Dr.A.S.Pragasam V/S Indian Bank and ors -2055 days delay

IA 1586/2008 (Delay):

1.         This Interlocutory Application is filed seeking to condone the delay of 2055 days in filing the above appeal.

2.         The facts of the case may be stated in brief as follows:

The petitioner had availed a loan of Rs.32,00,000/- from the respondent bank for the production of a Tamil film titled “Mukkulathor”.  The said loan was sanctioned with an understanding that the loan would be repaid in one lump sum at the time of the release of the picture. Knowing fully well that in the matter of lending for cinema projects, repayment of the loan amount is not possible before the release of the picture, the respondent bank introduced a covenant that the loan should be repaid in one lump sum before the release of the picture or before six months from the date of the loan, whichever was earlier stating that the norms did require such a covenant.  The picture negatives of the said film are with Vijaya Color Laboratory and a charge had been created in favour of the respondent bank over the picture negatives of the said film and the same is entered in the Laboratories records as per trade practice.  The petitioner executed all the loan documents on 3.11.1995 but the respondent bank did not release the entire amount as agreed to and this had caused loss, hardship and mental agony to the petitioner.  Apart from the picture negatives of the film, the loan was further secured by equitable mortgage of the property of an extent of 5.28 acres situated at No.52, Allathur, Madura Pallathur Village, Saidapet Taluk, Chengalpet District.  The respondent bank which was keen on proceeding against the petitioner filed OA No.1132/2001 for the recovery of a sum of Rs.53,78,144/- on the file of DRT-II Chennai. The petitioner filed his written statement setting out the facts and raising various defences and had also requested for the statement of accounts, which were not furnished to him.  In the meanwhile the petitioner had to undergo a bye pass surgery and therefore he could not attend the court proceedings and was fully dependant on his counsel.  The Tribunal below without properly appreciating the facts of the case had allowed the OA as prayed for by order dated 4.10.2002.  The passing of the final order was not intimated by the erstwhile counsel to the petitioner and whenever he asked his counsel he was informed that the matter is being contested by other defendants and that the OA is pending and no damage would be caused to the petitioner’s interest.  While so, to the shock and surprise of the petitioner the petitioner received an order of attachment dated 27.6.2008 in DRC No.68/2008 from the Recovery Officer, DRT-I Chennai claiming a sum of Rs.1,20,93,722.24 and that in the event of default the house property would be brought for sale.  Therefore the petitioner contacted his erstwhile counsel who still maintained to say that the OA was pending.  The petitioner therefore appointed a new counsel and arranged for obtaining of the certified copies of the relevant documents and came to know of the passing of final orders in the OA.  The petitioner came to know about the passing of final orders in the OA only after engaging the present counsel and that in the said process a delay of 2055 days has been occasioned in filing the appeal.  It is stated that the petitioner is a heart patient having undergone a bye pass surgery and that he was fully dependant on his counsel for the court proceedings and the delay in filing the appeal in the said circumstances is neither willful nor wanton but due to the reasons stated above.  The petitioner has prayed that the delay of 2055 days in filing the above appeal be condoned.

3.         The petitioner has set out his contentions in detail in the affidavit filed in support of his contentions and the same forms part of record.

4.         The respondent bank filed its counter stating that the appellant availed secured overdraft facility by executing the necessary documents and also hypothecated the negative rights of his film “Mukkulathor”.  The facility was also secured by the personal guarantee of Mr. Lakshmana Reddiar and mortgage of immovable property at 44, Alathur, Madura Pallathur village, Saidapet Taluk, Chengalpet District belonging to him.  The appellant accepted the terms and conditions of the sanction and executed the loan documents and therefore he now cannot say that the bank insisted for a new covenant to be included in the agreement and that the amounts were released as per the terms of the agreement.  The petitioner defaulted in repayment and the bank was constrained to recall the advance and also had to file the OA for the recovery of its dues.  The bank has charged interest as per the terms of the sanction and as per the guidelines of Reserve Bank of India.  The bank had furnished the statement of accounts as and when the same were required by the appellant and the appellant had also been provided with a copy of the documents including the statement of accounts filed before the tribunal.  It is stated that the affidavit is silent with regard to the dates on which the petitioner suffered a heart ailment and the date of bye pass surgery and the date of recovery.  The petitioner being a litigant and a prudent man ought to have been more vigilant in conducting his case and he cannot blame his counsel.  It is stated that the petitioner would have received the copy of the final order dispatched by the tribunal and it is not true that he came to know of the proceedings only when he received the attachment order dated 27.6.2008 in DRC No.68/2007 and that the petitioner with an ulterior motive has not chosen to contest the matter and has not participated in the DRC proceedings.  It is stated that the petitioner was under the impression that the bank will proceed only against the mortgaged property for the realization of its dues and the same would be sufficient to liquidate the dues of the bank.  It is stated that the mortgaged property could fetch only Rs.15,30,000/- against the recovery initiated for a sum of Rs.1,20,92,722.24 and as the petitioner’s property was identified and attached he is now making all sorts of allegations and has now come before this Tribunal with this application. The petitioner has not explained the delay and the application of the petitioner lacks bonafides and is liable to be dismissed.

