1 HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2654 OF 2008 Nikhil Jaisingh Merchant and Another ... Petitioners V/s Central Bank of India and 4 Ors. ... Respondents Mr. V.R. Dhond, i/b M/s Prakash& Co. for the petitioners. Mr. V.V. Kanade i/b T.N. Tripathi & Co. for the respondent No.1. CORAM: J.N. PATEL, A.A. SAYED, JJ. DATE : 16TH MARCH, 2009 P.C. 1 Heard learned counsel for the parties. 2 This petition is directed against the order dated 28th July, 2008 passed by the DRAT, by which order, the DRAT has allowed the appeal of the Respondent Bank and set aside the order of Recovery Officer, DRT. The appeal was filed against the order dated 12th January, 2007 passed by Recovery Officer, DRT, rejecting the Application filed by the Respondent Bank for condonation of the delay of 60 days in paying deficit stamp duty on the Guarantee Deed as per directions in decree dated 21.04.2004 and for issuance of Recovery Certificate. 3 The Respondent-Bank had filed Original Application against the petitioners (original defendant Nos. 5 and 6) for recovery of debts. The decree was passed on 21.04.2004 against the original defendants including 2 the petitioners herein. Insofar as the petitioners are concerned, the decree was passed on the condition that the Respondent-Bank would pay the deficit stamp duty on the deed of guarantee which was executed by the petitioners (and original Defendant No.4) within a period of four weeks from the date of the order. 4 There was delay of 60 days in the payment of stamp duty and the duly stamped deed of guarantee was submitted only on 13.06.2006 i.e. after a period of more than two years and therefore, the Application came to be filed by Respondent-Bank before Recovery Officer, DRT for condonation of delay, essentially resting the blame on their Advocate. The Application was rejected by the Recovery Officer, DRT. Upon an Appeal being filed by Respondent-Bank the DRAT by the impugned order, set aside the order of the Recovery Officer DRT and condoned the delay in the payment of deficit stamp duty on the deed of guarantee on payment of costs of Rs.5,000/- to the petitioners and remanded the matter to Recovery Officer, DRT, for issuance of Recovery Certificate against the petitioners (and original defendant No.4) for consideration in accordance with the law. It is this order which is impugned in this petition. 5 The learned counsel for the petitioner submitted that it was not open to the DRAT to condone the delay as the Tribunal had no power vested in it to condone the delay for the compliance of the condition mentioned in the decree for payment of stamp duty and therefore, the decree has lapsed after the expiry of four weeks from the date of the decree dated 21.04.2004. He submitted that the Tribunal had become functus officio. The learned Counsel has pointed out section 22 of the Recovery of Debts Due to Banks 3 and Financial Institutions Act, 1993 as also section 148 of the Code of Civil Procedure, 1908, to submit that at best, the period granted by DRT could be enlarged only for a period of 30 days and not more. He further submitted that in any event no proper explanation was given for condoning the delay and therefore, the impugned order be set aside and order of Recovery Officer, DRT be restored. 6 The learned counsel for the respondents supported the impugned order. 7 We have heard the learned counsel for the parties. 8 We are unable to agree to this contentions of the learned counsel for the petitioners. Section 19 (25) of the Recovery of Debts Due to Banks and Financial Institution Act,1993 interalia permits the Tribunal to make such orders “as may be necessary or expedient to give effect to its orders' or 'to secure the ends of justice'. Besides, the Apex Court in the case of Salem Advocate Bar Association Vs. UOI, AIR 2005 SCC 3353, has laid down that the period of 30 days prescribed under section 148 of the Code is not mandatory and can be extended if the act could not be performed for reasons beyond the control of the party. In any event, we find that the contention regarding the “powers” of the Tribunal to condone the delay has not been raised either before the Recovery Officer, DRT or DRAT. Pertinently, the decree dated 21.04.2004 has not been challenged by the petitioners. 9 We find that DRAT has correctly dealt with a matter and after 4 perusing the material on record including the letters addressed by the Petitioners-Bank to their Advocate, has observed in the impugned order as under: “From the record it seems that the bank had engaged another advocate who took steps to submit documents to the stamp authorities and collected the same on 26/7/2004 and thereafter within a period of two days handed over to the solicitors on 28/7/2004 for taking further necessary steps. After 28/7/2004 the bank had addressed three letters to it's solicitors who did not respond. From the tenor of the letters it is evident that the bank was not even informed about the progress of the matter whether the solicitors had filed the document in the DRT or not. After the document was handed over to the appellant bank by the solicitors on 13/6/2006 the document was filed in the DRT next day on 14/6/2006. From the letter dated13/6/2006 addressed to the appellant bank by the solicitors it appears that the document was withheld for non payment of professional fees. The mistake which the appellant bank has committed is to trust it's own advocate for which the bank should not be made to suffer.” We have noted that the DRAT, has by the impugned order, while condoning the delay, has also awarded appropriate costs. 10 In the circumstances, we do not find any error, infirmity or illegality in the impugned order to warrant any interference at our hands in exercise of writ jurisdiction of this Court. 5 11 Consequently, the Writ Petition is dismissed in limine. Sd/- [J.N. PATEL, J.] Sd/- [A.A. SAYED, J.]