Joy Thomas & Ors v State Bank of India & Ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WA.No. 1818 of 2011() ---------------------------AGAINST THE JUDGEMENT/ORDER IN OPDRT.3611/2011 .................... APPELLANT(S): PETITIONERS ------------------------------------------ 1. JOY THOMAS,AGED 56 YEARS,S/O.THOMAS POST BOX NO.4489,ERNAKULAM NORTH.P.O, KOCHI-682018. 2. DILFINA JOY,W/O.JOY THOMAS,AGED 49 YEARS POST BOX NO.4489,ERNAKULAM NORTH.P.O, KOCHI-682018. 3. SMT.V.S.MARY,AGED 76 YEARS,KOLENCHERRY HOUSE,MATHILAKAM.P.O,KODUNGALLOOR,THRISSUR DIST. BY ADV. SRI.MATHEW SEBASTIAN RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. STATE BANK OF INDIA,COCHIN-1 BRANCH, REPRESENTED BY CHIEF MANAGER,C & I DIVISION, FORT KOCHI-682001. 2. THE DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI-600 001. 3. THE RECOVERY OFFICER,DEBT RECOVERY TRIBUNAL,ERNAKULAM,PIN-682036. R1 BY SC SRI.GEORGE THOMAS MEVADA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR, Ag.C.J** ## **&** ## **P.R.RAMACHANDRA MENON, J.** ## **----------------------------------------------** ## **W.A.No. 1818 of 2011** ## **----------------------------------------------** ## **Dated this the 30[th] day of November, 2011 JUDGMENT** ## **Ramachandra Menon, J.** This appears to be the 5[th] round of litigation before this Court at the instance of one or the other appellants; the previous four rounds on the original side and the present one, on the appellate side. 2. The sequence of events as narrated in the proceedings reveals that the first appellant had borrowed some amounts from the respondent Bank and the other appellants - wife and motherin-law respectively were the guarantors. In view of the default in satisfying the loan amount, the Bank proceeded with further steps for realisation of the due amount by approaching the competent Civil Court way back in 1996; which culminated in a decree passed in the year 1997. By this time, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 came into existence, whereby the jurisdiction to deal with the issues related thereto in 2 _**WA.1818/11**_ respect of financial institutions happened to be transferred to the Debt Recovery Tribunal. Originally, the Tribunal constituted in Chennai was vested with the jurisdiction over Kerala as well. In the said circumstances, O.A.No.1573 of 1998 was filed before the Chennai Tribunal and later, on formation of the Debt Recovery Tribunal, Kerala, the same was transferred to this Tribunal, which led to Exhibit P1 verdict passed by the Debt Recovery Tribunal, Ernakulam in the year 2000. 3. Things took different turns thereafter and when the Bank proceeded with further steps for realisation of the due amount, the appellants, one by one, approached this Court by filing Original Petitions/Writ Petitions at different points of time, by challenging the recovery proceedings, though the same did not turn to be fruitful. About a decade thereafter, the appellants before this Court challenged Exhibit P1 order by filing an appeal before the Debt Recovery Appellate Tribunal at Chennai, along with a petition to condone the delay of 3609 days in filing the said appeal. After considering the explanation offered in respect of the 3 _**WA.1818/11**_ delay, the Appellate Tribunal passed Exhibit P12 order, holding that the inordinate delay was not at all explained satisfactorily. In the said circumstances, the application to condone the delay was dismissed and as a natural consequence, the appeal was also dismissed. Met with the situation, the appellate approached this Court by filing the instant Original Petition, i.e., O.P.(DRT)No.3611 of 2011, wherein, inference was declined by the learned Single Judge and the Original Petition was dismissed as devoid of any merit, which forms the subject matter of challenge in this appeal. 4. Learned counsel for the appellants submits that the appellants were given to understand that the matter would be settled by the Bank and it was in the said circumstances, that the appellants did not choose to challenge Exhibit P12 order by approaching the Debt Recovery Appellate Tribunal earlier. It is also conceded that the appellants came to know of Exhibit P1 order in the year 2001. But, admittedly, the appeal was filed with a petition to condone the delay of 3609 days in filing the same, referring to the 'so-called reason' as to the settlement 4 _**WA.1818/11**_ proceedings being proceeded between the defaulters and the Bank. Although reference was made in the Original Petition only with regard to filing of two Writ Petitions, i.e., W.P(C).Nos.33328 of 2006 and 36086 of 2009, nothing was mentioned with regard to another Original Petition, i.e., O.P.No.35791 of 2002, which was also dismissed, as brought to the notice of the learned Single Judge from the respondents' side. It was in the said circumstances that interference was declined and the Original Petition was dismissed. 