1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4775 OF 2009 Vijay Shah : Petitioner versus Central Bank of India and ors. : Respondents. Mr.Devrat Singh a/w Mr. Mahendra Agavekar for the Petitioner. Mr.Mayur Khandeparkar a/w Smt. Swapna Rachure i/by M/s. T R Tripathi for the Respondent No.1 CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 14 th June 2010 P.C. 1 The above Petition filed under Article 226 of the Constitution of India takes exception to the order dated 21.04.2009 passed by the learned Member, Debt Recovery Appellate Tribunal, Mumbai (DRAT for short). By the said order the Misc. Application No.919 of 2007 for condonation of 222 days’ delay in filing the application for restoration of the Appeal came to be rejected. The Petitioner in the instant Petition was the guarantor to the loan obtained by the Respondent No.2 firm. It is the case of the Respondent No.1 herein that the Petitioner was a partner at the relevant time which averment is made in the affidavit in reply which is at Page 71 of the compilation. 2 The original application which arose out of a suit which had been originally filed in this Court came to be allowed by the 2 Judgment and Order dated 15th September 2005 and the decree for the sum of Rs.Fourteen lakhs plus interest at the rate of 15% pa from the date of filing of the suit was passed in so far as the present Petitioner is concerned. As on 9th June 2009 the decretal amount came to Rs.86,87,371/-. It appears that the Petitioner against the said decree filed an Appeal bearing No.64 of 2006. The said Appeal came up before the learned Registrar, DRAT on 6th July 2006 and thereafter adjourned to 16th August 2006. Since none appeared on 16th August on behalf of the Petitioner, it came to be adjourned to 17th August 2006 on which day since nobody appeared for the Petitioner, the said Appeal was kept directly before the Chair Person of the DRAT on 20th November 2006. On the said day, the Appeal was called out twice, however, since none appeared on behalf of the Appellant/Petitioner, the said Appeal came to be dismissed for default. The Petitioner, thereafter, filed Misc. Application No.761 of 2007 for restoration of the said Appeal. The said restoration application being belated by 222 days, the Petitioner filed an application being Misc.Application 919 of 2007 for condonation of delay. The said condonation of delay was inter- alia sought on two grounds viz. the dismissal of the Appeal by the learned Presiding Officer on 20th November 2006 was not communicated to the Petitioner, as also on the ground of illness of the Petitioner in respect of which affidavit was filed by the Petitioner inter alia stating that he was suffering from various 3 ailments such as diabetes, Mellitus, High Blood Pressure and Heart problems. Both the grounds were considered by the learned Presiding Officer of the DRAT and the said grounds did not find favour with him. In so far as ground of non-communication of the dismissal of the Appeal is concerned, except stating the fact that the erstwhile advocate of the Petitioner Shri U S Samudrala was away in USA, the said case of the Petitioner has not been substantiated in any manner. The Tribunal has also observed that since one Ramprakash Pandey who was the other advocate engaged by the Petitioner in the tribunal had attended the said matter on 19th May 2006 and 11th September 2007, and whose presence was noted by the learned Registrar of the Tribunal, and hence there was no question of Petitioner being unaware of the status of the said Appeal. 3 In so far as illness of the Petitioner is concerned, the tribunal has recorded a finding that since no details of illness or any record of hospitalisation of the Petitioner for these ailments were produced, the said ground could not be accepted and the tribunal was of the view that in the said circumstance no sufficient cause for condonation of delay of 222 days has been shown by the Petitioner. The Tribunal therefore dismissed the said application by imposing costs of Rs.1000/- on the Petitioner. 4 4 It would have to be noted that the proceedings which were originally filed in this Court in the year 1990 came to be transferred to the DRT after its establishment and in which proceedings a decree came to be passed on 15th September 2005. All along the Petitioner has been appearing in the said proceedings and has been represented by the advocate. 