Dismissed

Shrichand D Kishnani Deceased Through Legal Heirs Vivek S Kishani and Ors. v. Canara Bank

DRT14 May 2024MA/68/2023

Case brief

AI extract

What is this about?

The Appellate Division of the DRT, Mumbai, dismissed an appeal filed by certificate debtors. Relying on the Supreme Court in AIR 2017 SC 5013, the court held that the delay in filing the appeal could not be condoned under Section 5 of the Limitation Act, thereby rejecting the quashing of the impugned order.

What did the court decide?

The Miscellaneous Application No.68 of 2023 was dismissed with no order as to costs. Pending interlocutory applications were disposed of.

Shrichand D Kishnani Deceased Through Legal Heirs Vivek S… — Banking and Recovery | DRT (2024)

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Presented on : 30.10.2023 Registered on : 02.11.2023 Decided on : 14.05.2024 Duration : Y M D 00 06 14

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IN THE DEBTS RECOVERY TRIBUNAL No.2, MUMBAI

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MISCELLANEOUS APPLICTION NO.68 OF 2023 IN APPEAL (D) No.2160 of 2023 IN R.P. NO.602 OF 2004 IN ORIGINAL APPLICATION NO.2599 OF 1999

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Shrichand D. Kishnani (Deceased) through his Legal Heirs

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1a. Vivek S. Kishnani

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1b. Pooja S. Kishnani Through it Power of Attorney

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1c. Mohini S. Kishnani All Adults, Indian Inhabitant, having Address at 20/19, Ashirwad, 2^nd Floor, Opp. Best Quarters, Wadala (West), Mumbai 400031

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Sushil M. Kishnani Adults, Indian Inhabitant, having Address at 304, Matru Chhaya, 378/80, N.N. Street, Mumbai 400009. 3. Mohini S. Kishnani Adult, Indian Inhabitant, having Address at 20/19, Ashirwad, 2^nd Floor, Opp. Best Quarters,

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Page 1 of 7

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Wadala (West), Mumbai 400031

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1. Sangeeta S. Kishnani Adults, Indian Inhabitant, having Address at 304, Matru Chhaya, 378/80, N.N. Street, Mumbai – … Appellants 400009. Versus

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1. Canara Bank Suijer House, 74/76, Kazi Sayeda Steet, Mandvi, Mumbai 400003.

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1. Shri Devandas K. Kishnani (deceased) Legal Heir Premkumar Devandas Kishnani, adult, Indian Inhabitant Having address at 20/19, Ashirwad, 2^nd Floor, Opp. Best Quarters Wadala (West), Mumbai – 400031.

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1. Shamlal Kishnani (deceased) through Legal heirs.

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3(a). Indu S. Kishnani (through Legal heirs.

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3(a)1. Sharmila Satya Pradhan 3(a)2. Aashna Sunil Thuthija Both 3(a) 1 and 3(a) 2 adults, Indian Inhabitants having address at Akash Hemrajani (Executor), Saraswati Building Flat No.31, Opp. Blunt Salon 14^th Road, Khar West, Mumbai- 400052.

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3(a)3. Mrs. Sharmila Rajan Thakkar Adult, Indian Inhabitant,

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Page 2 of 7

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	having Address at 20/19,
	Ashirwad, 14^th Floor, Tilak Road Extn, Wadala, Mumbai – 400031.
3(a)4.	Mrs. Namrata Sunil Thuthija Adult, Indian Inhabitant, having 20/19, Ashirwad, 4^th Floor, Tilak Raod Extn, Wadala, Mumbai-400031.
4.	Om Prakash D. Kishnani Adult, Indian Inhabitant having Address at Gajra House Ground Floor, Tilak Raod Extension, Wadala, Mumbai – 400031.
5.	M/s. Ganapati International
	Having address at 304, Matru
	Chhaya, 378, N.N. Street,
	Mumbai-400009
6.	M/s. Sai Overseas International
	Having address at 304, Matru
	Chhaya, 378/80, N.N. Street, Mumbai – 400009.
7.	M/s. Sai Chemicals A
	Partnership, having address
	304, Matru Chhaya, 378/80, N.N. Street, Mumbai – 400009.
8.	Bagwati D. Kishnani (Since
	Deceased through here legal heirs)
9	Smt. Indu S. Kishnani
	(deceased) Through legal heirs
9(a)	Sharmila Satya Pradhan
9(b)	Ashan Sunil Thuthija Akash
	Hemrajani (Executor) Saraswati