5. The learned counsel for the appellants, seeking to place reliance on the decision rendered by the Apex Court in _**Balakrishnan v. M.Krishnamurthy**_ {(1998) 7 SCC 123}, submits that the delay has to be liberally construed. True, the Apex Court made an observation in the above decision that the extent of delay is no matter and what matters is the 'explanation' offered. Considering the course and events pursued, this Court finds that the only explanation offered from the part of the appellants, as referred to in paragraph 7 was as to the 5 _**WA.1818/11**_ 'impression' gathered by the appellants that the matter would be settled amicably by the Bank, which made them not to challenge Exhibit P1 order before the Appellate Tribunal for nearly 10 years. The observations of the Appellate Tribunal, as contained in paragraph 7 of Exhibit P12, are extracted below: _“7. It is seen that the petitioners have sought to explain the delay of 3609 days in paragraph 9 of the affidavit filed in support of their petition. A reading of paragraph 9 reveals that the petitioners were under the impression that the amount would be settled by way of a settlement with the bank and therefore they did not challenge the final oder passed by the Tribunal below dated 25.2.2000 in the OA. It is also stated in the said paragraph that the delay had been caused due to the fact that the settlement had not been arrived at. Barring this reason no other reason has been stated to show that the petitioners were prevented by sufficient cause from filing the petition within the period_ 6 _**WA.1818/11**_ _of limitation and it is also seen that the delay of 3609 days has also not been explained.”_ 6. It has been specifically observed by the Appellate Tribunal that, barring the said reason, no other reason has been stated to show that the petitioner was prevented by sufficient cause from filing the proceedings within the period of limitation and that the delay of 3609 days has not been satisfactorily explained. As mentioned herein before, the ratio of the decision in _**Balakrishnan'**_ **s case** (Supra) is that the 'explanation' has to be satisfactory to the Court/Tribunal, who is considering the application for condonation of delay. In view of the observation of the Appellate Tribunal that the 'explanation' offered by the appellants was not at all satisfactory, the delay in filing the appeal was not condoned and in turn, the appeal was also dismissed. We find that the finding and reasoning given by the Appellate Tribunal is not liable to be interfered under any circumstance; more so, it being in conformity with the dictum in _**Balakrishnan'**_ **s case** (Supra). 7 _**WA.1818/11**_ 7. Coming to the aspects on merits, it is to be noted that the appellants were never strangers, who were much aware of the decree passed by the competent Civil Court as early as in the year 1997. It was pursuant to the change of jurisdiction, transferring the same from the Civil Court to the Debt Recovery Tribunal, that the proceedings happened to be filed before the Debt Recovery Tribunal, which culminated in Exhibit P1 order passed in February, 2000. True, there is a case for the appellants that they were not aware of the transfer of the proceedings from the Chennai Tribunal to the Debt Recovery Tribunal at Ernakulam. But the fact remains that absolutely no effort was there on the part of the appellants to know the fate of the proceedings filed before the DRT, Chennai; till Exhibit P1 order was passed. It is also admitted by the appellants that they came to know about Exhibit P1 proceedings in the year 2001. Still, they did not choose to challenge the said order then and there. It is also relevant to note that, when recovery steps were pursued, the appellants, one by one, approached this Court, initially in the year 2002 itself and 8 _**WA.1818/11**_ later. At that point of time, there was no challenge against Exhibit P1 order. So also is the position with regard to the subsequent proceedings filed in the year 2006 (W.P(C).No.33328 of 2006 by one of the appellants and W.P(C).No.36086 of 2009 by the other). The first Writ Petition admittedly did not turn to be fruitful. The second one, though interference was made by directing the petitioner to deposit a portion of the amount, the condition was not satisfied and in the said circumstances, the said Writ Petition was dismissed. In the third Writ Petition also, there was an interim direction, which was not complied with. In the said circumstances, the said Writ Petition also ended in dismissal. It was thereafter, that the instant writ petition came to be filed by the appellants, that too, without mentioning anything about the filing and dismissal of O.P.No.35791 of 2002. 8. We see no ground to interfere with the finding and the reasoning given by the learned Single Judge. According to us, there is an abuse of process of Court, which warrants dismissal with exemplary cost. However, taking note of the persuasive 9 _**WA.1818/11**_ submissions made by the learned counsel for the appellants as to the alleged 'communication gap', we reluctantly refrain from awarding any cost. Interference is declined and the appeal is dismissed accordingly. **MANJULA CHELLUR, ACTING CHIEF JUSTICE** **P.R.RAMACHANDRA MENON, JUDGE** **vgs** 10 _**WA.1818/11**_ # **MANJULA CHELLUR, Ag.C.J** ## **&** ## **P.R.RAMACHANDRA MENON, J.** ## **----------------------------------------------** ## **W.A.No. 1818 of 2011** ## **----------------------------------------------** ## **Dated this the 01[st] day of December, 2011 O R D E R** ## **Manjula Chellur, Ag.C.J.** The learned counsel for the appellant sought for modification of the judgment dictated on 30.11.2011, to post-pone issuance of sale certificate by one month, in order to accommodate him to reach a settlement out side the Court. Having regard to the fact that the Bank has already conducted public auction in January, 2010, almost two years back and in the absence of successful bidder being a party, there is no good reason to grant the relief sought for by the appellant. Therefore, the order dictated yesterday will remain in force. ## **MANJULA CHELLUR, ACTING CHIEF JUSTICE** ## **P.R.RAMACHANDRA MENON, JUDGE** kmd