SOUMEN SEN,J - (1.) THE order of rejection of the application for condonation of delay of 7 years 11 months and 19 days by the guarantor petitioner in preferring an appeal against the order dated 29th July, 2003 passed by the Debt Recovery Tribunal (hereinafter referred to as "DRT) in O.A. No.131 of 2001 is the subject-matter of challenge in this revisional application.
(2.) THE learned Debt Recovery Appellate Tribunal (hereinafter referred as "DRAT ") rejected the said application observing that the explanation and reason given for delay does not inspire the confidence of the Tribunal. THE petitioners are the guarantors. THE petitioners duly contested the original recovery proceeding initiated under Section 19 of the Recovery of Debts and Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "RDB " Act). THE certificate was issued on 6th August, 2003. Immediately thereafter execution proceeding was initiated. A period little short of three years from the date of issuance of certificate, the guarantors on April 5, 2006 filed an application before the learned Recovery Officer contending that the said Officer has no jurisdiction to execute the said certificate. Subsequently, on 13th July, 2006, the petitioners took out another inter alia application before the learned Presiding Officer under Section 19(25) of the RDB Act praying, inter alia, for an order of injunction restraining the Recovery Officer from proceeding with the execution of the certificate. On 20th March, 2007, the petitioners applied before the Recovery Officer questioning its jurisdiction to proceed against one of the properties which is situated at Jharkhand. The Presiding Officer refused to grant any stay in connection with the application filed on 13th July, 2006 and by a subsequent order dated 12th April, 2007, the said application for stay of execution was rejected. Against the order of the Presiding Officer in dismissing the application for stay of the execution proceeding, an appeal was affirmed by the DRAT on 12th June, 2008. The said order of the DRAT was unsuccessfully challenged in a revisional application in this Court on 21st July, 2008. The revisional application was dismissed on 16th July, 2009. A special leave petition was filed on 10th September, 2009 against the said order of dismissal. The Hon 'ble Supreme Court admitted the said special leave petition and granted an order of stay of recovery proceedings. The petitioner contended that during the pendency of the special leave petition in or about December 20, 2010 the petitioner during consultation with the Senior Counsel was advised to challenge the judgment and order dated 29th July, 2003 before the learned Appellate Tribunal and upon receiving such advice, steps were taken to file the appeal with a prayer for condonation of delay. The said application was filed in 2011 and the delay between December 20, 2010 and May, 2011 was sought to be explained by stating that after receiving advice during consultation one of the guarantors, namely, Mr. Nabarun Bhattacharyya felt serious ill and as such he could not contact the learned Advocate for the petitioner between December 20, 2010 and May, 2011. It was only on 26th May, 2011 he could give instruction to his learned Advocate for drafting and filing the said appeal. Such appeal was filed after reopening the Court after summer vacation in June, 2011. This is the explanation in substance for condonation of delay of 7 years 6 months and 19 days (although in the petition the delay is mentioned as of 7 years and 11 months). It is an admitted fact that till the filing of the special leave petition in the year 2010, the petitioner did not feel it necessary to prefer an appeal against the certificate. The said certificate was issued on contested hearing. The petitioner was aware of the said judgment and certificate but did not prefer an appeal within the period of 45 days from the date on which a copy of the said order made or deem to have been made by the Tribunal, is received by the petitioner in terms of Section 20(3) of the DRT Act, 1993. In fact, the Appellate Tribunal may entertain an appeal after the expiry of the said period of 45 days if it is satisfied that there was sufficient cause for not filing it within the prescribed period. Section 21 of the DRT Act, 1993 requires deposit with the Appellate Tribunal 75 per cent of the amount of debt so due from him as determined by the Tribunal under Section 19 provided that the Appellate Tribunal may for reasons to be recorded in writing waive or reduce the amount to be deposited under the said section. In the entire period of 7 years, the petitioner contested the recovery proceeding but did not challenge the judgment culminated in issuance of the certificates. The reason is obvious. In order to resist any application before the Recovery Officer for stay of execution proceeding, the pre-deposit under Section 21 is not required to be made and the judgment-debtor can delay the said proceeding which would be as good as an order of stay without any pre-deposit. The petitioner was successful in keeping the execution proceeding in abeyance for 7 years without putting any money. The subject-matter of challenge in the special leave petition is not the judgment and order passed by the DRT on 29th July, 2003. In fact, the original application was filed in the year 2003 for recovery of a sum of Rs.5,85,70,413/- against the petitioners and the respondent Nos.4 & 5. It appears that pursuant to an amicable settlement arrived at between the ICICI Bank Ltd. and Oriental Bank of Commerce out of total decreetal amount of Rs.5,85,70,413/-, the respondent No.2, ICICI Bank has received a sum of Rs.3.35 crores. The balance amount that is Rs.2.35 crores as on 31st December, 2004 along with interests, charge costs etc. are still due and payable by the petitioners along with other judgment-debtors to the opposite party No.1. During the execution of the said certificate, the petitioner filed an applications in the year 2006 objecting to such executions on technical grounds. The certificate on merit was not under challenge till the filing of the application under Section 5 of the Limitation Act in June, 2011. The learned Advocate for the petitioner submits that liberal approach should be taken in considering the said application under Section 5 of the Limitation Act. It is argued that the petitioners have been diligent in pursuing their remedy. The application resisting execution of the said certificate was although filed almost after two and half years but there has been no lack of due diligence on the part of petitioners in proceeding with the matter. The petitioners incidentally submitted that one of the main contentions in the appeal would be that by reason of a compromise between ICICI Bank and Oriental Bank of Commerce, the petitioners as guarantors stand discharged of their liability. In fact, there is a novation of contract. The said compromise has discharged the guarantors from all liability.
(3.) THE petitioners submitted that unless the petitioners are allowed to contest the said appeal, the petitioners would be prevented from raising such questions and there are arguable points which are required to be considered and decided on merits. THE proposed grounds of challenge if they are allowed to prefer an appeal different from the grounds urged in the Special Leave Petition (SLP) pending before the Hon 'ble Supreme Court. THE subject matter of SLP and the subject matter of challenge in the appeal are different. Per contra, the learned Advocate for the opposite party No.1 submits that the filing of this application under Section 5 of the Limitation Act after an inordinate delay of more than 7 years is another ploy to resist the execution of the certificate. It is submitted that the said certificate was issued on contest and the petitioner was even aware of the settlement arrived at between the ICICI Bank and Oriental Bank of Commerce. There has been no contemporaneous challenge to the said certificate and the order recording such compromise between the ICICI Bank and Oriental Bank of Commerce. In fact, by reason of such compromise, the liability of the sureties have been substantially reduced. Moreover, it is continuing guarantee and the guarantee documents provide that any satisfaction or compromise between the parties would not discharge the guarantor-petitioners from their obligation to fully discharge the debts. It is submitted that such inordinate delay is inexcusable and the petitioner is not entitled to condonation of delay after the lapse of more than 7 years.;