Dismissed

Sri Kishore Kumar Chindaliya v. Piramal Capital and Housing Finance Limited

DRT25 Jun 2024SA/274/2023

Case brief

AI extract

What is this about?

The DRT-I at Hyderabad dismissed an application to condone a 105-day delay in filing an appeal under Section 17 of the SARFAESI Act. The court held that Section 5 of the Limitation Act is inapplicable for condoning delay in SARFAESI proceedings, which must be treated strictly. The applicant, a third party, was also found to lack locus standi.

What did the court decide?

The IA seeking condonation of delay was dismissed, and the subsequent condoned SAIR was rejected.

Sri Kishore Kumar Chindaliya versus Piramal… — Contract and Commercial Disputes | DRT (2024)

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IN THE DEBTS RECOVERY TRIBUNAL-I AT HYDERABAD

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DATED THIS THE 25TH DAY OF JUNE,20.24

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PRESENT: SRI GUMMADI GOPICHAND, PRESIDING OTFICER

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I.A.No.1860 of 2o.23

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In SAIR No.665 of 2o23

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Sri R. NagendraNaik, S/o RamaswamyNaik, Aged 40 years Occ:Pvt. Employee, R/o H.No.4-9612, Gopi Krishna Colony, Ravindra Nagar, Nagaram village & Municipality, Keesara Mandal, Medchal-Malkaj giri Dist., Hyderabad, Telangana

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... Petitioner/Applicant

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And,

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l.Housing Development Finance corporation Ltd., HDFC House, H.No.3-6-310, Hyderguda Road,

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Basheerbagh, rep. by its

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Authorized Officer Mr. Srinivas Noora& others

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Gangireddy Ravi Sankar Reddy, S/o VeeraBadra Reddy. Aged 41 years,

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Occ:Havildar, Indian Army, NO.261 1083A, R/o Unit-19, Andhra Battalion NCC,

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KSR Thota, Eluru, A.P-534003.

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Permanent address:H.No.4/ 84 l, Mahatma Nagar, yellaguntla, Cuddapah Dist. Andhra Pradesh-S 76609.

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Smt. ErugulaVenkataNaveena, W/o Gangireddy Ravi Sankar Reddy, Aged 35 years, Occ:pvt. Employee,

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D.No.8- l13el7 /6, Anandnagar

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Ex Service Men Colony, Near Govt. School,

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Jawahar Nagar, Balaji Nagar,

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Shameerpet, RAngareddy- 500087

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Permanent Address:H. No.4 / 84 1, Mahatma Nagar, yellaguntla, Cuddapah Andhra Pradesh-5 16609.

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Punjab National Bank Housing finance 2"d floor, Road No.1, MCH No.15-24-173 KPHB Colony, Kukatpally,

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7 5^JUN 2|[r

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Hyderabad,Telangan a- 50 OO7 2 .

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Counsel for the Parties:

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For the Petitioner For the Respondent

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Ld. Advocate SriR.N.Hemanand Ld. Advocate Sri B.Ravindra Reddy

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ORDER

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This application is Iiled by the Petitioner under 5 of the Limitation Act, 1963 rlw Section 17 of the SARFAESI Act,2OO2 and Section 19(25) of RDB Act, 1993 for condoning the delay of 105 days in filing the application under Section 17 of the SARFAESI Act, 2OO2 challenging the action of the lstRespondent for taking physical possession of the schedule property through Advocate Commissioner vide notice dt.04.05.2023 pursuant to the orders of CMM, Medchal-Malkajgiri in Crl.M.P.No.35212022.

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The averments made in the apprication filed by the petitioner in brief are that the Applicant/ Petitioner is neither a borrower nor guarantor and he is a 3.d part5r who purchased the schedule propertlr from Respondent No.2 by way of Regd. Sale Deed No.344Z l2O23.The Advocate commissioner has not issued any notice to the original owner i.e. the Petitioner whereas Respondents No.2&3 are not owners and not in possession of the schedule property.The Applicant also filed WP.No. 1877312023 on the file of Hon,ble High Court of Telangana and the same was disposed of with a direction to the Petitioner to approach the concerned DRT and in view of the same, there was a delay of 105 days in filing the Securitization application under SARFAESI Act, 2o02 which is neither willfur nor wanton and accordingly prayed to condone the same.

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This applicatio l "tRespgndent by filing counter. It is contend &3 availedcredit facilities from the 1"t R in payment of outstanding dues and s9, ttie ; f^st ::Rrypponaeni initiated proceedings under ^? li ':+

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SARFAESI Act,2OO2 and issued demand notice and possession notice to the Respondents No.2&3 and taken physical possession of the secured asset through advocate commissioner pursuant to the orders in Cr1.M.P.No.352l22 and there are no violations. Further, the Petitioner being a 3raparty has no locus-standi to challenge the proceedings initiated by the 1"t Respondent against the schedule property.

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Heard both the Ld. Counsel and perused the material brought on record.

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Now the point for consideration is uhether section s of the Limitation Act, 1968 is applicabre to condone the detog in filing application under Section 17 of SARFAESI Act, 2002?

