FINAL ORDER
(25.03.2019)
The present S.A. was filed on 30.01.2019 and the applicant under section 5 of the Limitation Act is also enclosed along with S.A.
Perused the application under section 5 of the Limitation Act, the applicant states that the notice u/s 13
(2) of the Act, 2002 was issued on 01.02.2018, on 12.04.2018 notice u/s 13 (4) of the Act, 2002 was issued. It is admitted by the S.A. applicant that u/s 14 of the Act, the respondent obtained an order from DM on 24.05.2018. The applicant admitted himself that he filed a writ petition before the Hon'ble Rajasthan High Court, Jaipur, which was registered as SBCW no. 17889/18 by which
1
they have challenged the proceedings of SARFESAI, Act 2002 and vide order dt. 19.01.2019 Hon'ble High Court gave liberty to file the S.A. before the appropriate forum. Copy of the order dt. 19.01.2019 was made available to the applicant on 25.01.2019, on 26.01.2019 there was a national holiday and on 27.01.2019 it was Sunday. On 28.01.2019 the Tribunal remained closed due to sad demise of Ex-Chief Justice of Rajasthan Sh. Jagdish Bhalla, so the S.A. was filed on 29.01.2019.
On these grounds the S.A. applicant prayed that there is not delay and prayed that delay if any is on account of bonafide reasons and the same is required to the condoned.
Perused the certified copy of the order passed on SBCW no. 17889/18 and found that the proceedings u/s 13
(2) of the SARFESAI, Act dt. 01.02.2018 was challenged before the Hon'ble High Court of Rajasthan at Jaipur. It was observed by the Hon'ble Justice that "Since, the petitioners are having alternative efficacious remedy under section 17 of the act of 2002, I am not inclined to exercise the extraordinary jurisdiction of this court under article 226 of the Constitution of India." It was further observed by the Hon'ble Justice that the present petition is dismissed with liberty to the petitioner to file the appeal before Debts Recovery Tribunal (DRT), as provided under act, 2002 and the interim order dt. 10.08.2018 was allowed to be continue till 31.01.2019.
From the order or Hon'ble High court, it is clear that the applicant is not approached the proper forum i.e. Debts Recovery Tribunal (DRT) but approach the Hon'ble High Court at Jaipur and challenged the notice u/s 13 (2) of the SARFESAI, Act, which was not a proper forum as to pointed by the Hon'ble Justice.
After having thoughtful consideration of the order of Hon'ble High Court dt. 19.01.2019 and I am of the view that the S.A. appellant has delayed right to challenge the notice u/s 13 (2) of the Act, 2002 well within time by way of approaching to the Hon'ble High Court, though he got an order, a liberty to file appeal before this Tribunal but I do not find any reason to condon the delay because the remedy which he could have sought just after receiving the different notices under this Act, before this Tribunal. I
2
agree that the Ld. Counsel for the respondent bank that the S.A. applicant got sympathy of the Hon'ble High Court by way of filling writ petition on false ground along with concealment of the facts and therefore, I find no reason to accept that applicant come before this Tribunal with the clean hands or even they have approach to the Hon'ble High Court also with the clean hands because as per reply the respondent bank has issued various notices since 2014 & 2015 as well as in the 2017 & 2018 also, therefore, the S.A. is time barred is not liable to be entertain. Accordingly, the S.A. is dismissed.
Copy of the order be given free to the parties. File be consigned to record.
(Vivek Saxena)
Presiding Officer
DRT, Jaipur
(Pronounced in open court)
Dated: 25.03.2019
3