Vasant Govind Kalokhe And Anr vs Authorized Officer, State Bank Of ...
2017 Latest Caselaw 1926 Bom

 suresh                                    908-WP-12269.2015.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION 
                     WRIT PETITION NO.12269 OF 2015


 1. Vasant Govind Kalokhe,
     Age: 45 years, Occ: Business

 2. Mrs. Meera Vasant Kalokhe,
     Age: 42 years, Occ: Housewife

 Both residing at Salemax Bunglow,
 22B, Pay Wood, Lonavala,
 Pune - 410 401.                                  ....  Petitioners

          - Versus -

 1. Authorized Officer,
     State Bank of India,
     having its branch office at
     Lonavala Branch, Lokmanya
     Tilak Marg, Lonavala,
     District: Pune - 410 401.

 2. Sachin Rajaram Kalokhe, 
     residing at Sudawadi, Tal. Maval,
     Dist: Pune, Pin 410 507.                     ....  Respondents


 Ms Sonali Jain for the Petitioners.
 Mr. P.D. Patil for Respondent No.1.
 Mr. U.B. Nighot for Respondent No.2.




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                                CORAM: S.C. DHARMADHIKARI &
                                             SMT. SADHANA S. JADHAV, JJ.

DATE : APRIL 21, 2017

ORAL JUDGMENT (Per Shri S.C. DHARMADHIKARI, J.) :

1. Heard both sides. Rule. The respondents waive

service. By consent, the petition is disposed of finally by this

order.

2. At the outset and for the reasons which we have

found to be bona fide and genuine, we extend the time to

deposit the amount under the order passed on 7-3-2017 by this

Court. The amount had to be deposited within a period of one

week from 7-3-2017, but it is stated that the Demand Draft of

the same is ready and would be deposited with the Bank within

one week, that is on or before 28-4-2017. We accept this

statement and accordingly extend the time to deposit the

amount from 7-3-2017 to 28-4-2017.

3. Under challenge in this appeal is an order passed by

suresh 908-WP-12269.2015.doc

the learned Chairperson of the Debts Recovery Appellate

Tribunal (DRAT) at Mumbai, dated 30-12-2015, in

Miscellaneous Application No.892 of 2015 in Appeal No.309 of

2015.

4. The application for condonation of delay filed by the

petitioners/appellants before us has been dismissed by this

order.

5. The appeal was filed challenging an order dated

13-8-2015 of the Debts Recovery Tribunal (DRT), Pune.

6. In the miscellaneous application seeking

condonation of delay, the petitioners/appellants pointed out

that they had filed the appeal not within the prescribed period,

but there is a delay. The Advocate appearing for them came to

know about the order passed by the DRT dated 13-8-2015 only

on 27-8-2015. That is after an enquiry was made in the office of

the DRT. The Clerk who was to prepare the certified copy was

on leave. That is why the application for certified copy was

suresh 908-WP-12269.2015.doc

made on 8-9-2015. On account of even some administrative

difficulties in the DRT, the certified copy was ready on

7-10-2015 and was delivered on 7-10-2015 itself. This resulted

in a delay of 21 days, but in the afore-mentioned circumstances.

7. Naturally, the main proceedings are post a sale of

the secured assets. The sale having been concluded, the Bank

and the auction purchaser opposed this application. The learned

Chairperson, contrary to the settled principles which enable

condoning delay in filing of proceedings, in para 6, held that the

details such as when the application for certified copy was filed

and what is its filing number have not been mentioned.

Therefore, the petitioners/appellants were accused of not acting

bona fide. The explanation was termed as not genuine. Further,

the understanding of the learned Chairperson is that each and

every day's delay has to be explained satisfactorily. The

explanation is vague.

8. Though the learned Advocate appearing for the

Bank, and Mr. Nighot, appearing for the auction purchaser

suresh 908-WP-12269.2015.doc

would support the said reasonings of the learned Chairperson,

we are unable to agree with them.

9. First of all, after several Judgments of the Hon'ble

Supreme Court and taking a view initially that every day's delay

has to be explained, that requirement is somewhat diluted. Now,

liberal principles enable condonation of delay so long as a

litigant does not act bona fide or is utterly negligent or shows

callousness, the discretion should be exercised in favour of

condoning the delay, for one would loose a valuable right to

contest or to prosecute the proceedings on merits. In the instant

case, a right of appeal is conferred by the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 itself. It is conditioned by a stipulation set out

in sub-section (2) of Section 18 thereof. Further, the explanation

in the present case was that the Advocate did not make

enquiries for a quite number of days and did not inform the

petitioners about the adverse order. He then states that it is the

petitioners' duty also to follow it up but it is not as if they were

not vigilant. They contacted the Advocate who later on apprised

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them of the position by addressing a letter dated 7-10-2015. The

mistake, if any, is owned up by this Advocate. If it is of the

Advocate, then, we surely feel that the litigant should not suffer.

Further, in para 3 of this miscellaneous application all the

requisite details are provided. In the circumstances, a hyper-

technical view depriving the petitioners of a valuable right of an

appeal cannot be sustained.

10. We proceed to allow the petition; quash and set

aside the impugned order. Since the amount, as directed by this

Court is now to be made over to the Bank, for being retained

and invested till the disposal of the appeal before the DRAT, we

do not impose costs. The DRAT to now register the appeal of the

petitioners and decide it on merits and in accordance with law.

11. Rule is made absolute in the above terms. There will

be no order as to costs.

12. There is an interim protection granted by this Court

on 15-1-2016 against dispossession of the petitioners from the

suresh 908-WP-12269.2015.doc

subject-premises. That shall continue to operate during the

pendency of the appeal before the DRAT on the condition that

no third party shall be inducted nor the premises transferred in

any manner.

(SMT. SADHANA S. JADHAV, J.) (S.C. DHARMADHIKARI, J.)