Ajit Singh Lamba vs Uco Bank

S.N.H. Zaidi, J

Heard Mr. Sharma on application (I.A. No. 137/2013) filed on behalf of the appellant for treating the appeal within the period of limitation. According to Mr. Sharma, the order impugned was passed on 19.11.2012, but the appellant came to know about it only on 7.12.2012 and he had immediately applied for its certified copy on that very day. He also points out that though on 19.12.2012 a photocopy of the order was received at his residence through post, but the certified copy, which was applied for on 7.12.2012, was prepared and delivered only on 14.1.2013 and since the appeal has been filed on 24.1.2013, it is well within the period of limitation of 30 days, as provided for under Section 18 of the SARFAESI Act. He also contends that Rule 11 of the DRAT (Procedure) Rules, 1994 makes it mandatory that at least one certified copy of the order of the DRT against which the appeal is filed must accompany the appeal memo and as such the appeal could not have been filed without the certified copy of the order, which could be obtained only on 14.1.2013. Mr. Sharma further contends that Section 12(2) of the Limitation Act provides that in computing the period of limitation for an appeal, the time requisite for obtaining the copy of the order appealed from shall be excluded and thus on exclusion of the period from 7.12.2012 to 14.1.2013, which was taken by the office of the DRT for preparation of the certified copy of the order, the appeal has been filed within the period of limitation and there is no delay. He has placed reliance upon the judgments rendered in Sita Ram and Anr. v. State, MANU /UP/0042/1961, India House v. Kishan N. Lalwani,  1 (2003) SLT 155 : (2003) 9 SCC 393 and R. Indira Saratchandra v. State of Tamil Nadu & Ors.,  8 (2011) SLT 657 : 4 (2011) CLT 502 (SC) : (2011) 10 SCC 344 in support of his contention.

In the case of Sita Ram & Anr. v. State (supra) the question involved in the revision before the Allahabad High Court was whether the complaint filed on 30.4.1958 for an offence under the Factories Act, 1948, for commission of which came to the notice of the Inspector on 31.1.1958 was within three months of the latter date or not as under Section 106 of the said Act Court cannot take the cognizance of an offence punishable under the Act unless the complaint thereof is made within three months of the date in which the alleged commission of offence came to the knowledge of an Inspector. The Hon'ble Court, while considering the application of Section 29(2) of the Limitation Act to the matter, held in Para 4 of the judgment that, "Really it is immaterial whether the first limb of Sub-section (2) applies or not; what is material is whether the second limb applies or not. It lays down that for the purpose of determining any period of limitation prescribed for any application by any special law the provisions contained in Section 12 shall apply (insofar as and to the extent to which they are not expressly excluded by the special law)."

In India House v. Kishan N. Lalwani (supra) the Hon'ble Supreme Court has held that by virtue of Section 29(2) of the Limitation Act the provisions of Section 12 are applicable for computing the period of limitation prescribed by any special or local law. It has further been held that the period of limitation statutorily prescribed has to be strictly adhered to an cannot be relaxed or departed from for equitable considerations. It has also held that at the same time, full effect should be given to those provisions which permit extension or relaxation in computing the period of limitation such as those contained in Section 12 of the Limitation Act as the underlying such as those contained in Section 12 of the Limitation Act as the underlying principal purpose of these provisions is to enable a litigant seeking enforcement of his right to any remedy and harsh prescription of time bar should not unduly interfered with the exercise of statutory rights and remedies.

In R. Indira Saratchandra v. State of Tamil Nadu & Ors. (supra) the Hon'ble Apex Court has held in Para 10 of the judgment that: "...Ordinarily, the rules framed by the High Court do not provide for supply of copy of the judgment or order to the parties free of cost. The parties to the litigation can apply for certified copy which is required to be supplied on fulfilment of the conditions specified in the relevant rules. However, no period has been prescribed for making of an application for certified copy to the judgment or order or preparation any delivery thereof. Of course, once an application is made within the prescribed period of limitation, the time spent in the preparation and supply of the copy of excluded in computing the period of limitation prescribed for filing an appeal or revision."

The aforesaid proposition of law does not appeal to be applicable to the facts and circumstances of the present appeal filed under Section 18 of the SARFAESI Act, because as per Rule 16 of the DRT (Procedure) Rules order passed on the application is required to be communicated to the parties either in person or by registered post free of cost. In the instant matter a free copy of the order was sent to the appellant/applicant, which was admittedly received on 19.12.2012. The facts and circumstances of the cases of Sitaram (supra) and Indian House (supra) were also different from those of the instant matter. The Hon'ble Courts in the aforesaid matters have made the observation, on the basis of Sub-section (2) of Section 29 of the Limitation Act. The moot question, therefore, involved in this matter is whether the provisions of Section 29(2) of the Limitation Act are applicable to an appeal filed under Section 18 of the SARFAESI Act?

A Full Bench of the Madras High Court in Dr. Zubida Begum & Anr. v. Indian Bank & Anr.,  1 (2013) BC 67 : 2012(5) Current Tamil Nadu Cases 369, had considered the applicability of Section 29(2) of the Limitation Act, as reproduced below, to an appeal under the SARFAESI Act:

Savings.--(1) xxx xxx xxx

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

The Hon'ble Bench considering various judgments of the Apex Court had held that since the Tribunal established under the RDDBFI Act is not a Court, the question of automatic extension of the provisions of the Limitation Act to an appeal under Section 18 of the SARFAESI Act would not arise. It has further observed that the Statement of Objects and Reasons, the preamble and the scheme of the SARFAESI Act would make the position clear that the Legislature has consciously and intentionally excluded the applicability of Section 29(2) of the Limitation Act and as such it does not apply to the appeal under Section 18 of the SARFAESI Act.

A Division Bench of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd & Ors. v. State Bank of India & Am.,  1 (2013) BC 667 : AIR 2011 MP 205, has also taken the view that the Legislature has consciously excluded the applicability of the provisions of Sections 4 to 24 of the Limitation Act insofar as they relate to appeal under Section 18 of the SARFAESI Act. The cases relied upon by the applicant's Counsel are not directly on the question of the applicability of Section 29(2) of the Limitation Act to the provisions of the SARFAESI Act, whereas the Hon'ble Full Bench of the Madras High Court as well as the Division Bench of the Madhya Pradesh High Court have considered that question particularly in respect of the appeal filed under the SARFAESI Act. Since in view of the judgments of the Madras and Madhya Pradesh High Court the provisions of Sections 4 to 24 of the Limitation Act, including Section 12, do not apply to an appeal filed Section 18 of the SARFAESI Act, therefore, the applicant cannot take the benefit of the said section while computing the period of limitation for the appeal filed by him.

Since Section 18(1) of the SARFAESI Act provides that the appeal is to be filed within 30 days from the date of receipt of the order of the DRT and admittedly, the applicant had received the copy of the impugned order sent by the office of the DRT on 19.12.2012, therefore, in my opinion, the period of limitation in the instant case is to be computed from 19.12.2012 and since the appeal has been filed on 24.1.2013, therefore, the same cannot be held to be filed with the period of limitation as claimed by the appellant and is found to have been filed beyond the period of limitation by five days. In view of above discussion, the application is dismissed. Since the appeal has been filed beyond the period of limitation, therefore, the same cannot be entertained and is dismissed as time-barred.