IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 2ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.2263 OF 2017 (GM-DRT) BETWEEN:
M SURESH AGED 53 YEARS SON OF LATE R. MUNIYAPPA PROP: M/S PUSHPA FLORITECH NO.193/11, 1ST MAIN ROAD BUNDEMUTTA ROAD BEHIND SATELLITE TOWN BENGALURU -560 060.
... APPELLANT (BY SRI.MUNIRAJA M, ADVOCATE FOR SRI RAJENDRA M A, ADVOCATE) AND:
1. THE MANAGER CANARA BANK M-BLOCK, UNITY BUILDING J.C.ROAD BENGALURU -560 002.
2. THE AUTHORISED OFFICER AND THE CHIEF MANAGER CANARA BANK HI-TECH AGRICULTURE FINANCE BRANCH M-BLOCK, UNITY BUILDING J.C.ROAD, BENGALURU.
3. SMT. MANJULA MAJOR, WIFE OF SRI SHAMANNA RESIDING AT NO 3, 14TH CROSS WILSON GARDEN BENGALURU – 560 030 ... RESPONDENTS THIS APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.46438/2016 DATED 26/08/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 26.08.2016 passed by the learned Single Judge in W.P. No.46438 of 2016, by which the petition was disposed off with an observation to avail the remedy of appeal, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 31.03.2016 passed in I.R.No.1645 of 2015 by the Debt Recovery Tribunal (for short ‘the DRT’) and to re-open O.A.No.115 of 2010. The petitioner - Proprietor of M/s Pushpa Floritech, a proprietory concern, borrowed loan from the respondent – Bank and mortgaged the schedule property as security to the loan, in addition to mortgaging the agricultural property. As the petitioner defaulted in repayment of the loan, the respondent – Bank initiated recovery action and issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act). On 23.09.2009 possession notice dated 11.12.2009 was also issued. The Bank had claimed a total sum of Rs.2,07,80,329/- along with 15 % interest. The petitioner challenged the possession notice by filing S.A.No.86 of 2010 which came to be dismissed. Subsequently sale notice was issued which was also challenged by filing an application under Section 17 of the SARFAESI Act in S.A.No.176 of 2012, which came to be dismissed on 11.05.2012. In the meanwhile, the Bank also filed O.A.No.115 of 2010 against the petitioner. The petitioner contested the O.A. by filing the written statement, which came to be allowed by order dated 26.09.2012. The petitioner had filed writ petition No.18908 of 2012 challenging the order passed in S.A.No.176 of 2012. The said writ petition came to be dismissed as withdrawn on 03.12.2013. The petitioner filed I.R.No.1645 of 2015 to set aside the order dated 26.09.2012 passed in O.A.No.115 of 2010. Along with the I.R. the petitioner had also filed I.A.No.2024 of 2015 seeking condonation of delay of 923 days in filing the I.R. The petitioner has stated in his application for condonation of delay that he was under depression and was unable to take any decision, hence, there was delay of 923 days. The tribunal held that the appellant has failed to explain the inordinate delay satisfactorily and observed that there is no bona fide in the cause stated by the appellant and rejected I.A.No.2024 of 2015 for condonation of delay and consequently dismissed I.R.No.1645 of 2015. Challenging the said order the instant writ petition was filed contending that the DRT without appreciating the facts and question of law refused to allow the application for condonation of delay. It is also contended that the documents executed are not in accordance with law and the respondent – Bank on several occasions reversed the entries. The learned Single Judge rejected the writ petition holding that the DRT is justified in not condoning the delay and further held that if law permits, the petitioner could avail the remedy of appeal. Aggrieved by the said order the petitioner is in appeal.
3. Heard the learned counsel for the appellant and perused the appeal papers.
4. Learned counsel for the appellant submits that the learned Single Judge committed an error in rejecting the writ petition without examining as to whether the petitioner had made out a case for condonation of delay and further the learned Single Judge failed to go into the merits of the case. It is stated that the procedure followed by the DRT is wholly illegal and the appellant who is an illiterate was not aware of the procedures. The respondent –Bank inspite of seeking information under RTI has failed to furnish information. Hence prays for allowing the appeal.
5. Having heard the Learned counsel for the appellant and having perused the appeal papers we are of the view, that the appellant has not made out any ground to entertain the instant appeal. It is an admitted fact that the petitioner borrowed loan from the respondent – Bank and defaulted in re-payment of the loan. The respondent – Bank initiated recovery action. The Bank filed O.A.No.115 of 2010 before the DRT in which the petitioner appeared and filed his written statement and contested the application. The O.A. came to be allowed on 26.09.2012.
The petitioner had filed AOR No.08 of 2015 challenging the order passed by the recovery officer, which also came to be dismissed on 28.03.2016. In the year 2015 the petitioner filed I.R. No.1645 of 2015 seeking to set aside the order dated 26.09.2012 passed in OA.No.115 of 2010. Along with the application the petitioner had filed I.A.No.2024 of 2015 to condone the delay of 923 days in filing the I.R. The reasons assigned for condonation of delay was that due to heavy loss and mental agony the applicant was in deep depression and imbalance to judge as to what is correct and wrong and it was difficult to come to a conclusion whether to prefer any appeal or not. The DRT rightly rejected the application for condonation of delay as there is no bonafide in the reasons assigned by the petitioner and the same would not constitute sufficient cause for condoning the delay in the facts and circumstances of the case. The petitioner is before the DRT since 2010 in one or the other proceedings. The petitioner had filed S.A.No.86 of 2012 challenging the possession notice dated 11.12.2009, S.A.No.176 of 2012 challenging the sale notice dated 31.01.2012, writ petition No.18908 of 2012 before this Court , I.R.No.1475 of 2015 before the DRT and AOR No.08 of 2015 before the DRT Hence, in view of these proceedings the reason assigned by the petitioner that he was not in a position to take any decision in view of mental imbalance cannot be accepted. The Tribunal has rightly rejected I.A.No.2024 of 2015 filed to condone the delay of 923 days. The learned Single Judge also by his reasoned order had rightly dismissed the writ petition. Moreover, it is to be noted that the petitioner has an alternate remedy of appeal against the order passed by the Tribunal under Section 17 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993. In view of the alternative remedy available under the statute, the writ petition under Article 226 of the Constitution of India challenging the order passed by the DRT would not be maintainable. The order of the learned Single Judge is neither perverse nor erroneous. No ground is made out for interference. Accordingly, the appeal is dismissed.
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JUDGE JUDGE NG* CT:bms