IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 21-10-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.19000 OF 2008 1.R.Shankar 2.R.Nagarajan 3.R.Gunasekaran ... Petitioners -vs- 1.The South Indian Bank Ltd., Padappai Branch, Kancheepuram District. 2.The Chairperson, Debt Recovery Appellate Tribunal, Ethiraj Salai, Chennai. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari. For petitioners : Mr.N.G.R.Prasad, for Mr.S.Vijayakumar For respondent 1 :Mr.R.Balchander O R D E R V.DHANAPALAN,J. Petitioners have filed this Writ Petition, praying to quash the order of the second respondent, dated 24.01.2008, passed in I.A.No.1034 of 2007 in I.N.No.622 of 2007. 2. At the time of hearing of this case, learned counsel for the petitioners had requested the Court to settle the dues by way of One Time Settlement and, on putting the learned counsel for the first respondent Bank to notice, the said request was considered and offered by the Bank for a sum of Rs.36.00 lakhs as against the due of https://hcservices.ecourts.gov.in/hcservices/ Rs.56.00 lakhs. However, the petitioners failed to concede to the said offer and, instead, requested this Court to dispose of the matter on merits. 3. The following are the uncontroverted facts : 3.1. Petitioners, who are brothers, carried on business under the name and style M/s.Shankar Traders, dealing in general trade as well as meat and poultry, for which they availed a loan of Rs.1,90,000/- from the first respondent Bank on 15.03.1990, by furnishing security of the property. Thereafter, the petitioners failed to pay the amount. Hence, the first respondent Bank filed a suit in O.S.No.506 of 1995 on the file of Additional Sub-Court, Poonamallee, for recovery of Rs.5,28,893/- along with interest and costs. Pending the suit, the petitioners sold the mortgaged property without the concurrence and notice to the Bank or seeking permission from the Court to one Pushpalatha, who, in turn, created charge over the property in favour of State Bank of India, Guindy Branch, and availed credit facilities, by depositing the title deeds. As the said Pushpalatha also defaulted in payment of the amount, State Bank of India initiated proceedings against her in O.A.No.192 of 2002 on the file of Debt Recovery Tribunal-I, Chennai, for recovery of the amount. Since the petitioners could not pursue the matter though they entered appearance, the suit was decreed ex parte on 03.08.2000. 3.2. As the decretal amount exceeded Rs.10.00 lakhs and in view of the constitution of Debt Recovery Tribunal, the first respondent Bank filed O.A.No.19 of 2003 on the file of Debt Recovery Tribunal-I, Chennai, for issuance of Recovery Certificate under Section 31 (A) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Since no objections were filed, the said O.A.was allowed on 30.12.2004, pursuant to which, a Debt Recovery Certificate in D.R.C.No.173 of 2005 for a sum of Rs.33,33,276.67 was issued on 21.11.2005. On 21.07.2006, the property was attached by the Recovery Officer and notices were published on 20.10.2006. Thereafter, the Recovery Officer of Debt Recovery Tribunal brought the property for public auction on 23.11.2006 and, in the said auction, one Muralidharan of Trichy bid the property for Rs.64.50 lakhs and deposited a sum of Rs.16,12,500/-, as initial 25% bid amount. On 22.11.2006, Pushpalatha filed an application in I.A.No.207 of 2006 to implead herself in O.A.No.19 of 2003, which was dismissed on 23.11.2006. Aggrieved over the said order of dismissal, Pushpalatha filed an appeal in M.A.No.219 of 2006 before the Debt Recovery Appellate Tribunal, Chennai, on 28.11.2006. Pending appeal, an order of stay was also obtained by her from confirming the sale of the property and, after contest by the bank, the said appeal came to be dismissed on 09.10.2007. https://hcservices.ecourts.gov.in/hcservices/ 3.3. Subsequently, the petitioners filed an appeal vide I.N.No.622 of 2007 on the file of Debt Recovery Appellate Tribunal, Chennai, challenging the order dated 30.12.2004 made in O.A.No.19 of 2003 on the file of Debt Recovery Tribunal-I, Chennai. At the same time, the petitioners also filed I.A.No.1034 of 2007 in I.N.No.622 of 2007 to condone the delay of 932 days in filing the appeal. On a stiff opposition from the Bank, the application was dismissed by Debt Recovery Appellate Tribunal by an order dated 24.01.2008 and, consequently, the appeal was rejected. Challenging the said order of dismissal, the petitioners have filed this Writ Petition. 3.4. It is also not disputed that in the proceedings initiated by the subsequent purchaser, namely, Pushpalatha, to implead as a party in the O.A., the petitioners and the respondent bank had been arrayed as parties and after dismissal of the said proceedings by DRT, the subsequent purchaser filed an appeal before the Appellate Tribunal, which also suffered dismissal. 