P.E. Madhavan v. Registrar, Debt Recovery Tribunal, Ernakulam and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** ## **OP (DRT).No. 57 of 2018** **IN UNNUMBERED S.A. OF DEBT RECOVERY TRIBUNAL, ERNAKULAM** ## **PETITIONER(S)/APPLICANT:** **P.E.MADHAVAN, AGED 88 YEARS,S/O ITTAN,PUTHENPURACKAL HOUSE, KIZHAKOMBU POST, KOOTHATTUKULAM, PIN-686662.** **BY ADV.SRI.N.K.MOHANLAL** ## **RESPONDENT(S)/DEFENDANTS 2 TO 4:** **1. REGISTRAR , DEBT RECOVERY TRIBUNAL, ERNAKULAM, PIN-682036.** **2. AUTHORISED OFFICER, J.M. FINANCIAL ASSET, RECONSTRUCTION CO. PVT. LTD.,** - **141, MARKET CHAMBERS III, NARIMAN POINT, MUMABAI-400021.** **3. M/S AGNA MEDIA STUDIO, 48/557-F,NEAR BHAVAN'S SCHOOL, ELAMAKKARA.P.O, PIN-682026.** ## **4. MANOJ ALUNGAL,** **S/O NARAYANAN, ALUNGAL HOUSE, NANTHIATTUKUNNAM, NORTH PARUR,PIN-683512.** **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rvs.** **OP (DRT).No. 57 of 2018 (O)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 A TRUE COPY OF THE UNNUMBERED S A BEFORE THE HON'BLE DEBTS RECOVERY TRIBUNAL (KERALA AND LAKSHADWEEP)ERNAKULAM.** **EXHIBIT P2 A TRUE COPY OF THE PETITION TO CONDONE DELAY IN REPRESENTATION BEFORE THE HON'BLE DEBTS RECOVERY TRIBUNAL (KERALA AND LAKSHADWEEP ERNAKULAM DATED 17/03/2018.** **EXHIBIT P3 A TRUE COPY OF JUDGMENT IN OP(DRT)88/16 OF HON'BLE HIGH COURT OF KERALA. EXHIBIT P4 A TRUE COPY OF JUDGMENT IN W A NO.1767/17 DATED 09/11/2017 BEFORE THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 A TRUE COPY OF JUDGMENT AIR 1977 SC 2221/(BIKRAM DAS. V. FINANCIAL COMMISSIONER & OTHERS) EXHIBIT P6 A TRUE COPY OF JUDGMENT AIR 1978 SC 335 (INDIAN STATISTICAL INSTITUTE VS.M/S ASSOCIATE BUILDERS & OTHERS).** ## **RESPONDENT(S)' EXHIBITS:** **NIL.** **/TRUE COPY/** **P.S. TO JUDGE** **RVS. 04/08/2018** ## **DAMA SESHADRI NAIDU, J.** ================================== **O.P.(DRT) No.57 of 2018** ================================== **Dated this the 12[th] day of July 2018** ## **JUDGMENT** The petitioner, a borrower, has been facing recovery proceedings under the SARFAESI Act. On 11.11.2016 he filed a Securitisation Appeal (S.A.) before the Debt Recovery Tribunal-I, Ernakulam. As the S.A. was defective, the Tribunal's Registry returned it on 30.11.2016 for “compliance and re-presentation.” 2. On 17.03.2018, the petitioner represented the S.A. with a delay of 462 days. On 19.03.2018, though the Tribunal took up the matter to consider the delay, the petitioner, it seems, was absent. Then, the Tribunal adjourned the matter to 20.04.2018. That day, too, the petitioner failed to show up. Then, to 26.06.2018 the matter stood posted. 3. In the meanwhile, the petitioner approached this Court, filing this Writ Petition seeking early disposal of his delay condonation petition in the S.A. So this Court required the Tribunal's Registry to appraise it on the issue. In response, the learned Presiding Officer, through communication dated 07.05.2018, informed this Court about the delay in O.P.(DRT) No.57 of 2018 2 ## re-presentation and the petitioner's repeated absence before the Tribunal. ## Eventually, the Tribunal has informed this Court: "5. The reason alleged by the OP petitioner in ground 3 that the Registrar is empowered to allow the applicant such time to rectify the defect as he may deem fit which is inclusive of power to condone the delay or enlarge the time for re-presentation is incorrect. If an application filed by an applicant is defective, subrule (3) of R.5 of the Debts Recovery Tribunal (Procedure) Rules, 1993 provides the Registrar of a Tribunal to grant such time as he may deem fit to rectify the defect. Sub-rule (4) thereto specifically says that if the concerned applicant fails to rectify the defect within the time allowed in sub-rule(3), the Registrar may by order and for reasons to be recorded in writing, decline to register the application. As per sub-regulation(3) to Regu.9 of the Debts Recovery Tribunal-I, Ernakulam Regulations 2015, if on scrutiny, a case is found to be defective and the defect noticed is not formal, the applicant/appellant shall be asked to remove the defect(s)within fifteen days, which may be extended for a period not exceeding one month. Sub-regulation(4) thereto says that on failure to remove the defect within such period as specified in subregulation(3), the Registrar may, for reasons to be recorded in writing, decline to register the case. Hence, nowhere in the aforesaid provisions of law, the Registrar has been given power, authority and jurisdiction to condone the delay or enlarge the time for re-presentation beyond one month." 4. The learned Presiding Officer has also referred to the judgment of this Court in OP(DRT) No.88/2016, which stood affirmed in Writ Appeal No.1767/2017. That judgment stresses the procedural hurdles the O.P.(DRT) No.57 of 2018 3 Tribunal faces in condoning the delay beyond statutorily permissible period. 5. As seen from the judgment and from the Tribunal's communication, the statute does not _seem_ to empower the Tribunal to condone the delay beyond one month. 