The Debts Recovery Appellate Tribunal dismissed the appeal preferring misconduct of the Appellant in earlier writ petitions. The Tribunal held that the 45-day period for filing under Section 17 is mandatory and limitation Act provisions do not apply.
The appeal was dismissed and the impugned order of the DRT was affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Appeal No. 92 of 2013-DRAT-Kolkata
IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
Appeal No. 92 of 2013
(Arising out of SAIR No. 187 of 2012 in DRT, Hyderabad)
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
Smt. M. Vijayavani, wife of Srinivas, residing at 6-1-255, Varadraja Nagar, K.T. Road, Tirupathi, Chitoor District.
… Appellant
… Respondents
Counsel for the Appellant … Mr. Sanjib Das led by Mr. Ramesh Chandra Prusti Counsel for Respondent Bank … Mr. Debasish Chakrabarti with Ms. Sharmistha Pal
JUDGMENT : 17th November, 2022
THE APPELLATE TRIBUNAL :
Instant Appeal has been preferred against a judgment and order dated 3rd April, 2013 passed by Learned Debts Recovery Tribunal, Allahabad in I.A. 375 of 2012 arising out of SAIR No. 187 of 2012 whereby I.A. 375 of 2012 was dismissed and application to condone the delay in filing the application, under Section 17 of the SARFAESI Act 2002, was dismissed.
2. As far as the facts are concerned, SARFAESI Application was filed by the Appellant before the Learned DRT challenging the sale notice dated 14th September, 2011, issued by the Respondent Bank, on the ground that the Bank has not followed the mandatory provisions of the SARFAESI Act 2002 while issuing the process under Section 13 (4) of the SARFAESI Act 2002.
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Appeal No. 92 of 2013-DRAT-Kolkata Physical possession was also taken by invoking the provisions of Section 14 of the Act. Writ Petition No. 27125 of 2011, filed by the Appellant before the Hon’ble High Court at Andhra Pradesh, was dismissed as withdrawn on 24th February, 2012. Subsequently, Bank initiated further proceedings and issued publication for auction sale notice dated 14th September, 2011 for conducting the auction on 15th October, 2011. Another Writ Petition No. 28871 of 2011 was filed by the Appellant challenging the auction-cum-sale publication dated 14th September, 2011 which was also dismissed by the Hon’ble High Court vide order dated 24th February, 2012. Thereafter, Appellant filed the SARFAESI Application before the Learned DRT with a delay of 182 days.
4. Learned DRT arrived at a conclusion that the delay in filing the application, under Section 17 of the SARFAESI Act, 2002, cannot be condoned as there is a mandatory provision under Section 17 (1) of the Act to file the application within 45 days from the date on which measures under Section 13 (4) are taken. Accordingly, the application was dismissed. 5. I have heard the Learned Counsel for the parties and perused the record.
6. Learned Counsel for the Appellant submits that the Appellant is a layman who does not know the niceties of law. On the legal advice, he preferred writ petitions before the Hon’ble High Court. When the Hon’ble High Court dismissed the second writ petition, then the Appellant preferred the application under Section 17 of the SARFAESI Act 2002 before the Learned DRT.
7. Learned Counsel further submits that delay in filing the application under Section 17 of the SARFAESI Act 2002 is not mala fide rather bona fide. He has also referred to the provisions of Section 14 of the Limitation Act and submits that the time spent in litigating before the Hon’ble High Court should be exempted in calculating the period of limitation of 45 days as he was pursuing the proceedings before the Hon’ble High Court bonafidely.
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Appeal No. 92 of 2013-DRAT-Kolkata 8. It is further submitted that the period of 45 days is very short which should be given a proper interpretation and the delay in moving the application under Section 17 of the SARFAESI Act 2002 should have been condoned by the Learned DRT.
9. Learned Counsel for Respondent submits that the Learned DRT has rightly dismissed the application. It is submitted that the period of 45 days, as provided under Section 17 (1) of the SARFAESI Act 2002, is a mandatory provision which should be read strictly in accordance with the provisions of the Act. When a particular period is fixed in the statute, no latitude can be given to the parties for extending the period. It is further submitted that settled legal proposition is that the application under Section 17 of the SARFAESI Act 2002 is to be treated as a suit and the provisions of Section 5 of the Limitation Act will not be applicable. Learned Counsel further submits the Appellant has not pursued the case before the Hon’ble High Court bonafidely, as has been observed by the Hon’ble High Court in its judgment dated 24th February, 2012, passed in writ petition No. 28871 of 2011.
