Court No. - 42
Case :- WRIT - C No. - 23261 of 2021 Petitioner :- Arvind Kumar Respondent :- Punjab National Bank And 4 Others Counsel for Petitioner :- Shobhit Saxena,Kirti Kumar Nirkhi Counsel for Respondent :- Dharmendra Vaish
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as Sri Dharmendra Vaish, learned counsel for the respondent no. 3-Bank and perused the record.
Present petition has been filed challenging the impugned order dated 5.8.2021 passed by the Presiding Officer, Debt Recovery Tribunal, Lucknow by which the Presiding Officer dismissed the Securitization Application No. 319 of 2019 on the ground of limitation.
Apart from various other submissions made on the merits of the claim, by drawing attention to the various documents including the first information report lodged by the Bank itself, one of the main submissions of learned counsel for the petitioner is that by the impugned order the Securitization Application No. 319 was incorrectly dismissed on the ground that no application for condonation of delay was filed and in any case delay has not been satisfactorily explained. By drawing attention to the application, it was submitted that application clearly indicates that the application under Section 5 of the Limitation Act was filed and it was specifically mentioned that the applicant was never served a notice on the address given. The sole notice was affixed on his property as mentioned in the application. It has been categorically explained that the delay in challenge was not admitted and due to unavoidable circumstances as have been explained in various paragraphs of the application supported by an affidavit a prayer for condonation of delay was specifically mentioned in the prayer clause. It is submitted that it does not lie in the mouth of the bank that applicant has not filed any application for condonation of delay and there was no prayer with regard to condonation of delay. He further submits that the observation that the applicant has not brought on record any material in support of his argument, is totally misconceived, inasmuch as no objection was filed by the bank to the aforesaid application supported by an affidavit and in the first information report lodged by the Bank itself, the Bank has asserted that the title of the property was in dispute and bank has come to know about the same on the matter being agitated by the petitioner himself who claims ownership of the property.
Learned counsel for the petitioner has placed reliance on an order of this Court dated 9.8.2021 passed in Writ-C No. 16399 of 2021 (Smt. Shakeela Begum vs. State of UP and 4 others) to contend that when no opportunity of hearing was granted to the petitioner, the order is liable to be set aside. He further submits that it is a case of fraud as clear from the various documents and submitted that it is clear that the amount of loan taken by the petitioner was settled by him long back. Submission, therefore, is that it is a case of fraud.
Per contra, learned counsel for the respondent-Bank has supported the impugned order, however, could not dispute the facts insofar limitation factor is asserted by the learned counsel for the petitioner.
I have considered the rival submissions and perused the record.
I find that a contest raised was by the Bank only and as such, I proceed to consider the arguments advanced by the learned counsel for the parties present.
I find force in the arguments of the learned counsel for the petitioner that application and prayer for condonation of delay was available on record and in absence of any counter affidavit to the assertion made in the application supported by an affidavit, the tribunal has committed mistake in rejecting the application for condonation of delay.
In such view of the matter, this Court is of the opinion that the delay condonation application in filing the Securitization Application No. 319 of 2019 is liable to be re-considered on its own merit by the Debts Recovery Tribunal, Lucknow.
Accordingly, present petition stands allowed. The impugned order dated 5.8.2021 passed by the Presiding Officer, Debts Recovery Tribunal, Lucknow is set aside. The matter is remanded to the respondent no. 5- Presiding Officer, Debts Recovery Tribunal, Luknow UP to consider the application afresh. The Bank will also to be given opportunity of hearing to file written objection, if so desired. On remand, respondent no. 5 shall consider the application on its own merit strictly, in accordance with law, preferably within a period of two months from the date of production of self-attested copy of this order.
It is made clear that this Court has not considered the merits of the claim of the petitioner on merits and the Tribunal shall not be influenced by any of the observations made in this order.
The petitioner is at liberty to file a Stay Application, which may be considered by the Tribunal on its own merit, in accordance with law.
There shall be no order as to costs.
Order Date :- 20.9.2021 Abhishek