5.         The respondent bank has set out its contentions in detail in the counter filed by it and the same forms part of record.

6.         Ld Counsel appearing on behalf of the petitioner stated that the petitioner has approached the bank for a loan for taking a movie and that due to circumstances beyond the petitioner’s control the movie could not be completed.  Ld. Counsel further stated that the petitioner got into difficulties as the bank did not release the full amount and further that the bank failed to release the funds as per the requirement.  Ld. Counsel further stated that the reason for the delay has been properly explained in the affidavit filed in support of the petition and added that no prejudice would be caused to the bank if the delay is condoned and that on the other hand if the delay is not condoned the petitioner would be put to great hardship and suffering and prayed that the IA filed for the condonation of delay may be allowed.

7.         Ld. Counsel appearing on behalf of the respondent bank took this tribunal through the factual matrix of the case and also drew the attention of this tribunal to paragraphs 8, 9 and 10 of the affidavit filed in support of the petition and stated that the petitioner has simply blamed his counsel and that merely blaming the counsel would not be a satisfactory reason for the explanation of the delay that had occurred in filing the appeal.  Ld. Counsel further stated that the petition is misconceived and that it has been filed only for the purpose of dragging on the case.  Ld. Counsel further stated that neither the reason for not filing the appeal within the time has been explained nor the delay of 2055 days that had occurred in filing the appeal has also been explained. Ld. Counsel further stated that the petitioner failed to file the appeal within the time limit and chose not to challenge any of the actions of the Ld. Recovery officer but sprung to action the moment when he came to know about the attachment of his property.  Ld. Counsel added that the petitioner has filed this petition only to delay the recovery process through attachment and that there are no boanfides in the petition and prayed that this IA should be dismissed with exemplary costs.  Ld. Counsel added the non production of the medical certificate would clearly show that the petitioner’s illness has not been proved.  The Ld. Counsel stated that the IA warrants only a dismissal.

8.         Heard the Ld. Counsel for the Petitioner and the Ld. Counsel for the respondent bank.

9.         A reading of paragraph 9 and 10 of the affidavit filed in support of the petition reveals that the petitioner’s counsel who appeared for him in the OA proceedings did not inform about the development of the case more particularly about the disposal of the OA itself.  It is also revealed that only when the petitioner received the order of attachment passed by the Recovery Officer he had come to know that the OA filed by the bank had been allowed against him and that his erstwhile counsel did not inform him and that he had to engage another counsel for the present proceedings.  It can be seen that the failure on the part of the Advocate to inform the petitioner about the development of the case and ultimately the allowing of the OA cannot at all be a reason for the condonation of the delay of 2055 days.  The plea of the petitioner that he was unwell and that he had undergone bye pass surgery cannot explain the delay of 2055 days i.e., nearly a period of 5½ years.

10.       Therefore from the fact that the failure on the part of the petitioner’s counsel to inform the petitioner about the OA proceedings and the petitioner’s heart ailment cannot explain the delay of a period of more than 5½ years this Tribunal is driven to conclude that the petitioner has failed to show that he was prevented by sufficient cause from filing this appeal within the time prescribed under law and that the delay of 2055 days thereafter has also not been properly explained and such being the case this Tribunal is drive to pass the following order:

“This petition is dismissed”

This Odrer was delivered by THE HON'BLE CHAIRPERSON of DRAT, Chennai ON 02/07/2012