Dismissed

Mohammed Ashraf C K v. Manjeri Cooperative Urban Bank Ltd.

DRT10 May 2024MA/256/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed the petitioner's application seeking condonation of a 938-day delay in filing a restoration petition for a previously dismissed Securitisation Application. The court found the petitioner's explanations unsatisfactory and his version of events lacking credibility.

What did the court decide?

Petition for condonation of delay in filing restoration petition dismissed.

Mohammed Ashraf C K versus Manjeri Cooperative Urban Bank Ltd. — Banking and Recovery | 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 10^th DAY OF MAY, 2024

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

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MA No.256/2023 in

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SA No.402/2019

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Between

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Mohammed Ashraf C. K. S/o. Veeran Haji Chenattukuzhiyil Kilikkottuthodika House Mongam P.O. Malappuram District

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--- Petitioner/Applicant

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And

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The Manjeri Co-operative Urban Bank Ltd. Represented by its General Manager/Authorised Officer Malappuram District

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Haneefa S/o. Muhammed Pilikkathodi House Nediyiruppu Amsom, Eranad Taluk Malappuram District

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--- Respondents/Defendants

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This petition coming on 12.04.2024 for hearing before me in the presence of Ms. Anlit Therese Shaji, representing Counsel for the Petitioner/Applicant and Mr. Vidyasagar, Advocate for the 1^st Respondent/1^st Defendant and upon hearing arguments of learned counsel for the parties and upon perusing the material records, this Tribunal delivered the following:

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MA 256/2023 in SA 402/2019

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O R D E R

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MA No.256/2023 in SA No.402/2019 :- This petition has been filed praying to condone the delay of 938 days in filing the restoration petition in the above Securitisation Application.

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The petitioner is the applicant in SA No.402/2019 which was filed against the respondents herein. The 1^st respondent herein is the 1^st defendant in the SA. The SA was filed challenging Annexure – A4 notice issued by the Advocate Commissioner and also for stay of all further proceedings pursuant to Annexure – A2 petition filed under Section 14 of the SARFAESI Act, 2002. SA was dismissed for default as well as for want of prosecution by the side of the petitioner/applicant on 10.02.2021. The petitioner did not take any steps to set aside the above dismissal order of the SA by filing the restoration petition within the stipulated period. Now the petitioner has filed this petition to condone the delay of 938 days in filing the petition Diary No.15174/2023 to restore the SA which was dismissed for non-prosecution as early as on 10.02.2021.

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It is the contention of the petitioner that the dismissal of the SA came to his knowledge only on the last day when the Advocate Commissioner issued fresh notice for taking physical possession of the property and that his earlier counsel never informed him of the dismissal of the SA and that the petitioner had been under the belief that SA was pending and that there is a delay of 938 days in filing this petition and that therefore, the delay may be condoned.

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The rival contention of the 1^st respondent is that after dismissal of the SA, the notice of dispossession dated 12.06.2023 was issued by the Advocate Commissioner and that the notice was challenged by the petitioner in W.P.(C) No.21732/2023 before the Hon'ble High Court of Kerala and that interim conditional order passed in the judgment Annexure – B7 directing him to remit a sum of Rs.20 Lakhs within the stipulated period was not complied with and that the above proceedings of the writ petition has been suppressed by the petitioner in his affidavit and that the petitioner has purposely failed to produce the earlier notice issued by the Advocate Commissioner and that the petitioner has also not stated in his affidavit as to on which date he came to know of dismissal of the SA and that the petitioner has not shown sufficient cause in his affidavit for the delay of 938 days in filing the petition for restoration of the SA and that the acts of the negligence or inaction on the part of the petitioner does not constitute sufficient cause to condone the delay and that therefore, the petition may be dismissed.

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Page 2 of 3

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MA 256/2023 in SA 402/2019

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A perusal of the averments of the affidavit of the petitioner filed alongwith this petition would show that he has conveniently omitted to mention the exact date on which he came to know of the dismissal of the SA and that he has also suppressed the fact to state as to on which date he received the first notice of the Advocate Commissioner. Therefore, this Tribunal is not inclined to believe the above version of the petitioner that he came to know of dismissal of the SA only after he had received the fresh notice of Advocate Commissioner.

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It is for the petitioner to know the status of the case which was filed by him and to enquire his earlier Advocate to know the status of his case, if his earlier counsel had failed to inform him of the dismissal of the SA. In any event, this Tribunal is not in a position to accept the contention of the petitioner that his earlier counsel failed to inform him of the dismissal of the SA.

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Even assuming for the argument’s sake (without admitting) that the petitioner came to know of the dismissal of the SA only on the date of issuance of the fresh notice by the Advocate Commissioner, he could have filed this petition immediately sooner after receipt of the fresh notice of the Advocate Commissioner. The contention of the 1^st respondent in his counter affidavit that the notice of dispossession dated 12.06.2023 issued by the Advocate Commissioner was challenged by the petitioner by filing W.P.(C) No. 21732/2023 before the Hon'ble High Court of Kerala on 03.07.2023, is neither challenged nor is refuted by the petitioner by filing any rejoinder. The 1^st respondent has also produced copy of judgment Annexure – B7 passed in W.P.(C) No. 21732/2023. The petitioner has not stated any cogent reasons in his affidavit as to why he could not file this petition even after his knowledge of dismissal of the SA on receipt of the Advocate Commissioner notice. This petition was filed only on 05.10.2023. The above inaction and failure of the petitioner to file this petition even after receipt of the Advocate Commissioner notice itself reveals the fact that he was not sincere and keen in taking steps to restore the SA to file.

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In any event, the petitioner has not stated any satisfactory and convincing reasons in his affidavit, so as to convince this Tribunal to condone the delay of 938 days in filing the petition to restore the SA.

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Resultantly, this petition MA No.256/2023 stands dismissed.

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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 10^th day of May, 2024.

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[Su. WILLYAHM] PRESIDING OFFICER

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Page 3 of 3

Mohammed Ashraf C K v. Manjeri Cooperative Urban Bank Ltd.

Case brief

What is this about?

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Mohammed Ashraf C K v. Manjeri Cooperative Urban Bank Ltd.

Case brief

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