GEETA JAIN Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THE applicant/appellant was defendant No. 6 in the T.A. No. 586/2002 (Original Application No. 74/98) which had been filed by the respondent -Indian Overseas Bank against six defendants including the applicant/appellant herself for the recovery of Rs. 29 lacs and odd with pendente lite and future interest, costs, etc. The main borrower was a partnership firm with four partners who were the real brothers of the applicant/appellant. She was the guarantor and mortgagor for the repayment of the loan and credit facilities extended by the Bank. She filed the written statement and the evidence. After contest, the T.A. (Original Application) was decreed by the Tribunal below on 13th August, 2004 for the recovery of Rs. 29 lacs and odd against all the defendants jointly and severally along with costs as also pendente lite and future interest @ 10% per annum. The appeal came to be presented as late as on 18th April, 2007 with miscellaneous application No. 178/2007 under Section 5 of the Limitation Act, 1963 for condonation of delay.

(2.) THE delay is of 933 days. The ground advanced for condonation of delay as per application supported by her affidavit is that she never received the copy of the final order dated 13th August, 2004 passed by the Tribunal below. Surprisingly, she received a demand notice issued in the recovery proceedings sometimes in and around second week of November, 2004. Then, she engaged a Counsel to take steps to protect her interest. The Counsel appeared before the Recovery Officer on 19th November, 2004. Thereafter, the Counsel for the appellant appeared before the Tribunal on 2nd February, 2005, 6th April, 2005, 11th May, 2005, 14th July, 2005, 18th August, 2005, 16th September, 2005,10th November, 2005, 14th December, 2005, 20th January, 2006, 7th March, 2006, 13th April, 2006, 10th November, 2006 and 8th February, 2007. Her case is that she was assured by her previous Counsel that he would take steps for protecting her interest. Since he did not take any steps apart from appearing before the Recovery Officer, she engaged the services of the present Counsel (Mr. Hashmat Nabi) who inspected the record and applied for certified copy on 13th March, 2007 which was delivered on 29th March, 2007. The present Counsel advised her to present the appeal before this Tribunal and in consequence of such advice, she preferred the appeal on 18th April, 2007 and filed the application for condonation of delay on 4th July, 2007.

(3.) I have heard Mr. Hashmat Nabi, the learned Counsel for the applicant/appellant as well as Mr. S.P. Singha, learned Counsel for the respondent -Bank.