Ashok Menon, Chairperson
1. The Appellants are in appeal impugned the order dated 21.01.2015 in the Miscellaneous Application (M.A.) No. 222/2010 in the Securitization Application at Lodging No. 1069/2010 on the files of the Debts Recovery Tribunal-III, Mumbai (D.R.T.) which is an application for condonation of delay in filing the S.A. The Ld. Presiding Officer dismissed the application in limine by finding that there is no acceptable explanation forthcoming regarding the unusual delay of 1768 days in filing the S.A. The Appellants are aggrieved and hence, in appeal.
2. The Appellants contend that there is no delay in filing the S.A. because an order u/s 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act” for short) was obtained by the Respondent bank on 28.10.2005 to take the physical possession of the property in consequence to the default in repayment of the debt and issuance of the demand notice 13 (2) on 30.04.2004. Consequent to the order u/s 14 the Tahsildar issued the notice on 31.01.2006 asking the Appellants to surrender physical possession of the secured assets within 15 days. It is then that the Appellants woke up from their slumber and approached the Hon’ble High Court of Bombay with Writ Petition No. 926/2006 on 16.02.2006 after obtaining a copy of the order of the District Magistrate on 06.02.2006. Thereafter, the Appellants very successfully stalled the Sarfaesi action and allegedly deposited a sum of ₹4 lakhs before the Hon’ble High Court. The Writ Petition was soft-pedalled for more than four and half years. Ultimately, on 27.10.2010 when the Writ Petition was taken up, it was found that the Appellants were in the wrong place and that the Hon’ble High Court did not have a jurisdiction to entertain the Writ Petition since effective alternate remedy was available for the Appellants under the provision of the SARFAESI Act to approached the D.R.T. Thereafter, the Appellants filed the S.A. on 06.12.2010 with application for condonation of the delay.
3. The Ld. Counsel appearing for the Appellants would submit that the Appellants were bonafide prosecuting the Writ Petition for more than four and half years and therefore, the time spent by them before the Hon’ble High Court is to be excluded under the provision of Sec. 14 of the Limitation Act and therefore, there is no delay in filing the S.A. contends the Ld. Counsel appearing for the Appellants.
4. To earn the exclusion of time u/s 14 of the Limitation Act, it is essential for the Appellants to establish that they have been prosecuting the matter with due diligence before the Hon’ble High Court in good faith. In the instant case, it cannot be said that the Appellants were bonafide prosecuting the Writ Petition with due diligence for more than four and half years, blissfully ignorant of the available remedy before the D.R.T. In the order dismissing the Writ Petition, the Hon’ble High Court has not granted an exclusion of time spent by the Appellants before the Hon’ble High Court specifically. Under the circumstance, the Appellants may not be entitled to get the period excluded u/s 14.
5. It is pertinent to note that the Appellants had received the notice 13 (2) as early as 30.04.2004 and more than two decades have passed. The Appellants have been very successfully steering clear of the Sarfaesi action and have also successfully thwarted the action by filing the Writ Petition and depositing some amount. The provision of law under the SARAFAESI Act is for quick recovery of the defaulted public money. The Appellants had successfully refrained from making the entire payment for more than two decades and they cannot be granted any indulgence in this matter and the explanation for delay offered is not sufficient. The law does not come to the assistance of those who sleep over the right.
Hence, the Ld. Presiding Officer had rightly dismissed the application for condonation of delay though without much explanation. The explanation offered by the Appellants for getting the delay condoned is not acceptable at all and therefore, there are no merits in this appeal. The appeal is only to be dismissed and the order of dismissal of the application for condonation of delay is sustained.
