of the above, this petition shall stand allowed on condition that the petitioner deposits a sum of Rs.10,000/- being the costs to the 1^st respondent bank on or before 02.09.2024 failing which the petition shall stand dismissed. List the matter on 03.09.2024.

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Dictated to Steno, taken down, transcribed, typed by her, corrected and pronounced by me in the Open Court, on this the 19^th day of August, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 4 of 4

Mislu Tp v. State Bank of India

Case brief

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Mislu Tp v. State Bank of India

Case brief

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