Allowed

State Bank of India, Yellareddyguda, v. M. Ganga Raju

Telangana HC7 Jul 2011CRP/181/2009

Case brief

AI extract

What is this about?

High Court set aside DR Tribunal orders condoning a 190-day delay and restoring secured applications, as the Tribunal acted without statutory authority and lacked party affidavits explaining the delay. Civil revision petitions allowed.

What did the court decide?

Impugned orders condoning delay and restoring SAs set aside; MA.Nos.123 and 124 of 2008 stand dismissed; CRPs allowed.

State Bank of India, Yellareddyguda, Vs M. Ganga Raju — Banking and Recovery | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD

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THURSDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN

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PRESENT::

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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C.R.P.Nos.179, 181, 923 & 924 of 2009

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C.R.P.No.179 of 2009

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Between: State Bank of India, Yellareddyguda, Rep. by its Authorised Officer.

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…Petitioner

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A n d Smt.G.Nagalakshmi and another C.R.P.No.181 of 2009 Between: State Bank of India, Yellareddyguda, Rep. by its Authorised Officer.

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..Respondents

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…Petitioner

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A n d M.Ganga Raju and another ..Respondents C.R.P.No.923 of 2009 Between: State Bank of India, Yellareddyguda, Rep. by its Authorised Officer. …Petitioner A n d M.Ganga Raju and another ..Respondents A N D C.R.P.No.924 of 2009 Between: State Bank of India, Yellareddyguda, Rep. by its Authorised Officer.

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…Petitioner

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A n d Smt.G.Nagalakshmi and another

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..Respondents

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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C.R.P.Nos.179, 181, 923 & 924 of 2009

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COMMON ORDER:

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C.R.P.No.179 of 2009 is directed against the order dated 05.09.2008 in I.A.No.618 of 2006 in SA.No.12 of 2005, C.R.P.No.181 of 2009 is directed against the order dated 05.09.2008 in IA No.615 of 2006 in SA.No.11 of 2005, C.R.P.No.923 of 2009 is directed against the order dated 28.11.2008 in MA.No.123 of 2006 in SA No.11 of 2005 and C.R.P.No.924 of 2009 is directed against the order dated 28.11.2008 in M.A.No.124 of 2006 in SA No.12 of 2005, on the file of the Debts Recovery Tribunal, Hyderabad.

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2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record.

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3. The respondents herein are the borrowers from the petitioner- bank. The petitioner-bank initiated steps against the respondents under the Securitization and Reconstruction of Financial Assets

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and Enforcement of Security Interest Act, 2002 (for short “the Securitization Act”). Questioning the same, the respondents filed SA.Nos.11 and 12 of 2005. On 02.02.2006, both SA.Nos.11 and 12 of 2005 were dismissed for default, as the respondents were not present and there was no representation. Subsequently, they filed IA. No.615 of 2006 in SA No.11 of 2005 and IA No.618 of 2006

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in SA.No.12 of 2005 under Sections 22 (2) (f) & (g) for condonation

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of delay of 190 days in filing the applications for restoring

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SA.Nos.11 and 12 of 2005 by setting aside the dismissal order dated 02.02.2006. Sri T. Vijay Kumar, learned counsel for the borrowers, filed affidavit before the Tribunal in support of the said applications stating that on that day he was suffering from viral fever and he entrusted the matter to his colleague to seek adjournment, but his colleague could not be present on time before the Court and as such, the matters came to be dismissed. The petitioner-bank herein filed counter therein opposing the said applications inter alia contending that nothing survives in the main SAs and as the bank has already sold away the secured assets i.e., plot mortgaged by the borrowers, and the purchaser has paid the sale amount and sale certificate was also issued in favour of the purchaser and it was also registered with the Sub-Registrar’s Office and possession was also delivered to the auction purchaser. It was further contended that though number of opportunities were granted by the Tribunal to the respondents herein-borrowers to deposit the amounts, while granting conditional stay, the borrowers failed to comply with the same and as such stay granted by the Tribunal was vacated. The respondents, therefore, contended that the main SAs themselves became infructuous and hence, there was no justification for condoning the delay or restoration of the SAs to file.

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4 . The Tribunal by order dated 05.09.2008 allowed IA.No.615 of 2006 in SA.No.11 of 2005 and IA.No.618 of 2006 in SA.No.12 of 2005 and condoned the delay of 190 days in filing the applications and restored the main SAs, subject to payment of costs of Rs.1500/-. Aggrieved by the same, CRP.No.181 of 2009 and CRP No.179 of 2009 are filed by the bank.

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5. Consequent upon the condonation of delay, main applications to restore SA.Nos.11 and 12 of 2005 were numbered as MA.Nos.123 and 124 of 2008 respectively. The same affidavit filed in support of the application in IA.Nos.615 and 618 of 2006 filed by Sri T. Vijay Kumar, learned counsel for the borrowers, was pressed into service in support of the applications in MA.Nos.123 and 124 of 2008 also.

