United Traders and anr. Vs. State Bank of India and anr.

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. heard mr. g.b. dash, learned counsel for the bank arid the learned counsel for the petitioner.this application has been filed by the petitioner challenging the action of the bank in taking steps by issuing notice under section 13(2) of the securitization and reconstruction of financial assets and enforcement of security interest act, 2002 (hereinafter called 'act').2. it appears that notice under section 13(2) of act has been given to the petitioner on 29.11.2007 giving time for a period of sixty days to give reply to the said notice. no reply appears to have been given by the petitioner to the said notice though the petitioner has yet made some correspondence in the matter.3. in that view of the matter, this court gives fifteen days time to the petitioner to make a detailed reply to the notice under section 13(2) of the act alongwith an ots propoaal also. if also reply is filed by the petitioner, along with an ots proposal, the bank will consider the same and pass appropriate order. it is made clear that till a reply is given by the bank, the bank will not take any coercive action against the petitioner.4. the writ petition is thus disposed of.urgent certified copy of this order be granted on proper application.