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Ld. counsel for the^petitioner submitted that pursuant to the Notice dt.O4 .05.2023 issued by the Advocate commissioner as per the orders of CMM, Malkajgiri-Medchal in Crl.M.p.No .3S2l2g for taking physical possession of the schedule propert5r, there was a delay of 105 days occurred in filing the Securitization application as the Petitioner approached Hon'ble High Court of Telangana by liling writ petition, which is neither willful nor wanton. per contra, Ld. Counsel for the l^stRespondent argued that they have followed the due process of law and there are no violations and Section 5 of the Limitation Act does not appiy to the present case.

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As per the judgement of Hon'ble Apex Court reported in 2022 Live Law (SC) 677 in Civil Appeal No.S24Ol2O22 between Bank of Baroda & Another Vs. M / s. parasaa heetgrahP+t. Ltd. wherein it is held in Para No.12 whi

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d\ 7*. "The reason for pro a time of 45 filing^{an application} under Section 17 gfsity%$irlw*yom gfie purpose and object of the enactment. In Vs.Union of India" and Anr., this Court held.

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that the SARFAESI Act is enacted for quick enforcement of the seanity. It is unforfitnate that proceedings uthere a propertA that has been brought to sale and third partg ights created under tlqe prouisions of the Act, haue remained inconclusiue euer after a decad.e.

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As per Section 17(1) of SARFAESI Act,2OO2, any person aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer may make an application before the concerned Debts Recovery Tribunal within fort5z five days from the date of which such measures had been taken.

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Recently, Honble DRAT, Kolkata passed orders in Appeal No.9212023 holding that section s of the Limitation Act, 196g is not applicable for condoning the delay in filing an application under Section 17 of the SARFAESI Act, 2OO2. In the said order, a reference is made to the judgment of Hon'ble Apex Court reported in 2022 Live Law 671 Civii Appeal No.5O4Ol2O22. In paras No.12 to 15 of the said judgement which is relevant is read as follows:

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" 12.As far as question of condonation of d elag in filing the application under section 17 of the sARFAES/ Act, 2002 is concemed, it is settled legal proposition that an application, under Section 17 of the SAR.XESI Act, 2O02 is to be treated" as a suit and as suct t, the prouisions of Section 5 of the Limitation Act uitt not be applicable. The Hon,ble Apex Court, in Ciuil Appeal No. 16962/ 2O 1 7 (International Assef Reconstruction Compang of India Limited Vs The Officiat Liquidator of Aldich Phormaceuticals Ltd..& others), in judgment dt. 24th October, 2O17 has specificallg held thaf,

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"The RDB Act is are before a statutory TibunaL The that the Legislature has prouided for of the Limiiation Aci * proceedings before the Tribunal '.*ction/ lb onfu. the Ar Tribunal has been confened the power s under Section 2O(3) of

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ttLe Act. The proceedings before the Recouery officer are not before a Tibunal. Section 24 is limited inits application to proceedings before the Tribunal oiginating under Section 19 only. The exclusion of ang prouision for ertension of time bg the Tribunal in preferring an appeal under Section 3O of the Act makes it maniftst that the legi.slatiue intent for exclusion u)as express. The application of Section 5 of the Limitation Act bg resort to Section 29(2) of the Limitotion Ac| 1968 therefore does not arise. The prescibed peiod. of 30 dags under Section 30(1) of the RDB Act for prefening an appeal against the order of the Recouery Olficer therefore cannot be condoned bg application of Section 5 of the Limitation Act."

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In a recent judgment deliuered on 11th Aurys\ 2O22 reported in Liue Lana (Hon'ble Supreme Court) 671 Ciuil Appeal No.5O4O of 2O22 (Bank of Baroda & another Vs. M/ s. ParasoadilalTursiramSheetgrahPut.Ltd. & others), relging upon a^judgment of the Hon'ble Supreme Court reported in Tra n score Vs. Union of India & another, (2088) I SCC 125, it was held *nt the reason for prouiding a time limit of 45 dags for filing an application under Section 17 can be inferred for the purpose and object of enactment. SARFAESI Act is enacted for^{quick enforcement of tLTe secuitA.}

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Hence it is clear that the peiod of limitation of 45 dags b mandatory which cannot be ertended or delag in filing an application under Section 17 of the SARFAESI Act cannot be condoned.

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On the basis o/ the discussion made oboue, I am of the uieu that the Appellant is not entitled for ang condonation of delag in filing the application under Section 17 of the SARFAESI Act, 2OO2 before the Learned DRT. Learned DRT has rightty dismissed. the application. The appeal lacks meit and is liable to be dismi.ssed."

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So, considering all the above circumstances, I am of the opinion that provisionsof Section 5 of the Limitation Act, 1968 are not applicable for filing an application under Section 17 of the SARFAESI Act, 2OO2 by any including 2 Jra part5z to the SARFAESI ,11. ,."..^.,i' stion of condoning the delay ' :'.- - of 105 days as oupht by the Petitioner. not arise.

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In view of the above^{circumstances,I am of the opinion that there are} no merits in the above^{application and accordinglyI.A.1860/23is} dismissed as devoid of merits.

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