5 The facts as disclosed above, in our view, show the conduct of the Petitioner in prosecuting the Appeal. Considering the fact that the Petitioner is facing a decree to the tune of Rs.Eight Six lakhs and odd, it cannot be said that the delay is only on account of indolence or negligence, in our view the same is actuated by reason of the fact that the Petitioner wants to somehow stall the recovery of the decretal amount on some pretext or the other. It would be pertinent to note that execution of the decree, by auctioning the mortgaged property which was a flat, was sought to be delayed by the Petitioner by putting up his wife who had filed an application stating that the flat could not be put to sale, as she has 50% share in it. The wife of the Petitioner had filed an intervention application on the said ground after the said flat was attached by the recovery officer. The said application came to be withdrawn later on. The wife of the Petitioner thereafter filed an application for modification of the original decree on the said basis, the said application was dismissed by the Presiding Officer, DRT by recording a finding that 5 the wife of the Petitioner had not led cogent evidence about her ownership in respect of the said flat. The Appeal filed by the Petitioner before the DRAT also came to be dismissed, against which a Writ Petition No.4404 of 2009 came to be filed in this Court which was withdrawn by the wife of the Petitioner. In the mean time the flat in question came to be auctioned in execution of the recovery certificate. 6 It would also be pertinent to note that the above petition has appeared from time to time before this Court. On an earlier occasion, the Petitioner was given an opportunity by permitting him to file an affidavit of his erstwhile advocate in DRAT stating that the Petitioner was not communicated the order passed by the learned Presiding Officer, DRAT, dismissing the Appeal for default on 20th November 2006. The affidavit, which has been filed pursuant to the said liberty granted, only states that the said advocate was out of India between 25th May 2007 to 5th July 2007 and does not state that there was any mis-communication or non-communication to the Petitioner. Hence even in the present Petition the Petitioner’s case does not get any support from the affidavit filed by his erstwhile advocate who represented him before the DRAT. 7 In the course of hearing before this Court, a suggestion was also given to the Petitioner that the Petitioner can show his 6 bonafides by depositing an amount of Rs.Ten lakhs in this Court out of the total outstanding of Rs.Thirty Five lakhs as of date so that the delay in filing the Application for restoration could be condoned, and the Petitioner’s Appeal could be heard on merits. However, the said offer has not been accepted by the Petitioner. We are of the view that if the said course of action is adopted, the Appeal could be disposed of in a particular time frame without parties having to go through the rigmarole of an application of waiver of pre-deposit being filed and heard which would give rise to further proceedings thereby resulting in delay in disposal of the Appeal. Thereafter as and by way of last indulgence the Petitioner was asked to show his bonafides by depositing a sum of Rs.Five lakhs, the said offer has also not been accepted by the Petitioner. It therefore appears that the Petitioner is only interested in protracting the proceedings one way or the other. 8 It was sought to be contended on behalf of the Petitioner that since the Bank had already auctioned the mortgaged property being a flat at Sion and recovered an amount of Rs.50.35 lakhs and since the Bank has levied attachment on two other properties i.e. one flat consisting of one bedroom and hall at Sion and other flat consisting of one room kitchen also at Sion, there is no question of the Petitioner making pre-deposit for hearing of the Appeal and at the highest the Petitioner is ready and willing to deposit a sum of 7 Rs.Two lakhs pending the Appeal. In our view, the Petitioner cannot derive millege out of the fact that one of the properties has been auctioned and an amount of Rs.Fifty lakhs and odd has been recovered, as also from the fact that two other properties have been attached. In our view the said fact in our view speaks volumes for the conduct of the Petitioner inasmuch as the Bank had to resort to auction and attach the property of the Petitioner for recovering the said decretal amount. Be that as it may, the tribunal, in our view, has for cogent reasons dismissed the application for condonation of delay. Though, it is well settled that in matters of condonation of delay an highly technical and pedantic approached should be eschewed, in our view, the facts of the instant case are such that lack of bonafides are writ large at every stage of the proceedings before the DRAT. Grant of an application for condonation of delay, as is well settled is a matter of discretion of the court which discretion has to be exercised on well settled principles. In the instant case, apart from the fact that the reasons put forth by the Petitioner have not found to be acceptable by the DRAT in our view the lack of bonafides on the part of the Petitioner also cannot be overlooked. The discretion exercised by the DRAT does not call for any interference. In that view of the matter, the impugned order passed by the learned Presiding Officer of the DRAT does not call for any interference in our writ jurisdiction under Article 226 of the Constitution of India. The Petition is, 8 accordingly dismissed. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]