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Page 3 of 7

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Building Flat No.31, Opp. Blunt Salon, 14^th Road, Khar, West, Mumbai – 400052. …Respondents

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APPEARANCES

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For the Appellants	: Mr Herbert Noronha - Advocate
For Respondent	: Ms Vaishali Bhilare – Advocate
No.1
For Respondent	: Ms Sonali Jain – Advocate
No.1(a)
For Respondent	: None
Nos.2 to 9(b)

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Shri Deepak M Thakkar Presiding Officer

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HEARING : 8^th March 2024 PRONOUNCEMENT : 14^th May 2024

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J U D G M E N T

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(1) The appellants are the certificate debtors took exception to the order dated 18^th August 2023 passed by the Recovery Officer (‘impugned order’).

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(2) During the pendency of the execution proceedings, the legal heirs of the Shrichand D. Kishnani, that is, (1a to 1c) and appellants 2 to 4 approached the 1^st respondent for an amicable settlement. On 13^th March 2023, appellant 1(a) sent an email to the 1^st respondent proposing the settlement of Rs.4.5

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Page 4 of 7

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crores. On 3^rd May 22023, the 1^st respondent approved the settlement proposal for Rs.4.5 crores. Based on the settlement between the appellants and respondent 1, on 19^th May 2023, the appellants withdrew the Appeal No.5 of 2014. The 1^st respondent did not object to withdraw the Appeal. Similarly, Saahil Kishnani and Others withdrew Appeal No.11 of 2019. On 25^th May 2023, the 1^st respondent confirmed having received Rs.4.50 crores towards full and final settlement of the dues against the certificate debtor/legal heir of Shrichand D. Kishnani (2^nd defendant), Sushil M. Kishnani (5^th defendant), Mohini s. Kishnani (10^th defendant), Sangeeta S. Kishnani (12^th defendant). Accordingly, defendants/legal representatives of the deceased defendant were released from the personal guarantee of liability by the 1^st respondent. (3) On 22^nd May 2023, the 1^st respondent applied before the Recovery Officer and prayed as follows: “8. (a) The Ld. Recovery Officer be pleased to release the Defendant Nos.2(a), 2(b) and 2(c), Defendant No.5, Defendant No.10 and Defendant No.12 from the Recovery Proceedings No.602 of 2004; (b) The Ld. Recovery Officer be pleased to lift the attachment over the properties viz.

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(i) Flat on 2^nd and 3^rd floor of the building known as “Ashirwad”, on Plot No.20/19, Tilak Road, Near Ambedkar College, Wadala, Mumbai – 400 031.

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(ii) Office No.306, 3^rd floor, Faiz-e-Qutabi Building, Narsi Nath

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Street, Katha Bazar, Mumbai.

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(c) For such other and further reliefs as the nature and circumstances of the case may require;

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Premkumar Devandas Kishnani, the legal representative of deceased Devandas K. Kishnani opposed the application and filed the reply affidavit dated 12^th July 2023.

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(4) On 18^th August 2023, the Recovery Officer rejected the 1^st respondent’s application. Feeling aggrieved by the rejection of the application, the appellants preferred the Appeal belatedly. The appellants filed the waiver application and application to condone the delay.

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(5) The Ruling in International Asset Reconstruction Company of India Ltd. Versus Official Liquidator of Aldrich Pharmaceuticals Ltd. AIR 2017 Supreme Court 5013, the Hon’ble Supreme Court held in paragraph 14 which is reproduced below:

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“14. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent

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for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act.”

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(6) In view of the judicial proceedings, the question of condoning the delay does not arise.

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