The Air Appeal Tribunal dismissed the appeal filed by Farooq Ali against the DRT's order upholding time bar under Section 17 of the SARFAESI Act. The court held the application filed in July 2014 was time-barred relative to the possession notice in October 2013.
The appeal is dismissed and the impugned judgment of the DRAT is 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.
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Appeal No. 206 of 2018-DRAT-Kolkata
IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
Appeal No. 206 of 2018
(Arising out of S.A. 481 of 2014 in DRT-I, Hyderabad)
Farooq Ali, Son of Mir Bande Ali, R/o H. No. 20-6-257, Bazar Rooplal, Shahali Banda, Hyderabad.
… Appellant
-Versus-
| … Respondents | ||
|---|---|---|
| Counsel for Appellants | … | Mr. Nemani Srinivas |
| Counsel for Respondent s | … | Mr. Debasish Karmakar Mr. Parikshit Lakhotia |
| JUDGMENT | : | 23rdApril, 2024 |
THE APPELLATE TRIBUNAL :
Heard the Learned Counsel for the parties and perused
2. Instant appeal has arisen against judgment and order dated 11.10.2018, passed by Learned DRT-I, Hyderabad,
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Appeal No. 206 of 2018-DRAT-Kolkata dismissing S.A. 481 of 2014 (Farooq Ali -vs- Asrec (India) Limited & Others).
3. As per the pleadings of the parties, Appellant claims himself to be the share holder of the secured asset which was mortgaged with the Respondent Karur Vysya Bank now assigned to Respondent No. 1. He is neither a Borrower nor Guarantor. The scheduled property was purchased by the Appellant’s mother, who is the grandmother of Respondents No. 3 to 6. O.A. No. 1262 of 2003 was filed by the Appellant’s sister, Smt. Kaleeka Begum, for partition of the suit property and also filed a suit for specific performance. Both the suits were decreed. It is alleged that the secured assets are arising out of the ancestral property of the Appellant wherein no notice was issued to him. It appears that the scheduled assets were mortgaged by Respondents No. 3 to 6, namely, Syed Aftab Quadri, Smt Syed Roohi Shireen, Syed Youuf Quadri and Mrs. Syeda Shazi Shireen. Appellant came to know about the SARFAESI action undertaken by the Respondent No. 1 on 21.6.2014 when the Advocate Commissioner visited. Thereafter, application under Section 17 of the SARFAESI Act (hereinafter referred to as the Act) was filed on 2nd July, 2014.
4. Learned DRT, after hearing Learned Counsel for the parties, recorded a categorical finding that the SARFAESI Application is filed beyond the mandatory period of 45 days as the possession of the secured assets was taken by the Respondent on 10.10.2013. Hence, he was having
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Appeal No. 206 of 2018-DRAT-Kolkata knowledge of the SARFAESI action. Further certain findings regarding merits of the matter were also recorded. 5. Feeling aggrieved, the Appellant has preferred the instant appeal.
6. At the very outset, Learned Counsel for Appellant would submit that the appeal is filed well within time. Further, it is submitted that when the Learned DRT has arrived at a finding that the SARFAESI Application was filed beyond time then findings on merits of the matter should not have been arrived at.
7. Learned Counsel for Respondent would submit that the Appellant was knowing about the SARFAESI action initiated by the Respondent on 10.10.2013 hence, the application filed under Section 17 of the Act is time barred which was filed on 2nd July, 2014.
8. It is mandatory provision that application under Section 17 of the Act should be filed within 45 days from the date the cause of action arises. As per the possession notice dated 10.10.2013, Appellant was having knowledge of the SARFAESI action initiated by the Respondent No. 1 but Appellant has taken a plea that he came to know about the same on 21st June, 2014 but his source of knowledge is not mentioned or disclosed in the limitation clause. Accordingly, it could not be accepted that the Appellant came to know about the SARFAESI action by the Respondent on 21.6.2014; rather it was well within his knowledge from 10.10.2013.
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Appeal No. 206 of 2018-DRAT-Kolkata 9. It is further submitted that challenge is made to the order under Section 14 of the Act dated 15.4.2014. Even if that is taken into consideration, source of information on 21.6.2014 is not disclosed in the limitation clause.
10. Accordingly, I am of the considered opinion that application under Section 17 of the Act was time barred. Learned DRT rightly arrived at the conclusion. However, when the Learned DRT found the petition to be time barred, there was no requirement to give finding on the merits. I have also not gone into the merits of the matter. Accordingly, on the basis of the observations made in the body of the judgment, the appeal is liable to be dismissed.
O R D E R E D
Appeal is dismissed. The impugned judgment and order dated 11.10.2018, passed by Learned DRT-I, Hyderabad, dismissing S.A. 481 of 2014 (Farooq Ali -vsAsrec (India) Limited & Others), is affirmed.
No order as to costs.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order signed, dated and pronounced in open Court.
(Anil Kumar Srivastava,J) Chairperson
Dated: 24th April, 2024 07/ac
2 issues framed by the court
Whether the application under Section 17 of the SARFAESI Act was filed beyond the mandatory period of 45 days.
Whether the Appellant's claim of later knowledge of the SARFAESI action cures the limitation defect.
2 provisions across 1 enactments
Farooq Ali
Asrec (India) Limited
Anil Kumar Srivastava
As recorded by the court registry
9 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
