High Court of KeralaSingle Judge2024-02-16Dismissed

Sheeba Dileep v. The South Indian Bank Ltd & Others

Case / Petition Number:OP (DRT) No.72 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-02-16
Court Decision / Holding: OP (DRT) No.72 of 2024 dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Sheeba Dileep

Respondents

The South Indian Bank Ltd Center Point, Nedumkandam Branch, Idukki District, rep. by its Branch Manager
The Authorized Officer, The South Indian Bank Ltd., Muvattupuzha Regional Office
Saniyo Joseph S/o. Joseph Antony, Nedumkandom.P.O., Idukki
Mrs. Nava Jyothi W/o. Ganesh, Nedumkandom.P.O., Idukki

Legal Representation & Advocates

Counsels for Petitioners

• Sadchith.P.Kurup
• C. Anil Raj
• Siva Suresh
• Reshma Raj

Counsels for Respondents

• Ambily S
• Rupa R. Nair(K/001021/2023)
• Ruban Joe Toniyo(K/002926/2022)
• Mathew Joseph Balummel(K/001219/2019)
• K.K.Chandran Pillai (Sr.)(C-41)

Case Synopsis & Summary

Sheeba Dileep, the petitioner, claims to be an innocent purchaser of a property mortgaged by the 3rd respondent and his father to the 2nd respondent bank. The purchase took place in 2017, before she learned of the mortgage. Coercive steps by the bank to sell the property prompted her to move I.A No.1581/2023 in S.A No.237/2023 before the Debt Recovery Tribunal-2, Ernakulam, which was dismissed. Aggrieved, she challenged the order under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Debts Recovery Appellate Tribunal. The Appellate Tribunal dismissed her application for condonation of delay in preferring the appeal dated 05.01.2024, holding that the delay details were missing and no substantial grounds were shown. The petitioner contends that condonation is essential to preserve her rights under Section 18, as a denial would render the remedy nugatory. She relies on Supreme Court precedents that ordinarily a litigant does not gain by filing late, but delay may be condoned to decide the matter on merits. The Standing Counsel counters that the matter is barred by res judicata since SA 51/2019 was dismissed by the Tribunal and the present SA 237/2003 has the same cause of action. The High Court dismissed the challenge, agreeing that the Appellate Tribunal’s reasons for not condoning delay are valid, and upheld the dismissal of the OP (DRT) 72/2024.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), Section 18Legal Services Authority Act, 1987

Legal Doctrines & Maxims

Condonation of delay should be allowed to avoid miscarriage of justice (Katiji Principle, Collector, Land Acquisition, Anantnag and others v. M/s MST Katiji and others, 1987 (2) SCC 107)
Vedabai alias Vaijayantabhai Baburao Patil v. Shantharam Baburao Patil and Others, 2001 (9) SCC 106)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that condonation of delay is essential to preserve her rights under Section 18 of the SARFAESI Act and prevent the remedy from becoming nugatory. It was noted that the delay was only 21 days and that the Debts Recovery Appellate Tribunal failed to assess whether the delay was short or long and placed an onerous condition on condonation. Counsel relied on the Supreme Court precedents in Katiji and Vedabai Patil, asserting that delay should be condoned to allow merits-based decisions and avoid miscarriage of justice; the ground of financial constraints under the Legal Services Authority Act was not accepted.

