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IN THE HIGH COURT OF ORISSA, CUTTACK
B.P. Routray, J.
Suresh Agarwal - Appellant
Versus
M/s. Ores Enterprises Private Limited & Ors. - Respondents
W. P. (C) No. 30466 of 2020
Decided On : 15-04-2021
Limitation Act - Recovery of Debts and Bankruptcy Act - Sections 25, 28, 30 - The court discussed the applicability of Section 5 of the Limitation Act to an appeal under Section 30 of the Recovery of Debts and Bankruptcy Act. It highlighted that the Debt Recovery Tribunal has no power to condone the delay in filing the appeal beyond the prescribed period of 30 days from the date of the order of the Recovery Officer. The impugned order of the Debt Recovery Appellate Tribunal permitting the filing of an appeal after the expiry of the 30-day period was set aside.
Fact of the Case:
The case involved a petition challenging an order of the Debts Recovery Appellate Tribunal (DRAT), Kolkata, which permitted the filing of an appeal against the proceedings of the Recovery Officer before the Debt Recovery Tribunal (DRT) after the expiry of the 30-day period.
Finding of the Court:
The court found that the Debt Recovery Tribunal has no power to condone the delay in filing the appeal beyond the prescribed period of 30 days from the date of the order of the Recovery Officer. The impugned order of the Debt Recovery Appellate Tribunal was set aside, and the pending appeal before the DRT was disposed of.
Issues: The key issue was the applicability of Section 5 of the Limitation Act to an appeal under Section 30 of the Recovery of Debts and Bankruptcy Act, and whether the Debt Recovery Appellate Tribunal had the power to permit the filing of an appeal after the expiry of the 30-day period.
Ratio Decidendi: The court held that the Debt Recovery Tribunal has no power to condone the delay in filing the appeal beyond the prescribed period of 30 days from the date of the order of the Recovery Officer. It emphasized that the impugned order of the Debt Recovery Appellate Tribunal permitting the filing of an appeal after the expiry of the 30-day period was unsustainable in law.
Final Decision: The writ petition was allowed, the impugned order of the Debt Recovery Appellate Tribunal was set aside, and the pending appeal before the DRT was disposed of. No order as to costs was made.
ORDER
1. This matter is taken up by video conferencing mode.
2. This is a petition challenging an order dated 6th October 2020 of the Debts Recovery Appellate Tribunal (DRAT), Kolkata whereby an order dated 28th June 2019 of the Debts Recovery Tribunal (DRT), Cuttack in MA No.89 of 2019 arising out of OA No.381 of 2011 was set aside and Opposite Party No.1-M/s. Ores Enterprises Pvt. Ltd was permitted to file an appeal against the proceedings of the Recovery Officer (RO), DRT, Cuttack before the DRT for disposal of such appeal within four weeks from the date of filing of the appeal.
3. On 18th November 2020, while directing notice to be issued in this case, the following order was passed:
'The Court is convened through Video Conferencing mode.
Heard learned counsel for the petitioner.
The contention of learned counsel for the petitioner is that the Debt Recovery Appellate Tribunal, Kolkata in the impugned order dated 06.10.2020 was not justified in directing that the time spent by the opposite party-M/s. Ores Enterprises (P) Ltd. in the DRT and DRAT shall be exempted for the purpose of hearing of the appeal before the learned Presiding Officer, DRT, Cuttack. Learned counsel for the petitioner citing a decision in the case of International Asset Reconstruction Company of India Limited vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Another, reported in (2017) 16 SCC 137, argued that the Hon'ble Supreme Court has held that the prescribed period of 30 days for preferring appeal against order of Recovery officer under Sections 25 to 28 cannot be condoned by application of Section 5 of the Limitation Act for the reason that there is no power with the Recovery Officer for condonation of delay. Delay in the present case, according to the petitioner, is more than one year.
Issue notice.
Notice be issued to the opposite parties by Speed Post with A.D. returnable by 13.01.2021. Requisites for such notice be filed within a week.
List this matter on 13.01.2021.
It is directed that in the meantime operation of the order dated 06.10.2020 (Annexure-14) passed by the Debt Recovery Appellate Tribunal, Kolkata in O.A. No.381 of 2011 shall remain stayed.
As lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this order available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.'
4. The background facts are that M/s. Anmol International Pvt. Ltd. (Opposite Party No.2) had borrowed a loan from the Housing and Urban Development Corporation Limited (HUDCO) (Opposite Party No.5) creating an equitable mortgage of the property situated at Udit Nagar, Khata No.365/388, Plot No.554/1886, area Ac.0.255 Decimal (property in question). Upon Opposite Party No.2 defaulting in payment of the loan, proceedings were initiated against it, which culminated in a decree by the DRT, Cuttack on 9th November 2016 in O.A. No.381 of 2011 (HUDCO v. M/s.Anmol International Pvt. Ltd. and others).
5. In the above proceedings, the present Opposite Party No.1 i.e. M/s. Ores Enterprises Pvt. Ltd. was Opposite Party No.5, as a guarantor for the loan availed of by Opposite Party No.2.
6. Pursuant to the said decree, the RO, DRT, Cuttack issued a proclamation of sale in R.P. No.87/2016/CTC putting up the property in question for auction sale with a reserve price of Rs.5,77,82,000/-. In that notice, it was stated that the outstanding dues as far as Opposite Party No.2 is concerned was Rs.10,22,30,746.00 with p&fi interest @ 11.25 % per annum from 5th February, 2019 till realization of the dues.
7. When the public auction was held on 4th February 2019, the RO, DRT, Cuttack finalized the sale in favour of the present Petitioner, who was the highest bidder with an amount of Rs.5,83,32,000/-, which was above the reserve price.
8. According to the Petitioner, Opposite Party No.2 filed MA No.8 of 2019 before the RO to set aside t
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