UMEDSINGH P CHAMPAVAT Vs. KOTAK MAHINDRA BANK LIMITED

JUDGEMENT

(1.) THIS petition has been preferred challenging order dated 22/01/2009 made by Debts Recovery Appellate Tribunal, Mumbai (the appellate authority) rejecting Misc. Appeal No. 545 of 2008 by refusing to condone delay of 354 days in filing the appeal.

(2.) ON 04/04/2007 the Debts Recovery Tribunal recorded that all the respondents were served, but except respondent No. 2, none had entered appearance and respondent No. 2 had not filed reply. Accordingly Civil Misc. Appeal No. 65 of 2006 came to be allowed. The petitioner challenged the said order by way of Misc. Appeal No. 214 of 2008 and as the appeal was barred by limitation application seeking condonation of delay of 354 days was made by the appellant. The appellate authority while passing order dated 22/01/2009 came to the conclusion that no sufficient cause had been shown by the appellant for condoning delay of 354 days in filing the appeal and the application for condonation of delay came to be rejected. For recording such a finding Appellate Tribunal, after hearing the parties, came to the conclusion that there was only a vague assertion in the application for condonation of delay as regards the employee of the petitioner leaving the petitioner and only after appointment of the new employee was the petitioner able to take steps to make inquiry as regards proceedings before Debts Recovery Tribunal. The contention that there was negligence on part of the Advocate of the petitioner in conducting proceedings before Debts Recovery Tribunal has also been negatived by the appellate authority.

(3.) LEARNED Advocate for the petitioner submitted that Debts Recovery Tribunal had proceeded to pass the order in the application made by respondent Bank on the first date when learned Advocate appearing for the petitioner had remained absent. That the petitioner appellant had made out sufficient cause for explaining the delay in filing the appeal and the delay being only of 354 days ought to have been condoned by the appellate authority. In support of the submissions reliance has been placed on following five decisions. Babubhai Bhagwanji Mehta and Ors. , Vs. State of Gujarat Spl. Secretary and Ors. , reported in 2004 (1) GLR 532. Special Land Acquisition Officer Vs. Lilavatiben Kodar Ranchhod and Ors. , reported in 2002 (3) GLR 1874. Mulabhai N Chavda Vs. Union of India and Ors reported in 2005 (4) GLR 2863. R. Handa Versus Abhaya Land And Finance Pvt. Ltd. , reported in 2009 (0) GLHEL-SC 43948. Ram Nath Sao alia Ram Nath Sahu and Ors. Vs. Gobardhan Sao and Others reported in AIR 2002 SC 1201. 3. 1 It was submitted that Courts have consistently condoned the delay and in the facts of the present case also delay was required to be condoned and a liberal approach adopted. That the appellate authority had failed to record any finding on merits though attention was invited to the judgment of this High Court on merits of the controversy.