Allahabad High Court
M/S On Kar Nath,Registered Office ... vs Learned Debts Recovery ... on 28 August, 2023
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:57336
Court No. - 6
Case :- WRIT - C No. - 7348 of 2023
Petitioner :- M/S On Kar Nath,Registered Office At Bahraich Thru. Its Proprietor Onkar Nath Awasthi And Another
Respondent :- Learned Debts Recovery Tribunal,Lko. Thru. Its Registrar And 2 Others
Counsel for Petitioner :- Aahuti Agarwal,Abhishek Khare
Counsel for Respondent :- C.S.C.,Prashant Kumar Srivastava
Hon'ble Rajnish Kumar,J.
1. Heard, Shri Abhishek Khare, learned counsel for the petitioners and Shri Prashant Kumar Srivastava, learned counsel for opposite party no.2. Learned Additional Chief Standing Counsel is present for opposite party no.3. Opposite party no.1 is the court concerned.
2. A preliminary objection has been raised by learned counsel for opposite party no.2 on the ground of availability of alternative and statutory remedy of appeal to the petitioners against the impugned orders under Section 18 as well as Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 respectively and also that this petition is highly barred by delay and laches.
3. In regard to objection regarding availability of statutory and alternative remedy, learned counsel for the petitioner submits that in exceptional circumstances if only law point is involved the petition can be entertained in view of judgment of the Hon'ble Supreme Court in the case of M/s.Godrej Sara Lee Ltd. Versus The Excise and Taxation Officer-cum-Assessing Authority and others; 2023 Live Law (SC) 70. In regard to delay he submits that the same has been explained sufficiently in paragraphs 29 to 32 of the petition.
4. Having considered the submissions of learned counsel for the parties, I have perused the records.
5. It is settled proposition of law that the alternative remedy is not a bar in certain circumstances. In the case ofM/s.Godrej Sara Lee Ltd. Versus The Excise and Taxation Officer-cum-Assessing Authority and others (Supra), the Hon'ble Supreme Court has held that if the controversy is purely legal one and does not involve disputed questions of fact, but only question of law then the petition should be decided by the High Court instead of dismissing the petition on the ground of alternative remedy being available, therefore even if this petition may be entertainable, but the petition has been filed with a great delay without explaining the delay and laches sufficiently.
6. The petition has been filed challenging the order dated 12.04.2022 passed in S.A. No.242 of 2011 by the Debts Recovery Tribunal, Lucknow and the order dated 26.08.2022 passed in Case No.799 of 2022 by the Additional District Magistrate, Finance and Revenue, Bahraich. There is no dispute that the petitioners have an alternative remedy against both the impugned orders. So far as the explanation for the delay and laches is concerned, the same is given by the petitioners in paragraphs 29 to 32 of the petition, which are extracted here-in-below:-
"29. That the petitioner got the knowledge of the ex-parte order dated 26.08.2022 on 01.07.2023 when the respondent bank alongwith its recovery agent approached the petitioner for vacation of the property in question.
30. That thereafter the petitioner being a farmer/labourer contacted his counsel and informed about the order dated 26.08.2022 passed by the respondent no.3.
31. that the petitioners for the very first time got the knowledge that his securitization application was dismissed on the ground of delay on 12.04.2022 on 18.07.2022.
32. That thereafter petitioner applied for certified copy of the file from the Learned Debts Recovery Tribunal and from the office of the respondent no.3 for challenging the same before this Hon'ble Court."
7. The order dated 12.04.2022 was passed after hearing learned counsel for the parties. Arguments were heard on 07.03.2022 and judgment was pronounced on 12.04.2022. Therefore it cannot be said that the orders may not have been in the knowledge of the petitioners being the farmer/labourer because this petition has been filed on behalf of M/s. On Kar Nath. If the petitioners did not try to know about the proceedings for about 11 months because according to the petitioners, they came to know about the order on 18.07.2022 then such a negligent litigant is not entitled for any benefit of his negligence in approaching the court that too ignoring the statutory and alternative remedy.
8. The petitioners have taken a ground that they came to know about the exparte order dated 26.08.2022 on 01.07.2023, whereas the notice of the order dated 26.08.2022 was sent to the petitioners but they had not responded. The reason for non response to the notice has also not been given.
9. The Hon'ble Supreme Court, in the case of Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai; (2012) 5 SCC 157, has held that if the explanation given by the petitioner is found to be concocted or he is thoroughly negligent in prosecuting his case, then it would be a legitimate exercise of discretion not to condone the delay. Relevant paragraphs 24 and 25 are extracted here-in-below:-
24. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.
25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
10. In view of above and considering the overall facts and circumstances of the case since this petition has been filed with great delay and laches without sufficient explanation for the same and being thorough negligent attitude of the petitioner in pursuing his case, this court is not inclined to entertain this petition and dismiss it.
.
.
.......................................(Rajnish Kumar,J.)
Order Date :- 28.8.2023
Banswar