Contentions of Respondents

The Standing Counsel argued res judicata since S.A 51/2019 was dismissed by the Tribunal, and the present S.A 237/2003 arises from the same cause of action and relief. The Respondents contended that the delay submission lacked particulars and the Tribunal correctly refused condonation; no illegality or irregularity was found in Ext.P13.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Collector, Land Acquisition, Anantnag and another v. M/s MST Katiji and others	1987 (2) SCC 107	Positive	Quoted to support the principle that condonation of delay should be considered to prevent miscarriage of justice; delays are not to bar meritorious matters.
Vedabai alias Vaijayantabhai Baburao Patil v. Shantharam Baburao Patil and Others	2001 (9) SCC 106	Positive	Cited as supporting the grant of condonation where delay would deprive a party of vindicating their meritorious issues.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ## **`OP (DRT) NO. 72 OF 2024`** ## **`SA No.237/2023 OF THE DEBT RECOVERY TRIBUNAL-2,`** ## **`ERNAKULAM`** ## **`PETITIONER/APPLICANT:`** ``` SHEEBA DILEEP, AGED 49 YEARS W/O. DILEEP KUMAR ANIKUNNEL HOUSE NEDUMKANDAM POST CHAKKAKANAM, IDUKKI, PIN – 685 553. ``` ``` BY ADVS. SADCHITH.P.KURUP C.P.ANIL RAJ SIVA SURESH RESHMA RAJ ``` ## **`RESPONDENTS:`** - **`1 THE SOUTH INDIAN BANK LTD CENTER POINT, NEDUMKANDAM BRANCH IDUKKI DISTRICT , REP. BY ITS BRANCH MANAGER, PIN – 685 553.`** - **`2 THE AUTHORISED OFFICER THE SOUTH INDIAN BANK LTD. MUVATTUPUZHA REGIONAL OFFICE 1ST FLOOR, KAVIKUNNEL CHAMBERS T.B JUNCTION, MUVATTUPUZHA, PIN – 686 661.`** - **`3 SANIYO JOSEPH S/O. JOSEPH ANTONY, NELLIYEKUNNEL HOUSE, NEDUMKANDOM.P.O., IDUKKI, PIN – 685 553.`** - **`4 MRS. NAVA JYOTHI W/O. GANESH, PUTHENPURAYIL HOUSE, NEDUMKANDOM.P.O., IDUKKI, PIN – 685 553.`** O.P.(DRT) No.72 of 2024 : 2 : ## **`BY ADVS.`** ``` AMBILY S RUPA R. NAIR(K/001021/2023) RUBAN JOE TONIYO(K/002926/2022) MATHEW JOSEPH BALUMMEL(K/001219/2019) K.K.CHANDRAN PILLAI (SR.)(C-41) ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(DRT) No.72 of 2024 : 3 : ## **JUDGMENT** Dated this the 16[th] day of February, 2024 The petitioner claims to be an innocent purchaser of the property belonging to the 4[th] respondent. The purchase was in the year 2017. 2. According to the petitioner, she had purchased the said property without knowing the fact that it is mortgaged by the 3[rd] respondent and his father to the 2[nd] respondent-Bank. When coercive proceedings were initiated by the Bank for selling the property, the petitioner filed I.A No.1581/2023 in S.A No.237/2023 before the Debts Recovery Tribunal-2, Ernakulam. The Debts Recovery Tribunal dismissed the I.A. 3. Aggrieved by the order in I.A No.1581/2023, the petitioner preferred an appeal before the Debts Recovery Appellate Tribunal invoking Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner also filed a petition to condone the delay of 21 days in preferring the appeal against order dated O.P.(DRT) No.72 of 2024 : 4 : 09.06.2023. The Debts Recovery Appellate Tribunal dismissed the I.A for condonation of delay holding that the petitioner has not given any particulars to facilitate the computation of delay. The petitioner is challenging Ext.P13 order dated 05.01.2024 in I.A No.342/2023 in AIR No.1105/2023 preferred by the petitioner. 4. Counsel appearing for the petitioner would point out that before the Debts Recovery Appellate Tribunal, even the Counsel appearing for the respondent had no serious objection regarding condonation of delay, because the delay was only of a period of 21 days. The Tribunal did not go into the issue as to whether the duration of delay is short or long. In case of a short delay, the Tribunal ought to have condoned the delay on terms. The valuable right of the petitioner conferred under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 will be rendered nugatory if the delay is not condoned. 