Case Citation: (2024) ibclaw.

in 47 DRAT

BEFORE THE DEBTS RECOVERY

APPELLATE TRIBUNAL, AT: MUMBAI
Present: Mr Justice Ashok Menon, Chairperson
Misc. Appeal No. 130/2023

Between

Om Shiv Estate Pvt. Ltd. … Appellant/s

V/s.
Punjab National Bank …Respondent/s
Ms Poona Utekar along with Ms Shweta Nisar, i/b M/s C. J. Daveson,
Advocate for Appellant.
Mr Fraser M Alexander, Advocate for Respondent Bank.
-: Order dated: 06/05/2024 :-
The Appellants are in appeal impugning the order dated 09.01.2023 in
Interlocutory Applications (I.As.) Nos. 357 & 358 of 2022 in Original
Application (O.A.) No. 1415 of 2016 on the files of the Debts
Recovery Tribunal-I, Mumbai (D.R.T.) declining to condone the delay
in filing the written statement by Defendants Nos. 1 to 3.

2. The first Appellant is a company. Appellants Nos. 2 and 3 are

the directors of the company. The O.A. was filed on 27.07.2016 and
the Defendants were served. It is contended that the Defendants had
engaged a lawyer to represent them. However, they could not give
proper instructions to their lawyer as the second Defendant was
arrested on 29.12.2018 in a criminal case which was lodged against him
in the year 2015. He attempted to avoid arrest by applying for pre-
arrest bail but failed. After he was arrested, he was in detention for
more than two years and succeeded in getting bail from the High

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 Case Citation: (2024) ibclaw.in 47 DRAT

Court only on 29.01.2021. Because of his detention, he was not able

to attend to his ongoing litigations. The third Defendant is the wife of
the second Defendant. Though she was also a director of the
company, she was only acting according to the advice of the second
Defendant and hence could not give any instructions independently to
their counsel. That apart, there was also the Covid Pandemic which
prevented the Defendants from filing their written statement in time.
The whereabouts of their counsel were also not available and they had
engaged another counsel who filed a fresh vakalatnama on 22.12.2021.
It is also submitted that the order of the Hon’ble Supreme Court in
Suo Motu Writ Petition No. 03 of 2020 excluding the period from
15.03.2020 to 28.02.2022 and a further extension of 90 days excluding
the period of limitation would come to the assistance of the
Defendants. Hence, it is prayed that the delay may be condoned and
the written statement received.

3. The Respondent Punjab National Bank, the Applicant in the

O.A. vehemently opposed the applications stating that the
Defendants' attempt was only to delay the proceedings. It is pointed
out that notice was served together with the complete paper books on
the Defendants in January 2017, and that the written statement cannot
be received after a delay of four years.

4. The Ld. Presiding Officer after considering the rival submissions

and after perusal of the records and the statutory provisions dismissed
the applications holding that the Tribunal has no power or authority
to condone delay in filing the written statement. The Appellants are
aggrieved and hence, in appeal.
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 Case Citation: (2024) ibclaw.in 47 DRAT

5. Heard both sides. Records perused.

6. All the Defendants in the O.A. had entered an appearance on

13.01.2017 on being served with summons. The O.A. was adjourned
for filing of written statement. Sec. 19(5) (i) of the Recovery of the
Debts and Bankruptcy (“RDB Act”, for short) reads thus:
“ (5)(i) the defendant shall within a period of thirty days from the date
of service of summons, present a written statement of his defence
including claim for set-off under sub-section (6) or a counter-claim
under sub-section (8), if any, and such written statement shall be
accompanied with original documents or true copy thereof with the
leave of the Tribunal, relied on by the defendant in his defence:
PROVIDED that where the defendant fails to file the written
statement within the said period of thirty days, the Presiding Officer
may, in exceptional cases and in special circumstances to be recorded
in writing, extend the said period by such further period not exceeding
fifteen days to file the written statement of his defence;”
7. It is also to be observed that sub-section (5) was substituted by
way of amendment by Act 44 of 2016. Before the amendment, the
proviso provided the Presiding Officer to allow not more than two
extensions for the defendant to file the written statement. The
amendment has thus made the provisions more stringent. The
Presiding Officer can grant only one extension that too of only fifteen
days to file the written statement in exceptional cases or special
circumstances by reasons recorded in writing.

8. The Debts Recovery Tribunal (Procedure) Rules, 1993 also has

a similar provision in Rule 12 which reads thus:
“ 12. Filing of the written statement and other documents by the
defendant and by the applicant as a reply to the written
statement. — (1) The defendant may, within a period of thirty days
from the date of service of summons, file two complete sets of written
statement including claim for set-off or counter claim, if any, along
with documents in a paper book form.
(2) A copy of the written statement filed under sub-rule (1) shall be
served to the applicant.
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 Case Citation: (2024) ibclaw.in 47 DRAT
(3) If the defendant fails to file the written statement of his defence,
including claim for set-off or counter claim under sub-rule (1), if any,
within the period of thirty days, the Presiding Officer may in
exceptional cases and special circumstances to be recorded in writing,
extend the period, by such further period not exceeding fifteen days.”
9. The Rules were also amended with effect from 04.11.2016 by
way of an amendment restricting the powers of the Presiding Officer
to grant an extension of time to file a written statement.

10. The question that arises for consideration in this appeal is

whether the Tribunal has the power to grant an extension of time to
file a written statement under Sec. 5 of the Limitation Act. The powers
of the Tribunal under Sec. 5 to condone delay and extend time
stipulated in the statute has now been settled by the Hon’ble Supreme
Court in the decision of Standard Chartered Bank vs MSTC (2020)13
SCC 618 wherein it was held that the D.R.T. cannot extend the time
of thirty days to review its orders provided under Rule 5-A of the
D.R.T. Rules by resorting to Sec. 5 of the Limitation Act. Similarly,
the Hon’ble Supreme Court in International Asset Reconstruction Company
of India Ltd Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and
Ors (2017) 16 SCC 137 has held that when a special statute provides
for time to entertain an appeal under Sec.30 of the RDB Act, it cannot
be extended by resort to Sec. 5 of the Limitation Act.

11. The Hon’ble High Court of Madhya Pradesh has in Crest Steel
and Power Pvt. Ltd & Ors vs Punjab National Bank & Ors AIR OnLine
2018 MP 572, rejected the prayer to receive the written statement after
the expiry of the period stipulated under Sec. 19(5)(i). Similarly, the
Hon'ble High Court of Delhi has in Anita Garg & Ors vs State Bank of
India WP(C) 6886/2021(2021 DHC:2759DB) held that a written
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 Case Citation: (2024) ibclaw.in 47 DRAT

statement cannot be received beyond the stipulated time or extended

time mentioned in Sec. 19(5)(i) of RDB Act.

The Appellants cannot resort to the decision of the Hon’ble Supreme

Court in Suo Moto Writ Petition No. 3 of 2020 to get the time
extended because the time for filing the written had expired long
before the onset of the pandemic and hence, no extension is possible.

The appeal has no merits and therefore, needs to be dismissed.

Sd/-
Chairperson
mks-01

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