4. In the above factual backdrop of the case, learned counsel for the petitioners would contend that the petitioners could not follow up the matter as they were concentrating on the treatment to the wife of the third petitioner for acute cancer till 2006 and hence there was a delay of 932 days in filing the appeal. 5. Dispelling the above contention, learned counsel for the respondent Bank has argued that as the petitioners have borrowed the amount from the Bank and failed to pay the same and also participated in all the proceedings initiated by the Bank both before the Additional Sub-Court, Poonamallee, and the Debt Recovery Tribunal-I, Chennai, by no stretch of imagination, it can be said that sufficient cause has been shown for the extraordinary delay in filing the appeal. 6. Though the learned counsel for the petitioner has relied upon the decisions viz., (i) N.Balakrishnan v. M.Krishnamurthy, 1998 (II) CTC 533; (ii) Municipal Corporation, Gwalior v. Ramchandran (D) by Lrs.and others, 2002 (2) CTC 349; (iii) V.Amudha v. S.A.Arumugham and others, 1999 (III) MLJ 261; (iv) Arun Alexander Lakshman, Proprietor, M/s.Alraj Builders and another v. A.P.Vedavalli, 2007 (4) CTC 449 and (v) Ravi Enterprises v. Indian Bank, 2008 (1) CTC 785, to show that the condonation of delay is the matter of discretion of the Court and the length of delay is immaterial so long as the delay is properly explained, the said decisions will have no application to the facts of the present case, as the delay of 932 days is not properly explained. In addition, no proof of treatment to the wife of third petitioner was also filed, for a sympathetic consideration by https://hcservices.ecourts.gov.in/hcservices/ this Court. The said decisions were already brought to the notice and considered by the Debt Recovery Appellate Tribunal. 7. There was delay in filing the proceedings in the decisions cited by the learned counsel for the petitioners and the delay was condoned notwithstanding, in this case, none of the petitioners had ever evinced interest in prosecuting the case with proper attention. In other words, the petitioners, having participated in the proceedings before the Debt Recovery Tribunal, failed to act with due diligence in pursuing the matter. Even assuming that one or two of them had been prevented by family circumstances to file the appeal in time, the third petitioner should have acted diligently to file the appeal. Therefore, it has to be necessarily held that the undue delay of 932 days in filing the appeal has not been properly explained by the petitioners. 8. Even with regard to the contention of the learned counsel for the petitioner on the point of reduction of interest on the loan amount, the Debt Recovery Appellate Tribunal had harped upon the decision of the Supreme Court in State Bank of India v. Yasangi Venkateswara Rao, 1999 (2) Supreme Court Cases 375, and an unreported order of the Apex Court in S.L.P.No.7146 of 2000, dated 21.08.2002, in State Bank of India v. M/s.Sarathi Textiles & Others, to hold that since the respondent Bank claimed interest on the basis of the agreement and that since the question of rate of interest is the matter of contract between the parties, the petitioners cannot have any benefit towards the interest also. 9. No doubt, the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such a legal remedy for redressal of the legal injury so suffered. In case the parties resort to dilatory tactics without seeking the remedy in an appropriate time, the rules of limitation shall be looked into in the given facts and circumstances. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him, provided there is no dilatory tactic. 10. In the instant case, the laches on the part of the petitioners and the lethargic approach shown by them are a sufficient proof that they have not acted in a diligent manner to prosecute the matter. It only shows that there is a dilatory tactic with a motive to delay the process. Also, it is seen that during the pendency of the litigation, the subject property has been sold in order to defeat the very object of the legal process. In such a situation and when there is no https://hcservices.ecourts.gov.in/hcservices/ proper explanation and convincing reason, no sympathy can be shown to the petitioners either with regard to limitation or tactic of delay. All the above aspects had been properly looked into by the Debt Recovery Appellate Tribunal, while passing the order impugned. 11. Therefore, we do not find any infirmity in the order passed by the Debt Recovery Appellate Tribunal. As such, this Writ Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2008 is also dismissed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar dixit To The Debt Recovery Appellate Tribunal, Ethiraj Salai, Chennai- 8. +1 cc to Mr.S.Vijayakumar, Advocate, SR.No.58311 +1 cc to Mr.R.Balchander, Advocate, SR.No.58225 W.P.No.19000 OF 2008 MRD(CO) BK(3/11/2008) https://hcservices.ecourts.gov.in/hcservices/