IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO.33975 OF 2018 (GM-DRT) BETWEEN:
1. M/S LANVIN EXPORTS #15, 1ST PHASE, II MAIN WOC ROAD, RAJAJINAGAR BENGALURU-560 010.
REPRESENTED BY ITS PROP. MR. SAGEER AHAMED.
2. MR. SAGEER AHMED SON OF S.A.KHADER AGED ABOUT 53 YEARS #15, 1ST PHASE, II MAIN WOC ROAD, RAJAJINAGAR BENGALURU-560 010.
... PETITIONERS (BY SRI: LAKSHMAN MURTHY, ADVOCATE) AND:
1. THE AUTHORISED OFFICER SYNDICATE BANK YESHWANTHPUR BRANCH BENGALURU-560 022.
2. MRS. K.H.MUMTAZ BEGUM W/O T. ABDUL REHMAN #19, LUBBAY MASJID CROSS CIVIL STATION OPP: COMMERCIAL STREET BENGALURU-560 001.
... RESPONDENTS (BY SRI:K.RADESH PRABHU, ADVOCATE FOR C/R1, VIDE ORDER DATED: 23.10.2018 NOTICE TO R2 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE HON’BLE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI, DATED:20.07.2018 IN AIR(SA) 159 OF 2017 IN IA 487 OF 2017, ANNEXURE-A AND DIRECT THE 1ST RESPONDENT BANK TO HAND OVER THE TITLE DEEDS OF THE MORTGAGED PROPERTY TO THIS 2ND PETITIONER AND NOT TO SEEK ANY REPAYMENT FROM THIS PETITIONER AND ETC., ***** THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, RAVI MALIMATH J., PASSED THE FOLLOWING:
ORDER Aggrieved by the order dated 20.07.2018 passed in AIR (SA) No.159 of 2017 in IA No.487 of 2017 by the Debt Recovery Appellate Tribunal, Chennai, in dismissing the application for delay, the appellants therein have filed this petition.
2. Sri.Lakshman Murthy, the learned Counsel for the petitioners contend that the Appellate Tribunal committed an error in rejecting the application. That the time spent by the appellants in the earlier round of litigation before this Court has not been properly appreciated. That the time spent by the petitioners require to be taken into account to consider the delay while filing the appeal before the Appellate Tribunal. Hence, he pleads that the petition be allowed.
3. Sri.K.Radesh Prabhu, the learned Counsel for respondent No.1 disputes the same. He contends that the Appellate Tribunal did not commit any error in dismissing the application for delay. That even the pre-deposit has not been made. Therefore, the Tribunal has rightly passed the impugned order. Hence, no interference is called for. He places reliance on the decision in the case of Ms.BANI KAUR BEDI AND ANOTHER Vs. HDFC BANK LTD., BENGALURU reported in ILR 2013 KAR 5517 with regard to the condition of pre-deposit. He also places reliance on the judgment of the Hon’ble Supreme Court in the case of JASBIR SINGH Vs. STATE OF PUNJAB reported in (2006) 8 Supreme Court Cases 294.
4. Heard learned Counsels.
5. So far as the first judgment relied upon by the learned Counsel for respondent No.1 is concerned, there is no dispute with regard to the same. The pre-deposit requires to be made before the Appellate Tribunal to consider the appeal. However, that is not the point involved in this petition. Hence, we do not find that the said judgment is of any help to respondent No.1 in any manner.
6. So far as the second judgment relied upon by the learned Counsel for respondent No.1 is concerned, the facts are totally different. Therein, the learned Judge had visited the jail and passed the order to the effect that the Sessions Judge has to look into the application of the detenue who was in custody and to enlarge him on bail. Thereafter, the proceedings were taken up before the Hon’ble Supreme Court, which re-iterated the power of the Writ Court under Article 227 of the Constitution of India. We are of the view that the said judgment has no nexus with the facts of the case.
7. So far as the merits are concerned, what has been considered by the Appellate Court is a mere application, namely, IA.No.487 of 2017 for condonation of delay in filing the appeal. In considering the said application, the Appellate Tribunal was of the view that the time spent by the petitioners before the High Court cannot come to their aid since, they have deliberately chosen a wrong forum. Therefore, the appellants do not deserve any sympathetic consideration for want of due diligence.
8. We have considered the order dated 14.02.2017 passed by the learned Single Judge in the earlier writ petition, namely, Writ Petition No.34511 of 2009. The bank was represented by the very counsel appearing in the instant petition. Therein, the learned Single Judge at para Nos.7 and 8 held as under:
“7. Hence for the said reasons, I find that even in the present circumstance, the petitioners would have to be relegated to the appellate remedy. At this juncture, the submission of the learned Counsel for the petitioners that there would be delay in filing the appeal is also to be taken note. In that regard, it is to be indicated that the period that is spent before this Court in any event would be taken note by the DRAT when the petitioners file an appeal and seek condonation of delay by putting forth such reasons.
8. That apart, keeping in view the fact that this Court at the first instance had granted the interim order, the said benefit would continue to enure to the petitioners till the appeal is taken up for consideration by the DRAT. It is however subject to the condition that the petitioners would avail the remedy of appeal within a period of thirty one days from the date of receipt of a copy of this order?”
9. Rather than considering the directions issued by this Court, the Appellate Tribunal has passed an erroneous order. When the facts and material indicate that the petitioners herein had prosecuted the earlier writ petition in good faith, necessarily, the same should have been considered in an appropriate manner. But the Tribunal has not done so. Therefore, it is a ground for interference.
10. The reasons assigned by the writ petitioners seeking condonation of delay is well founded. The time spent in the earlier writ petition has to be appropriately considered. It is needless to state that the litigant will not gain by causing any delay. He having been relegated to file an appeal before the Appellate Tribunal, necessarily, the said period has to be considered. For the aforesaid reasons, we are of the view that the same constitutes sufficient cause, since the act of the petitioners were bonafide. Hence, we are of the view that the delay in approaching the Tribunal requires to be condoned.
11. However, so far as the issue pertaining to the pre-deposit is concerned, the same has not been considered by the Tribunal. It is for the Tribunal to consider the said issue. It is suffice to hold that the present petition is being entertained purely on the ground of delay in approaching the Tribunal and not on the other issues. The issue pertaining to the pre-deposit would have to be considered by the Tribunal.
12. Under these circumstances, the petition is allowed. The order dated 20.07.2018 passed in AIR (SA) No.159 of 2017 in IA No.487 of 2017 by the Debt Recovery Appellate Tribunal, Chennai, is set aside. IA.No.487 of 2017 seeking condonation of delay in filing the appeal before the Appellate Tribunal is allowed. The delay is condoned. The Appellate Tribunal to consider the matter with regard to pre-deposit and other issues and thereafter to hear the same on merits.
The parties shall appear before the Tribunal on 02.12.2019 without any further notice.
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JUDGE JUDGE *bgn/-