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The petitioner-bank filed counter opposing the applications, raising self same conditions, including the one that nothing survives in the SAs, as the secured assets were already sold in public auction and third party-auction purchaser paid the amounts and sale certificate was issued and the same was also registered and possession was also delivered. The Tribunal, by order dated 28.11.2008, allowed

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MA. Nos.123 and 124 of 2008, observing that the contentions raised by the bank can be considered at the time of final hearing of the

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SAs. Aggrieved by the same, the petitioner bank filed CRP.Nos.923 and 924 of 2009.

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6 . Learned counsel for the petitioner-bank would mainly contend that the SAs themselves have since becomes infructuous because the secured assets have already been sold and possession was also delivered to the third party-auction purchaser and nothing survives in the SAs themselves and hence, the restoration would not serve any purpose. Learned counsel for the respondentsborrowers would, on the other hand, contend that the revision petitions themselves are not maintainable under Article 227 of the Constitution, as there is an effective alternative remedy of appeal provided under Section 18 of the Securitization Act. In support of his contention, he relied

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upon the decision in SADHANA LODH V. NATIONAL INSURANCE COMPANY LIMITE D^[1] wherein the apex Court held as follows:

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‘The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution. ‘

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It was further held as follows:

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‘The supervisory jurisdiction conferred on the High Courts under Article 227of the Constitution is confined only to see whether an inferior Court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the high Court does not act as an appellate Court or a tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision.’

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7. He also relied upon the decision in SURYA DEV RAI V. RAM CHANDER RAI^[2] wherein the apex Court while dealing with the scope of jurisdiction of the High Court under Article 227, vis-à-vis Article 226 of the Constitution and Section 115 CPC, held as follows:

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“Supervisory jurisdiction under Art. 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction”.

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Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the

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proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

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A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.

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The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.”

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It was further held as follows:

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“…At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.”

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8 . In ‘STATE BANK OF INDIA V. ALLIED CHEMICAL

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LABORATORIE S^[3] , the Apex Court held that ‘the respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances

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and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it was set aside.’

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9 . In a recent decision in KANAIYALAL LALCHAND SACHDEV V. STATE OF MAHARASHTR A^[4] , the Apex Court held that ‘it is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.’

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10. Learned counsel for the petitioner-bank relied on the decision in SHALINI SHYAM SHETTY V. RAJENDRA SHANKAR PAT H^[5] wherein it was held that ‘the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.’

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11. The principles laid down in the above decisions to the effect that when an efficacious alternative remedy is available, resort to Article 227 of the Constitution of India is uncalled for and unjustified, is not disputed. Section 18 of the Securitization Act enables any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, to prefer an appeal to the Appellate Tribunal within thirty days. Section 17 of the Securitization Act enables any person, including borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor to make an application to the Debts Recovery Tribunal within forty five days from the date on which such measures had been taken. Section 13(4)

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contemplates various measures that a secured creditor may take recourse to in case the borrower fails to discharge his liability.

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It is only to assail such measures contemplated under Section 13(4) by the secured creditor that the borrower can make an application under Section 17 to the Debts Recovery Tribunal and against the orders passed under Section 17, a right of appeal is provided under Section 18 to the Appellate Tribunal. The learned counsel for the respondents has not brought to the notice of the Court as to the existence of any provision enabling a person to prefer an appeal against the order passed by the Tribunal condoning or refusing to condone the delay. In other words, it is not shown that an alternative and efficacious remedy is available to the petitioner herein to assail the impugned order by way of appeal. In the absence of any such alternative or efficacious remedy, recourse to Article 227 is perfectly justified, especially in a case like the present one where the impugned order is vitiated by lack of application of mind.

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12. In the present case, S.A.Nos.11 and 12 of 2005 were dismissed for default due to non-appearance of the respondents herein on the date of hearing. I.A.Nos.615 and 618 of 2006 were filed to condone the delay of 190 days in filing the applications M.A.Nos.123 and 124 of 2008 for restoration of the main SAs. The said applications I.A.Nos.615 and 618 of 2006 are purported to have been filed “under Sections 18 and 22(2) (f) and (g) of the Debts Recovery Tribunal (Procedure Rules)”. The said rules do not contain any such provision under which the two applications are purported to have been filed. Even if it is to be assumed that the applications are filed under Sections 22(2) (f) and (g) of the Recovery of Debts Due to Banks and

