Debts Recovery Tribunal dismissed the applicants' application to condone a 504-day delay in filing a security application under Section 17 of the SARFAESI Act, holding the statutory limitation period cannot be extended.
Application for condonation of delay dismissed; Security Application stood dismissed and interim orders vacated.
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.
IN THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA AT BENGALURU
Dated this 20th day of July, 2022
Present: S. V. Gowramma, B.A., LL.B
Hon’ble Presiding Officer
IA.No.1769/2022 in
SA.No.296/2022
Between
Both are residing at:
No.374/5/3, Sai Tulasi Paradise, 2nd Floor, 9th Main, 50 feet Road, Hanumanthanagar, Bangalore - 560019
…Applicants
And
The Authorised Officer National Co-operative Bank Ltd., Admn. Office: No.73/1, Gandhi Bazar Main Road, Bangalore - 560004
…Respondent
Counsels on record/appeared for:
Applicant : Sri. M.A. Rajendra Respondent : Sri. K.V. Lokesh
ORDER ON IA.NO.1769/2022
The present Securitization Application (SA) is filed under
sub Section [1] of S.17 of the Securitization And Reconstruction
of Financial Asset and Enforcement of Security Interest
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Act,2002 (for short the ‘Act’) challenging the action and the measure taken by the secured creditor under the Security Interest [Enforcement Rules, 2002 [for short the Rules]
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15.12.2020 is not within the period of 45 as mandated under the Act. Hence the applicant has filed IA.1769/2022 a petition to condone the delay of 504 days in challenging Order dated 15.12.2020 under S. 5 of the Limitation Act. The applicants have filed Affidavit along with the application submitting that they come to know about the Order of the Magistrate only on 04.06.2022 when the officials came to the premises and informed about the Order passed by the Hon’ble 24th ACMM Bangalore, hence applicant has filed under S.5 of the Limitation Read with Provisions of S.22(2) (h) of the RDB Act to condone the delay.
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the secured asset under the provisions of SARFAESI Act in accordance with law and same is sustainable with law. The present application is hopelessly barred by limitation and the applicants have sought to set aside and quash the impugned order dated 15.12.2020 passed by the Hon’ble XXIV ACMM, Bangalore in Crl.Misc.No.4819/2020, where the applicants are aware of the SARFAESI proceeding initiated by the bank. The S.13(4) notice was affixed on the schedule property way back on 07.02.2020 and also published in the newspapers as mandated under the Act. The applicant have received the S.13(4) notice and failed to challenge the possession notice in this court within 45 days. Hence the bank approached Hon’ble Magistrate Court and obtained Order to take physical possession. The applicants were aware of the S.14 Order but did not choose to filed the SA and now has filed with a delay of 504 days having lost the opportunity to file the appeal within 45 days challenging the S.14 Order, there is no proper reason assigned for 504 days in filing present appeal. Hence the application deserves to be dismissed and the same is filed only for the purpose of filing this application with an aim to derail
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the measures taken by the bank and prays for not to condone the delay of 504 days.
Heard the submissions of both the counsels and perused the records.
6 SA.No.296/2022
a delay of 504 days in challenging the S.14 order dated 15.12.2020 passed by the Hon’ble XXIV ACMM, Bangalore in Crl.Misc.No.4819/2020. Though the applicant has filed application along with affidavit for condonation of delay and there is no justifiable cause or reason put forth in each day’s delay, wherein it is the duty of the applicant to justify each day delay. On the other hand, it reflects casualness in filing the application. As per the records of the respondent bank the S.13(4) possession notice dated 07.02.2020 is already affixed on the property and other statutory notices i.e, S.13(2) and S.13(4) is received by the applicant, evidencing the knowledge of the proceedings initiated by the bank. Thus the impugned Order dated 15.12.2020 passed by the Hon’ble XXIV ACMM, Bangalore in Crl.Misc.No.4819/2020, does not require any interference as there is no illegality pointed in the S.14 measures.
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the Hon’ble XXIV ACMM, Bangalore in Crl.Misc.No.4819/2020 with a delay of 504 days.
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds".
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Hence, the legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation.
The relevant paragraph 7 of the said judgment, the Hon'ble Division Bench of Kerala High Court has held thus:
Referring to these provisions the contention urged before us is that since section 24 of the RDB Act makes Limitation Act applicable and as the DRT constituted under the RDB Act is conferred with jurisdiction under section 17, Limitation Act governs applications made in a proceedings under section 17 also. We are unable to accept this contention. Both the RDB Act and the SARFAESI Act are independent enactments, although certain provisions of the RDB Act are made applicable in respect of the proceedings under the SARFAESI Act also. However, that does not mean that every
9 SA.No.296/2022
provision of the RDB Act would apply to every proceedings initiated under the SARFAESI Act.
Therefore, the contention raised relying on section 24 in so far as this case is concerned is only to be rejected and we do so. This is further clear from section 36 of the SARFAESI Act, which confines the applicability of the Limitation Act to measures under section 13 (4) of the said Act”.
In the case in hand also, the provisions of Section 5 of the Limitation Act are excluded from the scheme of Section 17 of the SARFAESI Act by not making any provisions enabling the Tribunal to condone the delay in filing an application under the said provisions of the Special Act.
The prescribed period of 45 days u/s. 17 of the SARFAESI Act for preferring an appeal against the measures taken by the secured creditor under S.13[4] of the Act cannot be condoned by application of Section 5 of the Limitation Act”.
Thus, it is evidence that the statute does not empower
the Tribunal to condone the delay in filing an application under S.17 of the Act beyond the period of 45 days.
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(Dictated to [PR], after its transcription and necessary corrections, signed and Order passed by me on this 20th day of July, 2022]
Sd/-
(S.V. GOWRAMMA) PRESIDING OFFICER DRT-2, BENGALURU
11 SA.No.296/2022
APPENDIX
LIST OF DOCUMENTS PRODUCED BY THE APPLICANT
| Sl No. |
Particulars | Annexures | Page. No. |
|---|---|---|---|
| 1 | The copy of the Order in Crl. Misc. No.4819/2020 |
A1 | 31-37 |
| 2 | The copy of the Crl. Misc. No.4819/2020 petition |
A2 | 38-50 |
| 3 | The copy of the statement pertaining to all the five accounts |
A3-A7 | 51-90 |
LIST OF DOCUMENTS PRODUCED BY THE RESPONDENT
| Sl No. |
Particulars | Annexures | Page. No. |
|---|---|---|---|
| 1 | Copies of Photographs taken during symbolic possession, newspaper publications, personally served of possession notice is herewith produced |
R1 | 7-11 |
Sd/(S.V. GOWRAMMA) Presiding Officer DRT-II, Bengaluru
3 issues framed by the court
Whether the Debts Recovery Tribunal possesses power to condone a delay of 504 days in filing an appeal under Section 17 of the SARFAESI Act.
Whether Section 5 of the Limitation Act applies to allow condonation of delay in appeals under Section 17 of the SARFAESI Act.
Whether the impugned order granting possession to the secured creditor requires judicial intervention.
Colour shows how this judgement treated each authority
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