The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8731 of 2024 Manoj Kumar Dash ….. Petitioner Mr. Anjan Kumar Biswal, Advocate -versus- 1. State Bank of India, Jawaharlal Nehru Marg, Bhubaneswar 2. Sanjib Kumar Rout, Managing Trustee of Rout Education Trust, Bhubaneswar 3. Jayashree Sahu 4. Dusmanta Nayak 5. Jyotirmaya Dash 6. Nawal Kumar Agarwal ..... Opp. Parties CORAM: THE HON'BLE MR. JUSTICE S.K. SAHOO THE HON'BLE MR. JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 23.09.2024 01. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard learned counsel for the petitioner. Page 1 of 10 This petitioner, Manoj Kumar Dash has filed this writ petition challenging the order dated 05.09.2023 of the learned Debts Recovery Appellate Tribunal at Kolkata (for short, ‘D.R.A.T., Kolkata’) in Appeal No.41 of 2020 along with Appeal No.47 of 2019, Appeal No.51 of 2019 and Appeal No.29 of 2020 and thereby directing the opp. parties to comply with the order dated 27.04.2019 passed by the learned Debts Recovery Tribunal, Cuttack (for short, D.R.T., Cuttack’) in SARFAESI application vide S.A. No.03 of 2019. It appears that the petitioner approached the learned D.R.T., Cuttack by filing an application under section 17 of SARFAESI Act challenging the sale deeds and sale certificates issued in favour of opp. party no.6 by the opp. party no.1 and to redeem the property in his favour. The application was filed with an application for condonation of delay which was registered as M.A. No.1162 of 2017 and since there was delay, Dy. No.745 of 2017 was registered instead of registering S.A. It appears that there was a delay of 1327 days in preferring the application under section 17 of the SARFAESI Act and the learned D.R.T., Cuttack, as per order dated 10.01.2019 in M.A. No.1162 of 2017, has been pleased to hold that the primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for Page 2 of 10 approaching the Court in different situations is not because on the expiry of such time, a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of a dilatory strategy, the Court must show utmost consideration to the suitor. Accordingly, the learned D.R.T., Cuttack allowed M.A. No.1162 of 2017 and condoned the delay in filing the appeal and directed the Registry to register the S.A. and thereby S.A. No.3 of 2019 was registered. S.A. No.03 of 2019 filed by the petitioner was disposed of on 27.04.2019 by the learned D.R.T., Cuttack and the auction sale conducted by the Bank in favour of the opp. parties nos.2 to 6 and the notices under sections 13(2) and 13(4) of the SARFAESI Act and the sale notice was quashed and the amount deposited by the auction purchasers i.e. opp. parties nos.2 to 6 were directed to be returned to them at the fixed deposit interest within 30 days from the date of receipt of the order and the petitioner was directed to pay the total auction amount along with interest, cost and expenses as per the calculation of the Bank within three months from the receipt of the order and the Bank was directed to supply the details of the amount to be paid by the petitioner Page 3 of 10 within 30 days from the date of receipt of the order and the petitioner was directed to pay the amount within another two months from the date of the receipt of the calculation sheet from the bank and the Bank was directed to deliver all the documents after receipt of the amount from the petitioner. It appears that Appeal No.41 of 2020 was filed before the D.R.A.T., Kolkata challenging the order dated 10.01.2019 passed by the learned D.R.T., Cuttack in M.A. No.1162 of 2017 arising out of Dy. No.745 of 2017 and the Appeal No.47 of 2019, Appeal No.51 of 2019 and Appeal No.29 of 2020 were filed challenging the order dated 27.04.2019 passed in S.A. No.03 of 2019. The learned D.R.A.T., Kolkata found that there was a delay of 1327 days in preferring the application under section 17 of the SARFAESI Act before the D.R.T., Cuttack and after disposal of the M.A., no notice has been issued to the auction purchaser i.e. opp. parties nos.2 to 6, who could have appeared and contested the matter. The learned D.R.A.T., Kolkata has been pleased to hold that the statutory period for filing application under section 17 of the SARFAESI Act is 45 days and the case of the petitioner was that he was in judicial custody from 14.09.2014 and he was released on 23.11.2016, for which the delay occasioned in fling the S.A. on Page 4 of 10 12.12.2017. The learned D.R.A.T., Kolkata also took into account that in the meantime, the SARFAESI proceeding has been concluded, sale certificate was registered in favour of the opp. parties nos.2 to 6 and there is nothing in the application filed for condonation of delay that no notice was ever served upon the petitioner and that he had no knowledge even after publication of notice and therefore, it cannot be said