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Financial Institutions Act, 1993 (for short ‘the 1993 Act’), the said provisions clothe the Tribunal with the same powers as are vested in a Civil Court under CPC in respect of, among other things dismissal of an application for default or deciding it ex parte and setting aside any order of dismissal of any application for default or any order passed by it ex parte. Section 18 of the said Act relates to bar of jurisdiction. Neither Section 18 nor Section 22 of the 1993 Act contains any provision that enables a party before the Tribunal to seek condonation of delay in filing an application for setting aside an order dismissing the SA for default. Section 22 (2)(f) and (g) under which the applications in I.A.Nos.615 and 618 of 2006 are purported to have been filed deal with dismissal of the application for default and its restoration, but not with condonation of delay in filing the application for restoration. The learned counsel for the respondents have not brought to the notice of the Court as to the existence of any other provision in the 1993 Act or the Rules thereunder that enables the party to seek condonation of delay. Though Section 24 of the 1993 Act states that the provisions of the Limitation Act, 1963, shall, as far as may be, apply to an application made to a Tribunal, admittedly, no application is filed by the respondents under the provisions of the Limitation Act. The impugned order of the Tribunal dated 05.09.2008 in I.A.Nos.615 and 616 of 2006 also does not disclose under what provision of law the application was entertained and by invoking which provision of law the delay was condoned. The Tribunal has also overlooked the fact that no affidavit is filed by the respondents explaining the reasons for the delay in support of the application filed for condonation of the same. The affidavit in support of the petition was filed by Sri T.Vijay Kumar, the learned counsel

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for the applicant, wherein he stated that he was suffering from fever and entrusted the matter to his colleague to seek adjournments, but his colleague could not attend the Court in time and so the SA came to be dismissed on 02.02.2006. The said averment in the affidavit only seeks to explain his absence on 02.02.2006. In the affidavit, he further stated that the applicant’s health was not well as he fell sick and so the applicant could not contact the Advocate and give necessary instructions and, therefore, he could not file the petition within time and hence there occurred a delay of 190 days. In fact, there are two applicants and the affidavit filed by the counsel does not disclose as to who among them fell sick and for what period. Curiously, the applicants themselves have not filed any affidavit to the effect that they fell sick at the relevant time and, therefore, could not contact the Advocate. It was obligatory on the part of the applicants to have explained the delay in filing the application for restoration by furnishing satisfactory reasons by way of an affidavit. In the absence of any such explanation for the delay on the part of the applicants, the Tribunal ought not to have entertained the application based on the affidavit filed by the learned counsel for the applicant, as the reasons for the delay in filing the application would be within the personal knowledge of the applicants and can be furnished only by the applicants and not by the counsel.

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13. The Tribunal has entertained an application which is filed under non-existent provisions of law and not supported by an affidavit of the applicants duly explaining the reasons for the delay. The impugned order does not also disclose any reasons for condonation of the delay, except stating that if delay is not condoned, justice cannot be done. The impugned order does not disclose that the grounds urged

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for condoning the delay are found to be satisfactory. It is well settled that delay cannot be condoned as matter of routine and there shall exist satisfactory explanation of the delay before the same can be condoned. In the absence of affidavit filed by the applicants duly explaining the reasons for the delay, it cannot be said that there has been satisfactory explanation of the delay. The impugned order condoning the delay without the application being filed under proper provision of law and without there being any affidavit of party in support of the application explaining the reasons for the delay, is wholly unsustainable and the same is liable to be set aside and is accordingly set aside. 14. In the circumstances, it is held that the impugned orders in I.A.Nos.615 and 618 of 2006, condoning the delay in filing the applications M.A.Nos.123 and 124 of 2008 for restoration of the SAs, are held unsustainable and they are accordingly set aside and the said applications stand dismissed. Consequently, the impugned orders passed in M.A.Nos.123 and 124 of 2008 restoring the SAs are also liable to be set aside and they are accordingly set aside and the said applications also stand dismissed.

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15. As it is stated that subsequent to the dismissal of SAs for default, the secured assets have been sold in public auction and third party auction purchaser has paid the sale consideration amount and sale certificate was also issued in his favour and registered with

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Sub-Registrar and possession of the property was also delivered to the auction purchaser, it is open to the respondents-borrowers to avail other remedies available under law to assail the subsequent events.

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16. In the result, the civil revision petitions are accordingly allowed. There shall be no order as to costs.

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____________________ G.V.SEETHAPATHY, J

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07^th July, 2011 Bss/Lrkm.

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[1] (2003) 3 SCC 524 [2] 2003(5)ALD 36 (SC) = AIR 2003 SC 2044 [3] (2006) 9 SCC 252 [4] (2011)2 SCC 782 [5] (2010)8 SCC 329

State Bank of India, Yellareddyguda, v. M. Ganga Raju

Case brief

What is this about?

What did the court decide?

State Bank of India, Yellareddyguda, v. M. Ganga Raju

Case brief

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What did the court decide?

What the court decided

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