Allowed

Sheee Vidyadhiraja Vidya Samajam Rep. by Its Secretary v. Indian Overseasbank

Kerala HC1 Nov 2013OP (DRT)/3777/2013

Case brief

AI extract

What is this about?

The High Court of Kerala held that the Debts Recovery Appellate Tribunal possesses jurisdiction to condone delay in filing appeals under the SARFAESI Act by applying the Limitation Act, 1963. The court set aside the lower tribunal's order rejecting the appeal due to delay and directed a rehearing on merits.

What did the court decide?

The order dated 27.08.2013 in AIR(SA) 761/2011 is set aside; the Debts Recovery Appellate Tribunal is directed to rehear the application for condonation of delay afresh.

Sheee Vidyadhiraja Vidya Samajam Rep. by Its Secretary… — Banking and Recovery | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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FRIDAY, THE 1ST DAY OF NOVEMBER 2013/10TH KARTHIKA, 1935

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OP (DRT).No. 3777 of 2013 (O)

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AGAINST THE ORDER IN AIRSA 761/2011 of DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI DATED 27-08-2013 AGAINST THE ORDER IN SA 356/2009 of DEBT RECOVERY TRIBUNAL,

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ERNAKULAM

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PETITIONER(S):

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SHREE VIDYADHIRAJA VIDYA SAMAJAM REGISTERED CHARITABLE SOCIETY WITH HEADQUARTERS AT "ASWATHY", HINDU MISSION ROAD THIRUVANANTHAPURAM-695001, KERALA STATE REPRESENTED BY ITS SECRETARY, DR. R.AJAY KUMAR MAIDAN VILLA, HINDU MISSION ROAD THIRUVANANTHAPURAM-695001.

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BY ADVS.SRI.SANTHAN V.NAIR

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SRI.V.V.MITHUN

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SRI.V.GOPIKRISHNA

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RESPONDENT(S):

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1. INDIAN OVERSEASBANK THIRUVANANTHAPURAM BRANCH, OPPOSITE SECRETARIAT M.G.ROAD, THIRUVANANTHAPURAM, KERALA REPRESENTED BY ITS AUTHORISED OFFICER.

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2. P.N.KRISHNA PILLAI 'SOUPARNIKA', ALUMMOODU, NEYYATTINKARA THIRUVANANTHAPURAM, KERALA STATE-695121.

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3. R. PRABHAKARAN NAIR 'KRISHNAKRIPA', ASAN NAGAR, EANCHAKKAL THIRUVANANTHAPURAM, KERALA STATE-695008.

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4. M/S. ARYANS INSTITUTE OF MANAGEMENT AND TECHNOLOGY REMA PLAZA, S.S. KOVIL ROAD THAMPANOOR, THIRUVANANTHAPURAM, KERALA STATE - 695001 REPRESENTED BY ITS PROPRIETOR, K. JAYAKRISHNAN

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5. M/S. ZYBERO TECHNOLOGIES

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T.C. 15/137, ALTHARA ROAD VELLAYAMBALAM THIRUVANANTHAPURAM, KERALA STATE - 695 010 REPRESENTED BY ITS PROPRIETOR K. JAYAKRISHNAN

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R1 BY SRI.LEO GEORGE, SC, IOB

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 01-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DCS

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OP (DRT).No. 3777 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1- COPY OF THE APPEAL BOOK NUMBERED AS AIR(SA) 761/2011 FILED BEFORE THE APPELLATE TRIBUNAL (DRAT) CHENNAI.

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EXHIBIT P2- COPY OF THE ORDER DATED 27-08-2013 OF THE APPELLATE TRIBUNAL (DRAT), CHENNAI, WITH REGARD TO IA 714/2013 IN AIR (SA) 761/2011.

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RESPONDENT(S)' EXHIBITS:- NIL

/TRUE COPY/

P.A. TO JUDGE

DCS

“C.R”

V.CHITAMBARESH,J.

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------------------------------O.P.(DRT) No.3777 of 2013 ------------------------------------- Dated this the 1^st day of November, 2013

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J U D G M E N T

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The short question is as to whether the Debts Recovery Appellate Tribunal has jurisdiction to condone the delay in filing an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the SARFAESI Act' for short) ?

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Section 18(2) of the SARFAESI Act enables the Debts Recovery Appellate Tribunal to dispose of an appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('the Act' for short) and the Rules made thereunder. Section 20(3) of the Act provides a period of forty five days for an appeal to be filed before the Debts Recovery Appellate Tribunal reckoned from the date on which a copy of the order made by the Debts Recovery Tribunal is received by the applicant. The proviso thereof enables the Debts Recovery Appellate Tribunal to entertain an appeal after the expiry of the said period of forty

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O.P.(DRT) No.3777 of 2013 2

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five days if it is satisfied that there was sufficient cause for not filing it within that period. Section 24 of the Act further clarifies that the provisions of the Limitation Act, 1963 shall as far as may be apply to an application made to the Debts Recovery Tribunal or the Debts Recovery Appellate Tribunal. Also Section 29(2) of the Limitation Act, 1963 is a cue to hold that Sections 4 to 24 thereof including Section 5 for condonation of delay apply when there is no express exclusion under the SARFAESI Act. Not only is there any express exclusion but also that Section 37 of the SARFAESI Act reinforces that its provisions shall be in addition to and not in derogation of the Act.

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It is crystal clear therefore that the Debts Recovery Appellate Tribunal has ample powers to condone the delay in filing an appeal against the order of the Debts Recovery Tribunal rendered on an application under Section 17 of the SARFAESI Act. The same view is taken by the Division Benches of the High Courts of Andhra Pradesh and Punjab & Haryana in the following decisions:-

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i) Sajida Begum v. State Bank of India, Hyderabad [2012 KHC 2986 (A.P)].

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ii) Surinder Mahajan v. Debts Recovery Appellate Tribunal & Others [C.W.P.No.22567/2011 (P & H)]

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O.P.(DRT) No.3777 of 2013 3

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This Court has also held in Jayan v. Hong Kong and Shangahai Banking Corporation Ltd. [2009(2) KLT 1014] that the provisions of the Limitation Act can be extended to the proceedings under the SARFAESI Act before the Debts Recovery Tribunal. The contrary view taken by the High Court of Judicature at Madras in W.P. No. 13456/2012 [Dr. Subaida Begum v. Indian Bank] is not followed by me for the reasons stated supra.

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The appeal filed by the petitioner under the SARFAESI Act has been rejected by the Debts Recovery Appellate Tribunal on the sole ground that there is no power to condone the delay in filing the same. Such a view is plainly unacceptable in view of the proposition of law stated above and the application for condonation of delay in filing the appeal deserves to be considered on merits. Every endeavour shall be made to dispose of the lis on merits rather than nonsuiting the petitioner on the ground of delay unless the same is wilful and not sufficiently explained. I set aside the order dated 27.08.2013 in AIR(SA) 761/2011 and direct the Debts Recovery Appellate Tribunal to rehear I.A. No. 714/2013 filed for condonation of delay afresh. The parties shall appear before the Debts Recovery Appellate Tribunal at Chennai on

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O.P.(DRT) No.3777 of 2013 4

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25.11.2013 and the Registry shall forthwith despatch a copy of

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this judgment thereto.

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The original petition is allowed. No costs.

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Sd/-

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V.CHITAMBARESH JUDGE