6. Faced with this situation the petitioner's counsel today brought to my notice a Supreme Court’s judgment in _Northern Railway v. Pioneer Publicity Corporation Private Limited_ .[1] 7. Now, I will examine the precedential paradox. A borrower filed an SA before the DRT and had it returned for defects. Defects cured, he represented it with 295 days’ delay. The Tribunal condoned the delay. The auction purchaser questioned the Tribunal’s jurisdiction in condoning the delay. This Court _George Jacob v. M/s. Poonam Mills_ , has held, per a learned Single Judge, that the Tribunal has jurisdiction neither under Section 17 (7) of the Act nor under Rule 5(3) of the Debt Recovery Tribunal Procedural Rules. In support, the learned Single Judge has relied 1 (2017)11 SCC 234 O.P.(DRT) No.57 of 2018 4 on _K. P. Jayan v. Hong Kong & Shanghai Banking Corporation.[2]_ ,a Division Bench judgment. 8. _George Jacob,_ taken in appeal, stood affirmed. The Division Bench, through its Judgment, dt.09.11.2017, in _M/s. Poonam Mills v. Geroge Jacob,_ has followed the judgment in _K. P. Jayan_ , as did the learned Single Judge. 9. So now, we will examine the facts of _K. P. Jayan_ , to see whether that judgment applies the bar of limitation to representations, too. In _K. P. Jayan,_ succinctly stated, a debtor filed an SA before the Tribunal with 554 days’ delay. He filed an IA to have it condoned. The Tribunal held that section 5 of the Limitation Act does not apply to an application under section 17(1) of the SARFAESI Act. The debtor approaching this Court, both the learned Single Judge and, later, the Division Bench in _K. P. Jayan_ upheld that finding. 10. I reckon the issue in _K. P. Jayan_ was about limitation in filing an original application—not representation. In _Poonam Mills_ , the issue concerns representation. Thus, precedentially, they are different. In other 2 Judgment, dt.31.08.2015, in WA No.1797 of 2009. O.P.(DRT) No.57 of 2018 5 words, _K. P. Jayan_ ought not to have influenced _Poonam Mills_ . But it did. And I was a part of the Division Bench that decided _Poonam Mills_ , as inescapable irony sometimes catches us unaware. Indeed, the factual distinction we did not notice or—to put it in Orwellian terms—it was not brought to our notice.[3] 11. Then, I must examine whether the constraints of limitation govern the representation, too. I need invent no wheel. Here it is, already. 12. _Pioneer Publicity Corporation_ has reviewed the statutory limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996—analogous to Section 17 of the SARFAESI Act, read with Rule 5 of the Rules. Section 34 of the other Act also does not permit the Arbitrator to condone the delay beyond a period. In that context, the Supreme Court has held that the invariable limitation-period does not apply to representations. And the observations are these: “4. We find that said Section 34(3) _has no application in re-filing the petition but only applies to the initial filing of the objections under Section 34 of the Act._ It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that > 3 George Orwell, in his celebrated article “Politics and the English Language”, decried the passive expressions hiding the agent. He advises, “Never use the passive where you can use the active.” For him, a statement like “I made a mistake” is a virtue, and one like “mistakes were made” is an evasion. Yes, in _M/s.Poonam Mills_ , we made a mistake. O.P.(DRT) No.57 of 2018 6 if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to refiling. 5. We are not inclined to accept this contention, particularly since the petitioner has offered an explanation for the delay for the period after the extensions.” ## **The Decisional Dilemma:** 13. Technically, _Poonam Mills_ , a Division Bench decision, binds me; it holds that the statutory limitation applies to representations, too. As a Single Bench I cannot but follow the precedent. But here comes another decision: _Pioneer Publicity Corporation_ , rendered by the Supreme Court. The Constitution commands through Article 141 that precedentially Supreme Court’s decision occupies the pride of place and ought to be followed. So I do. ## **Conclusion:** 14. Under these circumstances, I hold, with great respect, that _M/s. Poonam Mills_ is no longer good law because of _Pioneer Publicity Corporation_ . O.P.(DRT) No.57 of 2018 7 15. So I dispose of this writ petition holding that the Debt Recovery Tribunal will examine the delay, in the light of _Pioneer Publicity Corporation’s_ ratio, and pass orders. I also clarify that the petitioner must be present before the Tribunal on the day it fixes for hearing. 16. True, the petitioner was repeatedly absent, and this Court cannot appreciate the petitioner’s conduct. Yet the Tribunal may decide the issue, in the interest of justice, on merits. The writ petition stands disposed of. Under these peculiar circumstances, the respondent bank will defer coercive steps until the Tribunal considers the interlocutory applications in the S.A. Sd/- **DAMA SESHADRI NAIDU JUDGE** sd