that the petitioner was not having any knowledge of the SARFAESI proceeding drawn by the bank. The learned D.R.A.T., Kolkata has further held that the learned D.R.T., Cuttack was under an obligation to find out as to whether the grounds taken by the SARFAESI applicant were supported by the material available on record, but without entering into the merits for condonation of delay and without assigning any reason for condonation of delay, M.A. was allowed, which was erroneous exercise of power by the learned D.R.T., Cuttack and accordingly, the learned D.R.A.T., Kolkata was of the view that SARFAESI applicant miserably failed to make out any ground of condonation of delay in filing the application under section 17 of the SARFAESI Act and therefore, the order dated 10.01.2019 passed by the learned D.R.T., Cuttack was set aside and the M.A. No.1162 of 2017 filed by the petitioner was also Page 5 of 10 dismissed and consequently the order dated 27.07.2019 passed by the learned D.R.T., Cuttack in S.A. No.03 of 2019 was set aside. Mr. A.K. Biswal, learned counsel for the petitioner argued that the learned D.R.T., Cuttack has assigned cogent reasons for condoning the delay and therefore, the learned D.R.A.T., Kolkata was not justified in setting aside the same. Admittedly, there is a delay of 1327 days in preferring the application under section 17 of the SARFAESI Act. Even though it was the case of the petitioner that he was in judicial custody from 14.09.2014 to 23.11.2016, but the S.A. was filed on 12.12.2017, which was more than one year after the petitioner was released from judicial custody. No explanation is forthcoming in the M.A. which was filed by the petitioner for condonation of delay. Moreover, in the meantime, the SARFAESI proceeding has been finalized and sale certificate has been issued. There is no dispute that much prior to the filing of the application under section 17 of the SARFAESI Act in the year 2017 before the learned D.R.T., Cuttack, sale notice was issued on 12.04.2014, auction sale was held on 20.05.2014, sale certificate was issued on 01.08.2014 and physical possession was delivered to the auction purchaser on 18.08.2014 and sale certificate was Page 6 of 10 registered on 21.08.2014. The principles governing the law of limitation are not vexatious or superficial creation of legislature. Periods of limitation prescribed for different kind of cases are carefully provided taking into account the nature of lis. The litigants are not free to knock the portals of the Courts at their sweet will when they wake up from deep slumber; rather they are required to abide by the prescription of the law of limitation. It is no more res integra that a party has to explain the reason behind each day of delay beyond the period of limitation and failure on his part to provide satisfactory explanation shall render his case futile. The legal world is well-versed to a principle that every litigant must be conscious, active and vigilant for enforcement of his rights. The law protects the vigilant litigants and not the ones who sleep over their rights, the essence of which is reflected in the Latin maxim ‘vigilantibus non dormientibus jura subveniunt’. In the case of Chennai Metropolitan Water Supply & Sewerage Board -Vrs.- T.T. Murali Babu reported in (2014) 4 Supreme Court Cases 108, the Hon’ble Supreme Court discussed the effect of laches in litigation and held as follows: “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation Page 7 of 10 the rights of offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to the citizens but protect simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent absolutely to his duty and nurturing a careless employee being Page 8 of 10 lackadaisical attitude to the responsibility had the remained unauthorisedly absent on pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with “Kumbhakarna” or for that matter “Rip Van Winkle”. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” Therefore, taking into account the inordinate and unexplained period of delay on the part of the petitioner in approaching the learned D.R.T., Cuttack particularly when the SARFAESI proceeding was concluded and sale certificate was registered in favour of the auction purchaser so also the aforesaid findings of the Hon’ble Supreme Court, we find that the learned D.R.A.T., Kolkata is quite justified in passing the impugned order and holding that allowing the M.A. was an erroneous exercise of power by the learned D.R.T., Cuttack. We do not find any merits in the writ petition and accordingly, Page 9 of 10 the same stands dismissed. The pending application (s), if any, shall also stand dismissed. Issue urgent certified copy as per Rules. Judge ( S.K. Sahoo) sipun (Chittaranjan Dash) Judge Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Sep-2024 17:07:59 Page 10 of 10