10. As far as bona fide of the Appellant is concerned, Appellant has preferred a writ petition No. 27125 of 2011, which was withdrawn by the Appellant on 24th February, 2012 and was accordingly dismissed. On the same date, the Hon’ble High Court of Judicature at Andhra Pradesh also dismissed the Writ Petition No. 28871 of 2011 and it was held that:
“We have perused the affidavit in W.P.No.27125 of 2011. In the said writ petition the possession notice dated 26.08.2011 was challenged and a prayer was sought to declare the action of the third respondent herein in trying to take possession and trying to sell away the property without initiating proceedings under the Act as illegal and arbitrary. In the present case the auction itself is challenged. We do not find any difference in the prayers, but curiously, in the present writ petition an averment made is that the petitioner has not filed any case in relation to the same matter. Thus, it becomes clear that the petitioner approached this Court with unclean hands and discretion need not be exercised in favour of such person. If the petitioner has any grievance, it is always open to her to approach the Debts Recovery Tribunal under Section 17 (1) of the Act. The writ petition is wholly misconceived The Writ Petition is wholly misconceived.
The Writ Petition is accordingly dismissed. All the miscellaneous petitions shall also stand dismissed. There shall be no order as to costs.”
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Appeal No. 92 of 2013-DRAT-Kolkata 11. No doubt there is a provision under Section 14 of the Limitation Act for exemption of the period of limitation which is bonafidely consumed before a Court of law by the Appellant. I am not recording any finding on the above point whether that point will be applicable under Section 17 or not but at the same time the observations made by the Hon’ble High Court, as quoted above, specifically says that the writ petition was misconceived and the Appellant filed the same before the Hon’ble High Court with unclean hands, hence it cannot be held that the Appellant was pursuing the proceedings bonafidely.
12. As far as question of condonation of delay in filing the application under Section 17 of the SARFAESI Act 2002 is concerned, it is settled legal proposition that an application, under Section 17 of the SARFAESI Act 2002, is to be treated as a suit and as such the provisions of Section 5 of the Limitation Act will not be applicable. The Hon’ble Apex Court, in Civil Appeal No. 16962 of 2017 (International Asset Reconstruction Company of India Limited -vs- The Official Liquidator of Aldrich Pharmaceuticals Limited & Others), in Judgment dated 24th October, 2017 has specifically held that:
“14. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act.”
13. In a recent judgment delivered on 11h August, 2022 reported in 2022 Live Law (Hon’ble Supreme Court) 671 Civil Appeal No. 5040 of 2022 (Bank of Baroda & Another -vs- M/s. Parasaadilal Tursiram Sheetgrah Private Limited & Others), relying upon a judgment of the Hon’ble Supreme Court reported in Transcore -vs- Union of India & Another, (2088) 1 SCC 125, it was held that the reason for providing a time limit of 45 days for filing an
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Appeal No. 92 of 2013-DRAT-Kolkata application under Section 17 can be inferred for the purpose and object of enactment. SARFAESI Act is enacted for quick enforcement of the security. 14. Hence it is clear that the period of limitation of 45 days for filing an application under Section 17 of the SARFAESI Act is mandatory which cannot be extended or delay in filing an application under Section 17 of the SARFAESI Act cannot be condoned.
15. On the basis of the discussion made above, I am of the view that the Appellant is not entitled for any condonation of delay in filing the application under Section 17 of the SARFAESI Act 2002 before the Learned DRT. Learned DRT has rightly dismissed the application. The appeal lacks merit and is liable to be dismissed.
O R D E R
Accordingly, the appeal, being Appeal 92 of 2013, is dismissed. The impugned order dated 3rd April, 2013, passed by Learned Debts Recovery Tribunal, Allahabad in I.A. 375 of 2012 arising out of SAIR No. 187 of 2012, is hereby affirmed.
No order as to costs.
File be consigned to Record room.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.
Order dictated, signed and pronounced by me in the open Court on this the 17th day of November, 2022.
(Anil Kumar Srivastava,J) Chairperson
Dated: 17th November, 2022 14/ac
2 issues framed by the court
Whether the delay in filing an application under Section 17 of the SARFAESI Act 2002 can be condoned.
Whether the provisions of Section 5 of the Limitation Act apply to condone delay in filing an appeal under Section 17 of the SARFAESI Act.
Colour shows how this judgement treated each authority
International Asset Reconstruction Company of India Limited vs The Official Liquidator of Aldrich Pharmaceuticals Limited & OthersApplied¶33
Civil Appeal No. 16962 of 2017 (International Asset Reconstruction Company of India Limited -vs- The Official Liquidator of Aldrich Pharmaceuticals Limited & Ot
Bank of Baroda & Another vs M/s. Parasaadilal Tursiram Sheetgrah Private Limited & OthersReferred¶35
2022 Live Law Civil Appeal No. 5040 of 2022 (Bank of Baroda & Another -vs- M/s. Parasaadilal Tursiram Sheetgrah Private Limited & Others)
Transcore vs Union of India & AnotherReferred¶35
(2008) 1 SCC 125 Transcore -vs- Union of India & Another · Who else cites this
2 provisions across 2 enactments
Smt. M. Vijayavani
M/s. India Bulls Housing Finance Limited
Anil Kumar Srivastava
As recorded by the court registry
7 orders share this CNR
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