Dismissed

Bharathi R v. Bharathi R

DRT6 May 2025MA/183/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicants' motion to condone a 28-day delay in restoring a dismissed stay petition. The court held the delay was not justified due to casual prosecution, failure to pay costs, and forum shopping via writ petition. With the asset sold and certificate registered, the application failed.

What did the court decide?

The Motion Application to condone delay and restore the Main Appeal was dismissed with interim orders vacated.

Bharathi R versus Bharathi R — Company and Corporate | DRT (2025)

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MA No.183/23 in SA 345/2023

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06.05.2025

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IN THE DEBTS RECOVERY TRIBUNAL-III, CHENNAI

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Dated this the 06^th day of May, 2025

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Present: SMT. S.V. GOWRAMMA Presiding Officer

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M.A. No.183 of 2023

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S.A. No.345 of 2023

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Bharathi R

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TIANA, 2405, House of Hiranandani OMR

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Chennai – 600 130

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2. Dhanalakshmi

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No.16/5C, Vijayashani Lotus Pond 46, IT Highway Thaiyur – 603 103 ….Applicants

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-Vs-

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Cholamandalam Investment and Finance Company Limited 4^th Floor at ASV Lotus Business Park, No.3/147 Pathari Road (Off Mount Road) Thousand Lights, Chennai – 600 006

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….Respondent

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Counsels on record / appeared:

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Counsel for Applicant : M/s G.R. Associates Counsel for 1^st Respondent : M/s Kishore Balasubramanian

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: - ORDER ON MA No.183 of 2023- :

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The present MA is filed by applicants to condone delay of 28 days in filing petition to set aside the order dated 11.09.2023 and to restore SA No.345/2023.

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MA No.183/23 in SA 345/2023

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06.05.2025

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The applicants are the borrowers had filed the present SA No.345/2023 impugning the sale held on 31.05.2023, pursuant to the Sale Notice dated 26.04.2023 for recovery of a sum of Rs.1,02,62,750/-.

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Along with the SA, IAs 879/23 and 880/23 were filed for urgent hearing and stay. The Tribunal vide proceedings dated 11.07.2023 had entertained the IAs for urgent hearing and stay, as applicant had not chosen to file any memo for discharge of the debt, IAs 879/23 and 880/23 were dismissed with costs of Rs.1500/- each payable to DRT and DRAT Bar Association and the matter stood posted on 25.08.2023 for reporting compliance and for filing AOS.

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As the applicants failed to comply with the direction even after a period of two months and when the matter was taken up on 11.09.2023, as the applicant has not complied with the directions passed vide order dated 11.07.2023, the Tribunal dismissed the SA for default and nonprosecution.

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The applicant has invoked the Writ Jurisdiction in WP No.25085 of 2023 before Hon’ble High Court of Madras, which was taken up on 25.08.2023, notice was ordered to respondent returnable by 11.09.2023. On 11.09.2023, the Writ Petition No.25085 of 2023 came to be disposed of by the Hon’ble High Court of Madras and the following order is passed:

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MA No.183/23 in SA 345/2023

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06.05.2025

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“Heard Mr.Niranjan Rajagopalan, learned counsel for the petitioners and Mr.Kishore Balasubramanian, learned counsel for the second respondent.

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2. It is reported by learned counsel for the petitioners that the main appeal itself has been dismissed by the Debts Recovery Tribunal.

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3. In view of that, the challenge to the interim order would not survive. The petitioners are at liberty to assail the subsequent order and in that event, the challenge to the present order is also kept open.

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4. The writ petition is disposed of. There will be no order as to costs. W.M.P.No.24509 of 2023 seeking permission to file a single writ petition is allowed and disposed of. W.M.P.Nos.24510 & 24513 of 2023 are closed.”

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It is matter of record that applicants have also challenged the S.14 Order of Ld. CJM, Chengalpattu in C.M.P.No.5732 of 2023 dated 21.09.2023 in SA No.579/2023.

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The Tribunal after giving sufficient opportunity has dismissed the SA, as the applicants failed to comply with the directions of this Tribunal.

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Now the present application MA No.183/2023 is filed to set aside the Order dated 11.09.2023 dismissing the SA No.345/2023 admittedly with a delay. The Tribunal had dismissed the petition for stay as the applicant has failed to show bonafide to discharge the debt and also failed to comply with payment of cost of Rs.1500/- in each IA to be paid to DRT and DRAT Association. The applicant instead of paying cost and pursuing the matter, has invoked the writ jurisdiction in W.M.P.Nos.24510 & 24513 of 2023, which came to be disposed of and W.M.P.No.24509 of 2023 seeking permission to file a single writ petition is allowed and disposed of.

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MA No.183/23 in SA 345/2023

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06.05.2025

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It is seen from the records of case status, that W.M.P.Nos.24510 is filed on 18.08.2023 and after the disposal of the WMP on 11.09.2023 and incidentally it is seen that SA 345/23 is also dismissed on 11.09.2023.

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In the affidavit filed along with the delay application, it is submitted that they mistook the proceedings thinking that the pass over was not given as they failed to comply with the order., which only high lights the casualness of the applicant in prosecuting the matter diligently

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In fact it is evident that the applicant is doing forum shopping and had invoked writ jurisdiction instead of complying the payment of cost and proceed further in the matter where they had challenged sale held on 31.05.2023 pursuant to sale notice dated 26.04.2023.

