Indian Bank vs Manilal Govindji Khona

The brief facts of the case are stated hereunder in a nutshell :-

Thereafter, a series of applications and proceedings were initiated by the respondent before the DRT, DRAT and different High Courts and Civil Courts seeking various reliefs against the appellant-Bank. After the period of 7 years of the issuance of the recovery certificate in favour of the appellant-Bank, the respondent moved a Misc. application before the Recovery Officer to set aside the sale of the mortgaged property which was dismissed on 2.12.2011 by DRT-II, Mumbai. The respondent moved an application for rectification of recovery certificate dated 29.11.2004 along with an application for condonation of delay in filing the Misc. application for rectification of recovery certificate dated 29.11.2004 and an application seeking interim orders in respect of the property which was sold in the public auction by the Court Receiver. The DRT dismissed the interim application by its order dated 30.01.2012. The DRT-II further rejected the condonation of delay application filed by the respondent by its order dated 22.02.2012. The respondent aggrieved by the above said order filed an appeal before the DRAT and the same was dismissed vide order dated 10.04.2012. The respondent further chose to challenge the order of DRAT before the High Court in W.P.No.3652 of 2012 urging various grounds and prayed to quash the same and pass appropriate order in the light of the facts and circumstances of the case. On 29.8.2012, the High Court after hearing the learned counsel for the parties has allowed the writ petition by setting aside the orders of the DRT and the DRAT and condoned the delay in filing Misc. Application (L) No. 34 of 2012 filed by the respondent and restored the Misc. application filed by him before the DRT-II, Mumbai to its file and directed it to decide the same on its own merits in accordance with law afresh in the light of the law declared by this Court and the High Court on the subject matter.

The provisions of the Limitation Act are applicable to the proceedings of the DRT in view of Section 24 of the Act of 1993 and therefore, the provisions of Section 5 of the Limitation Act are applicable to the provisions of the said Act. The same has not been examined and considered by the DRT-II and the DRAT at the time of passing the impugned orders in the writ petitions. Therefore, the High Court has rightly exercised its discretionary power keeping in view the rights of the respondent upon the immovable property involved in this case and it has condoned the delay in filing Misc. Application and accordingly the orders of the DRT-II and the DRAT impugned in the writ petition are set aside by allowing the same.

Further, we make it clear that we have recorded our reasons in this judgment on the basis of the rival legal contentions urged on behalf of the parties. Nonetheless, the DRT-II is required to examine the Miscellaneous application of the respondent independently on its own merit and in accordance with law without being influenced by our observations made in this judgment.

For the above stated reasons, the impugned judgment and order passed by the High Court by setting aside the orders of DRT-II and DRAT and further remanding the matter to DRT-II for its re-consideration of the Miscellaneous application, is in accordance with the provisions of the Act and the law laid down by this Court in this regard and the same cannot be found fault with by this Court. Hence, there is no merit in this appeal, and the same is liable to be dismissed. Accordingly, the appeal is dismissed with costs of Rs.1,00,000/- payable to the respondent.

The parties are directed to maintain status quo of the property involved in these proceedings which exists as on today till the disposal of the Miscellaneous Application by the DRT-II.

.....................................................................J. [V. GOPALA GOWDA] .....................................................................J. [C. NAGAPPAN] New Delhi, February 3, 2015 ITEM NO.1A-For Judgment COURT NO.12 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s)........../2015 arising from SLP(C)No 12513/2013 INDIAN BANK Appellant(s) VERSUS MANILAL GOVINDJI KHONA Respondent(s) Date : 03/02/2015 This petition was called on for pronouncement of JUDGMENT today.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.

Leave granted.

The appeal is dismissed in terms of the signed Non-reportable Judgment.

(Signed Non-Reportable judgment is placed on the file)