Kerala High Court
Sheeba Dileep vs The South Indian Bank Ltd on 16 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
OP (DRT) NO. 72 OF 2024
SA No.237/2023 OF THE DEBT RECOVERY TRIBUNAL-2,
ERNAKULAM
PETITIONER/APPLICANT:
SHEEBA DILEEP, AGED 49 YEARS
W/O. DILEEP KUMAR ANIKUNNEL HOUSE
NEDUMKANDAM POST CHAKKAKANAM, IDUKKI,
PIN - 685 553.
BY ADVS.
SADCHITH.P.KURUP
C.P.ANIL RAJ
SIVA SURESH
RESHMA RAJ
RESPONDENTS:
1 THE SOUTH INDIAN BANK LTD
CENTER POINT, NEDUMKANDAM BRANCH IDUKKI
DISTRICT , REP. BY ITS BRANCH MANAGER,
PIN - 685 553.
2 THE AUTHORISED OFFICER
THE SOUTH INDIAN BANK LTD.
MUVATTUPUZHA REGIONAL OFFICE 1ST FLOOR,
KAVIKUNNEL CHAMBERS T.B JUNCTION,
MUVATTUPUZHA, PIN - 686 661.
3 SANIYO JOSEPH
S/O. JOSEPH ANTONY, NELLIYEKUNNEL HOUSE,
NEDUMKANDOM.P.O., IDUKKI, PIN - 685 553.
4 MRS. NAVA JYOTHI
W/O. GANESH, PUTHENPURAYIL HOUSE,
NEDUMKANDOM.P.O., IDUKKI,
PIN - 685 553.
O.P.(DRT) No.72 of 2024
:2:
BY ADVS.
AMBILY S
RUPA R. NAIR(K/001021/2023)
RUBAN JOE TONIYO(K/002926/2022)
MATHEW JOSEPH BALUMMEL(K/001219/2019)
K.K.CHANDRAN PILLAI (SR.)(C-41)
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P.(DRT) No.72 of 2024
:3:
JUDGMENT
Dated this the 16th day of February, 2024
The petitioner claims to be an innocent purchaser of
the property belonging to the 4 th respondent. The purchase was
in the year 2017.
2. According to the petitioner, she had purchased the
said property without knowing the fact that it is mortgaged by the
3rd respondent and his father to the 2 nd respondent-Bank. When
coercive proceedings were initiated by the Bank for selling the
property, the petitioner filed I.A No.1581/2023 in S.A
No.237/2023 before the Debts Recovery Tribunal-2, Ernakulam.
The Debts Recovery Tribunal dismissed the I.A.
3. Aggrieved by the order in I.A No.1581/2023, the
petitioner preferred an appeal before the Debts Recovery
Appellate Tribunal invoking Section 18 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002. The petitioner also filed a petition to condone
the delay of 21 days in preferring the appeal against order dated
09.06.2023. The Debts Recovery Appellate Tribunal dismissed
the I.A for condonation of delay holding that the petitioner has
not given any particulars to facilitate the computation of delay.
The petitioner is challenging Ext.P13 order dated 05.01.2024 in
I.A No.342/2023 in AIR No.1105/2023 preferred by the
petitioner.
4. Counsel appearing for the petitioner would point out
that before the Debts Recovery Appellate Tribunal, even the
Counsel appearing for the respondent had no serious objection
regarding condonation of delay, because the delay was only of a
period of 21 days. The Tribunal did not go into the issue as to
whether the duration of delay is short or long. In case of a short
delay, the Tribunal ought to have condoned the delay on terms.
The valuable right of the petitioner conferred under Section 18 of
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 will be rendered
nugatory if the delay is not condoned.
5. Counsel appearing for the petitioner relied on the
judgment of the Hon'ble Appex Court in Collector, Land
Acquisition, Anantnag and another v. M/s MST Katiji and
others [1987 (2) SCC 107] which held that ordinarily a litigant
does not stand to benefit by lodging an appeal late. Refusing to
condone delay can result in a meritorious matter being thrown
out at the very threshold and cause of justice being defeated. As
against this, when delay is condoned, the highest that can
happen is that a cause would be decided on merits after hearing
the parties. Counsel for petitioner also relied on the judgment of
Ho'ble Apex Court in Vedabai alias Vaijayantabhai Baburao
patil v. Shantharam Baburao patil and Others [2001 (9)
SCC106].
6. Standing Counsel representing the respondents
submitted that the petitioner had initially filed S.A 51/2019, which
was dismissed by the Debts Recovery Tribunal. The petitioner
has not challenged the order in the said S.A. Subsequently, the
present S.A No.237/2003 has been filed with the same cause of
action and relief. The issue is barred by res judicata, contended
the Standing Counsel.
7. I have heard the learnd Counsel appearing for the
petitioner and the learned Standing Counsel representing
respondents 1 and 2.
8. On the application to condone delay, the Tribunal
noted that perusal of the affidavit filed by the petitioner would
show that the petitioner had approached the Court stating that
the delay is due to financial constraints. The Tribunal noted that
the affidavit is silent as to the date on which the
petitioner/appellant approached the Court and on what date the
Court decided the matter. The Tribunal held that without giving
such particulars, it is not possible to compute the delay.
9. The Tribunal found that as per the provisions of the
Legal Service Authority Act, the petitioner is entitled to get free
legal assistance and therefore, the ground of financial
constraints cannot be accepted.
Taking into consideration the facts of the case, I do
not find any illegality or irregularity in Ext.P13 order passed by
the Debts Recovery Appellate Tribunal. The reasons given by
the Tribunal for not condoning the delay are good and sufficent.
O.P.(DRT) is therefore dismissed.
Sd/-
N. NAGARESH
JUDGE
AMR
APPENDIX OF OP (DRT) 72/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 31.03.2023
PASSED BY THE DRT-2, ERNAKULAM IN SA NO.
51/2019.
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED
18.04.2023 IN W.P(C) NO. 13581 OF 2023
OF THIS HON'BLE COURT.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 08.05.2023
ISSUED BY THE ADVOCATE COMMISSIONER.
Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED
16.05.2023 IN W.P(C) NO. 15705 OF 2023
OF THIS HON'BLE COURT.
Exhibit P5 TRUE COPY OF THE S.A NO 237 OF 2023
WITHOUT ANNEXURES FILED BEFORE DRT - 2
ERNAKULAM.
Exhibit P6 TRUE COPY OF THE I.A NO 1581 OF 2023 FOR
STAY FILED BEFORE DRT-2 ERNAKULAM.
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED
23.05.2023 IN W.P(C) NO. 15705 OF 2023
OF THIS HON'BLE COURT.
Exhibit P8 A TRUE COPY OF THE ORDER DATED
09.06.2023 IN I.A NO 1581 OF 2023 FOR
STAY BY BEFORE DRT - 2 ERNAKULAM.
Exhibit P9 A TRUE COPY OF THE APPEAL MEMORANDUM
(DIARY NO. 1105/2023) DATED 9/8/2023 IN
DRAT CHENNAI.
Exhibit P10 A TRUE COPY OF DELAY PETITION IA 342 OF
23 ON THE FILE OF THE DRAT CHENNAI.
Exhibit P11 A TRUE COPY OF STAY PETITION FILED IN
DRAT CHENNAI.
Exhibit P12 A TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 12.2.2024 ISSUED BY
DR. SREEDEPAN M.
Exhibit P13 A TRUE COPY OF THE ORDER DATED 5.1.2024
IN IA 342/23 IN AIR 1105/23 IN DRAT
CHENNNAI.
