N.V. ANJARIA, J.

Heard learned advocate Mr.Bharat Jani for the petitioner and learned advocate Ms.Nalini Lodha for the respondent No.1 Bank. For the second respondent-Debt Recovery Appellate Tribunal, though served, none appeared.

2. Present petition is directed against order dated 06th June, 2014 passed by the Debts Recovery Appellate Tribunal, Mumbai rejecting the application of condonation of delay filed by the petitioner. The delay was of 112 days and the principal ground furnished for condoning it was the reason of financial constraint.

3. The facts in the background may be noticed in brief. The petitioner who was engaged in the business of Timber, appears to have been granted various credit facilities by the respondent No.1- Punjab National Bank. As the dues could not be cleared and the petitioner failed to repay the assistance to the Bank, Bank invoked the powers of recovery under the SARFAESI Act, 2002, issued notice under Section 13(2) of the said Act, and thereafter a further notice for possession under Section 13(4) of the Act was issued. The said measures taken by the respondent Bank came to be challenged by the petitioner by filing Securitisation Application No.63 of 2009 on 14th November, 2009. On 29th October, 2012, the Tribunal dismissed the said Securitisation Application.

3.1 Against the said order of Debts Recovery Tribunal, petitioner preferred Appeal No.282 of 2013 along with Miscellaneous Application No.677 of 2013 before the Appellate Tribunal under Section 18 of the SARFAESI Act, 2002, for condonation of delay. Miscellaneous Application No.676 of 2013 was also filed for waiver of pre-deposit of the amount. It further appears that the proceedings before the Board of Industrial and Financial Reconstruction (BIFR) were taken out to declare the first petitioner company as sick industry, however the Reference and the Appeal came to be dismissed. Special Civil Application NO.17465 of 2014 is pending, which are the facts to be noted for completing narration.

3.2 Section 18 of the SARFAESI Act, 2002 deals with appeal before the Appellate Tribunal. The period of 30 days is provided to prefer appeal. Section 18 of the Act reads as under.

“18. Appeal to Appellate Authority.-(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:

Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. Of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:

Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred to in the second proviso.

(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and rules made thereunder.”

3.3 Looking at the condonation of delay application, seeking to explain the delay of 112 days, following main reasons are stated in support of condonation of delay-(i) there was a sister concern of the appellant company named Nakoda Logistics which was financially stronger than the petitioner, yet was proceeded against under the SARFAESI Act; (ii) Appellants were busy and they were required to undertake day-to-day follow up of the repayment; (iii) Appeal had to be filed at Mumbai which required at least three days to instruct lawyer; (iv) Due to winter holidays lawyers were out of town; (v) In the meantime, Review Application was preferred before the Tribunal as it w