5. Counsel appearing for the petitioner relied on the judgment of the Hon'ble Appex Court in _**Collector, Land Acquisition, Anantnag and another v. M/s MST Katiji and**_ O.P.(DRT) No.72 of 2024 : 5 : _**others** [1987 (2) SCC 107]_ which held that ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Counsel for petitioner also relied on the judgment of Ho'ble Apex Court in _**Vedabai alias Vaijayantabhai Baburao patil v. Shantharam Baburao patil and Others** [2001 (9) SCC106]._ _6._ Standing Counsel representing the respondents submitted that the petitioner had initially filed S.A 51/2019, which was dismissed by the Debts Recovery Tribunal. The petitioner has not challenged the order in the said S.A. Subsequently, the present S.A No.237/2003 has been filed with the same cause of action and relief. The issue is barred by res judicata, contended the Standing Counsel. 7. I have heard the learnd Counsel appearing for the petitioner and the learned Standing Counsel representing respondents 1 and 2. O.P.(DRT) No.72 of 2024 : 6 : 8. On the application to condone delay, the Tribunal noted that perusal of the affidavit filed by the petitioner would show that the petitioner had approached the Court stating that the delay is due to financial constraints. The Tribunal noted that the affidavit is silent as to the date on which the petitioner/appellant approached the Court and on what date the Court decided the matter. The Tribunal held that without giving such particulars, it is not possible to compute the delay. 9. The Tribunal found that as per the provisions of the Legal Service Authority Act, the petitioner is entitled to get free legal assistance and therefore, the ground of financial constraints cannot be accepted. Taking into consideration the facts of the case, I do not find any illegality or irregularity in Ext.P13 order passed by the Debts Recovery Appellate Tribunal. The reasons given by the Tribunal for not condoning the delay are good and sufficent. O.P.(DRT) is therefore dismissed. Sd/- **N. NAGARESH JUDGE** AMR O.P.(DRT) No.72 of 2024 : 7 : ## **`APPENDIX OF OP (DRT) 72/2024`** ## **`PETITIONER’S EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE ORDER DATED 31.03.2023 PASSED BY THE DRT-2, ERNAKULAM IN SA NO. 51/2019. ``` ``` Exhibit P2TRUE COPY OF THE JUDGMENT DATED 18.04.2023 IN W.P(C) NO. 13581 OF 2023 OF THIS HON'BLE COURT. ``` - **`Exhibit P3 TRUE COPY OF THE NOTICE DATED 08.05.2023 ISSUED BY THE ADVOCATE COMMISSIONER.`** - **`Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED 16.05.2023 IN W.P(C) NO. 15705 OF 2023 OF THIS HON'BLE COURT.`** - **`Exhibit P5 TRUE COPY OF THE S.A NO 237 OF 2023 WITHOUT ANNEXURES FILED BEFORE DRT - 2 ERNAKULAM.`** - **`Exhibit P6 TRUE COPY OF THE I.A NO 1581 OF 2023 FOR STAY FILED BEFORE DRT-2 ERNAKULAM.`** ``` Exhibit P7TRUE COPY OF THE JUDGMENT DATED 23.05.2023 IN W.P(C) NO. 15705 OF 2023 OF THIS HON'BLE COURT. ``` - **`Exhibit P8 A TRUE COPY OF THE ORDER DATED 09.06.2023 IN I.A NO 1581 OF 2023 FOR STAY BY BEFORE DRT - 2 ERNAKULAM.`** - **`Exhibit P9 A TRUE COPY OF THE APPEAL MEMORANDUM (DIARY NO. 1105/2023) DATED 9/8/2023 IN DRAT CHENNAI.`** - **`Exhibit P10 A TRUE COPY OF DELAY PETITION IA 342 OF 23 ON THE FILE OF THE DRAT CHENNAI.`** - **`Exhibit P11 A TRUE COPY OF STAY PETITION FILED IN DRAT CHENNAI.`** O.P.(DRT) No.72 of 2024 : 8 : ``` Exhibit P12A TRUE COPY OF THE MEDICAL CERTIFICATE DATED12.2.2024ISSUEDBY DR. SREEDEPAN M. Exhibit P13A TRUE COPY OF THE ORDER DATED 5.1.2024 IN IA 342/23 IN AIR 1105/23 IN DRAT CHENNNAI. ```