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The applicant has not made out a case to set aside the order dated 11.09.2023 as there is no justifiable reason put forth in not complying with the payment of the costs to the DRT and DRAT Bar Association. Additionally, the applicant though contends that they have complied with the payment of cost to the DRT and DRAT Association has not produced the proof of compliance.

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The applicant without any admissible cause has now filed the present MA.No.183.2023 to condone the delay of 23 days in presenting the instant application.

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MA No.183/23 in SA 345/2023

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06.05.2025

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The respondent bank has filed detailed counter in SA and also in this MA submitting therein that E-auction sale dated 31.05.2023 was concluded pursuant to which the auction purchaser had purchased the schedule property, by paying the entire sale consideration and the sale certificate has also been duly registered as on date. That being the case, the applicant has lost the right of redemption and hence, the restoration of the main application would merely be an empty formality as the applicants has no bonafide case on merits. The applicants have also not acted in delay as they have approached this Tribunal with an instant relief after a lapse of about two months.

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The issue for consideration in the present MA is whether the delay can be condoned?

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The applicant has filed application on 09.11.2023, to set aside the order dated 11.09.2023 and to restore SA No.345/2023 which is not within the period of 30 days to set aside the Order of Dismissal of SA.345/2023.

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However, there is no reason or reasonable cause made out as to why the applicant did not pay the costs of Rs.1500/- each to the DRT and DRAT Bar Association. On the other hand, the applicant has challenged the Order of dismissal of IAs dated 11.07.2023 before the Hon’ble High Court, seeking for Writ of Certiorarified Mandamus to call for the records in SA

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No.345/2023 and to quash the order dated 11.07.2023.

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MA No.183/23 in SA 345/2023

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06.05.2025

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It is seen that the challenge to the interim order would not survive and the applicant was given liberty to assail the order and Writ Petition came to be disposed of vide order dated 11.09.2023. Though the applicant had invoked Writ Jurisdiction, seeking for a direction to this Tribunal, has not shown any bonafides either in making the payment of costs imposed by this Tribunal or any extension given for the non-compliance of the interim condition.

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As the applicants did not comply with the interim order, the Tribunal has rightly dismissed the SA for non-prosecution. However, it is also seen from the records that the E-auction sale is also concluded on 31.05.2023 and the subsequent purchaser has paid the sale consideration and the sale certificate is issued and duly registered before the jurisdictional SubRegistrar.

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That being the case, the applicants, having not exercised their right of redemption available to them under Section 13(8), had also lost his right of redemption and an application under Section 17 challenging the sale held after the conclusion of the sale would not sustain.

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The Tribunal places reliance on the recent judgment of Hon’ble Supreme Court in Celir LLP Vs. Bafna Motors [Mumbai][P] Ltd., reported in [2024] 2 SCC 1 where it is held that under S.13[8] the borrowers right to redeem the secured asset is available till the publication of

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MA No.183/23 in SA 345/2023

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06.05.2025

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the sale notice in the newspaper. In the instant matter is sale is held and the respondent has issued the sale certificate, which is also duly registered.

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As the applicant have failed to give justifiable reason, the Tribunal cannot condone the delay for mere asking for and places reliance of the judgment of Hon’ble Supreme Court in Lingeswaran Vs. Thirunagalingam where it is observed that an application for condo nation of delay has to be dismissed, if it is found that the delay is not properly explained and that the period of limitation cannot be extended on equitable ground. Otherwise, it would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. The court also observed "The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.”

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It is a settled legal proposition that law of limitation may harshly affect a particular party, but it must be applied with all its rigour when the statute so prescribes. The Tribunal has no power to extend the period of limitation on equitable grounds and has no power to ignore that provision to relieve what it considers a distress resulting from its operation as per the Judgement of Hon’ble Supreme Court in the matter of P.K. Ramachandran vs. State of Kerala, reported in (1997) 7 SCC 556, the Hon’ble Supreme Court has held thus:-

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MA No.183/23 in SA 345/2023

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06.05.2025

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"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds".

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Hence, the legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation.

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Further the Hon’ble Apex Court also noted the following observations made in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai , (2012) 5 SCC 157, while dismissing the SLP:

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"The law of limitation is founded on public policy. The limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the legislature. At the same time, the courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation."

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On examination of the facts, documents and the submissions made by the Ld. Counsels, it is evident that the applicant has not pursued the case diligently and has casually taken the conditional order of compliance resulting in the dismissal of the SA.

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MA No.183/23 in SA 345/2023

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06.05.2025

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In fact, the very applicant has also challenged the Section 14 order and is frustrating the measures initiated by the bank under the Act. On the other hand, as the applicants have failed to show bonafides for stay of proceedings in the measures and also on the costs imposed by the Tribunal, has invoked the writ jurisdiction instead of preferring an Appeal under Section 18 of SARFAESI Act as provided before the Hon’ble DRAT. In order to circumvent the payment of appeal fees under S.18 of the Act and without exhausting the statutory appeal remedy available to them, has invoked the Writ Jurisdiction seeking for a direction to consider the SA.

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The applicants have not made out a case for condonation of 28 days delay in restoring the SA and having slept over their right to pursue the case judicially, now cannot come before this Tribunal with a delay application even to condone the delay. Additionally the secured asset is already sold and third party interest is created.

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The Tribunal placing reliance of the above judgments comes to inevitable conclusion that the applicant has failed to make out a case to condone the delay of 28 days to set aside the Order of dismissal dated 11.09.2023.

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