134 days Delay in filing Appeal is not Condonable as per SARFAESI Act even without Cogent Reason : DRAT Dismisses appeal of PNB Housing Finance

PNB Housing Finance Ltd. , the appellant submitted that the order impugned in the case was passed by the Tribunal below on 20.09.2019 and copy of the same was received by the appellant on 21.09.2019 and thereafter, the same was sent to the concerned branch through registered post and from there to the Law Department for its scrutiny.

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It was further contended that thereafter it was decided that against the said order, the appeal may be filed before this Appellate Tribunal, therefore, the same was sent to the higher authorities for approval to file the same. It was further contended that consequent upon it, one Shri Ritesh Geol, Advocate was assigned for filing the appeal, but in spite of giving reminders through email dated 04.11.2019, 06.11.2019 and 25.11.2019, he has not filed the same, therefore, the said case was subsequently assigned to one Shri R. K. Shukla, Advocate on 12.12.2019 for filing the appeal and ultimately Shri Shukla drafted and sent the same to the Bank for approval on 15.12.2019.

It was also contended that the draft appeal was vetted by the law department and one Shri Vijay Bahadur Singh Thakur was deputed to sign and verify the same and he came to Allahabad on 03.03.2020 for the said purpose. It was thus prayed that considering these facts, this Tribunal may condone the delay occurred in filing the present.

The counsel further submitted that in the meantime, the borrower had approached the Bank on 30.09.2019 and 15.10.2019 for settlement of the account and accordingly, the settlement proposal was sent for approval, but the same was turned down by the Bank and it was also one of the reasons for the delay occurred in filing the present appeal.

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Counsel for the respondents-borrowers submitted that the appellant itself has admitted in para 2 of the application for condonation of delay that the copy of the order impugned was received by the appellant on 21.09.2019, therefore, the appeal was liable to be filed till 21.10.2019, but the present appeal has been filed on 04.03.2020 without any cogent reason. The counsel further submitted that since the appellants were well conversant with the provisions of the Act and Rule made thereunder, therefore, they cannot take the shelter of conduct of the counsel for their own mistakes, which caused the delay in filing the present appeal.

It was further contended that the appeal was prepared and notarized on 06.01.2020, as mentioned at page no. 6 of the application for condonation of delay, but in para 6 of the said application, it is stated that the officer, who was deputed to sign and verify the appeal, came to Allahabad on 03.03.2020, but the appeal was signed and notarized on 06.01.2020 at Raipur, hence in order to cover up the limitation, the appellant-F.I. has given false averment, hence it was prayed that the application for condonation of delay may be rejected.

It was evident the impugned order was passed on 20.09.2019 and the same was received by the appellant on 21.09.2019 and the present appeal was filed on 04.03.2020, thus the present appeal was filed beyond the period of limitation of 134 days excluding the period of 30 days as provided under section 18 of the SARFAESI Act, 2002 for filing the appeal.

The contention of the appellant that the person namely Vijay Bahadur Singh Thakur, who was authorized to sign and verify the appeal, came to Allahabad on 03.03.2020 and signed the memo of appeal is incorrect, as from the page no. 43 of the memo of appeal, which is verification clause of the appeal, clearly shows that the said appeal was swear by the Advocate Notary on 06.01.2020 at Raipur, meaning thereby the appeal was signed and swear on 06.01.2020, then there was no question of coming of Mr. Singh to Allahabad for signing the appeal and affidavit.

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Justice R.D. Khare , Chairperson observed that “If the limitation is counted from the date of swearing the memo of appeal i.e. 06.01.2020, even then the present appeal is found to be barred by 56 days. The length of delay is not material if there is cogent or sufficient reason for the same. The said period i.e. from 06.01.2020 to 04.03.2020, on which date, the present appeal was filed, has not been explained, as to why the present appeal was not filed immediately after 06.01.2020, as day to day delay is required to be explained for condoning the same in view of Section 5 of the Limitation Act.”

The tribunal rejected the application for condonation of delay.

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