LA KOZY Vs. ING VYSYA BANK LTD

JUDGEMENT

(1.) This Writ Petition under Article 226 of the Constitution of India takes exception to the Order dated 29th July, 2008 passed by the DRAT, Mumbai in Misc. Appeal No. 81 of 2008, which in turn has affirmed the order passed by the Presiding Officer(In-charge), DRT-II, Mumbai on Interim Application No. 4 of 2008 filed under Section 5 of the Limitation Act praying for condonation of delay of 506 days in filing the Appeal under Section 17 of the Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. The broad facts relevant to consider present Petition are as follows.

(2.) The Respondent Bank issued possession notice on 6th June, 2006 indicating that it would proceed to take possession of the mortgaged property of the borrowers and on the basis of the said notice proceeded to take possession of the property in question. Thereafter, auction notice was issued on 6th September, 2007 and the auction was held on 8th October, 2007. Significantly, the son of Petitioner No. 2 participated in the said bid process and was the second highest bidder. The sale was however, confirmed in favour of the highest bidder and on the basis of which sale certificate was issued on 13th November, 2007. The Respondent Bank made over possession of the property in question to the highest bidder, in whose favour sale was confirmed, on 16th November, 2007. The Petitioners however, filed Mis. Application before DRT for setting aside sale of the suit property only on 24th December, 2007, which was not accompanied by Application for condonation of delay on the assumption that the limitation would commence from the date of knowledge of the Petitioners about the sale of the suit property by the Respondent No. 1 Bank. However, in view of the office objection, the Petitioners filed formal application for condonation of delay, which according to the Office was 506 days. According to the Petitioners, the Petitioner No. 1 had sent letter to the Respondent No. 1 Bank informing that the partnership firm was the owner of the premises. That communication was sent on 5th August, 2006 which was followed by another communication dated 12th September, 2006. Inspite of the said letters, no response was given by the Respondent No. 1 Bank. In the meantime, the auction of the property was precipitated. As a result, the Petitioner No. 4 wrote to the Respondent No. 1 Bank stating that the Respondent No. 7 to 10 were never owners of the suit premises and any action by the Respondent No. 1 Bank to sell the suit premises will not be binding. The Respondent No. 1 Bank sent letter on 4th December, 2007 intimating that the suit premises have already been sold and the Bank was desirous of shifting movables lying therein. Taking clue from this communication, the Petitioners rushed to the DRT and filed proceedings questioning the legality and validity of the action of sale by the Respondent Bank qua the suit property. According to the Petitioners, there was no delay at all and in any case, the delay was condonable, as sufficient cause was made out by the Petitioners.

(3.) The Application preferred by the Petitioners was resisted by the contesting Respondents. According to the contesting Respondents, the limitation would start running from 6th June, 2006 when possession of the suit property was taken over by the Respondent Bank. The communication sent by the Petitioners would be of no avail and cannot stop running of limitation. The ground stated by the Petitioners of no response by the Respondent Bank is only an excuse in the fact situation of the present case. In that, the Petitioners were fully aware about the factum of taking over of possession by the Respondent Bank as back as on 6th June, 2006. Moreover, the son of the Petitioner No. 2 himself participated in the auction process, which falsifies the tall claim of the Petitioners that they had no notice or knowledge about taking over possession of the suit property. After considering rival submissions, the DRT by a speaking order rejected the Application for condonation of delay for the following reasons, which can be discerned from paragraphs-6 and 7 of the Judgment under Appeal. The same read thus: