Bank Of Maharashtra vs Dilip Kumar Saha

S.N.H. Zaidi, J

Heard on application I.A. No. 614/2011 filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal. As per office note the appeal is time-barred by 163 days. Mr. Gullaiya submits that though the copy of the impugned order dated 10.1.2011 was received by the appellant-Bank on 13.1.2011, but the appeal could not be filed prior to 3.8.2011 as the Central Office of the Bank took time in informing its decision about the filing of appeal, thereafter, some time was consumed in drafting the appeal and then the draft of appeal was sent for approval to the Regional Office and after receiving the approval from there the appeal could be filed on 3.8.2011. According to Mr. Gullaiya the delay was not intentional and had occurred in completing the procedural formalities.

Before proceeding to consider the question whether or not the appellant was prevented with any sufficient cause to file the appeal within the period of limitation, a preliminary/legal question has been raised about the jurisdiction of this Appellate Tribunal to condone the delay under Section 5 of the Limitation Act.

It has been pointed out that the aforesaid issue was considered at great length by the Division Bench of the Hon'ble High Court of Madhya Pradesh at Jabalpur in the judgment rendered on 5.9.2011 in Writ Petition No. 2393/2011 --M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Anr. and it has been held by the Hon'ble Court that the applicability of the provisions of the Indian Limitation Act to the Appellate Tribunal is excluded and this Tribunal has no power to condone the delay occasioned in filing the appeal under Section 18 of the SARFAESI Act. Hon'ble Mr. Justice Ajit Singh of the Bench, after making the observations in paras 16 to 18, as reproduced below, has held that the Appellate Tribunal has no power to condone the delay in filing the appeal.

When I compare Section 18 of the SARFAESI Act with Section 20 of the RDDBFI Act, I find that in Section 18 not only the period of limitation for filing an appeal has been reduced to 30 days from 45 days as provided in Section 20 but the power of the Appellate Tribunal to condone delay has also been excluded which is provided in Section 20 of the RDDBFI Act. This itself leaves no iota of doubt that the legislature has consciously intended not to confer the power of condonation of delay with the Appellate Tribunal under Section 18 of the SARFAESI Act. Because, it is a well settled principle of law that just as use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the Legislature that the language so used in the later statute is used in the same sense as in the earlier one, change of language in a later statute in pari materia is suggestive that change of interpretation is intended (see Principles of Statutory Interpretation by Justice G.P. Singh, 12th Edition 2010, Page 310).

There is also an identical provision in Sub-section (7) of Section 17 of the SARFAESI Act which states that the Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of RDDBFI Act. Under the RDDBFI Act the Tribunal and the Appellate Tribunal are separately established and its Section 24, which deals with limitation, states that the provisions of Limitation Act, 1963 shall, as far as may be, apply to an application made to a Tribunal. As already mentioned above, application under Section 17 can be made by any aggrieved person to the Tribunal within 45 days from the date on which he has suffered an action under any of the measures referred to in Sub-section (4) of Section 13 of the SARFAESI Act. Thereafter any person aggrieved by any order made by the Tribunal under Section 17 can prefer an appeal to the Appellate Tribunal under Section 18 within 30 days from the date of receipt of the order of the Tribunal. Section 24 of the RDDBFI Act has not made the provisions of the Limitation Act applicable to an Appellate Tribunal. This being the position, it is apparent that although the Tribunal can give the benefit of Section 5 of the Limitation Act, while dealing with an application under Section 17 of the SARFAESI Act, the Appellate Tribunal cannot do so while considering the appeal under Section 18. This view also finds support from the decision of the Supreme Court in Gopal Sardar v. Karuna Sardar, : (2004) 4 SCC 252 wherein it is held that when in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under a particular section of that statute, it obviously and necessarily follows that the Legislature consciously excluded the application of Section 5 of the Limitation Act. This view was also followed by the Supreme Court in Fairgrowth Investments Limited (supra).

Having regard to the object of the SARFAESI Act that it intends to ensure speedy recovery of dues of Banks and also for quick resolution of dispute arising out of the action taken for recovery of such dues. I have no hesitation in holding that the Legislature has consciously excluded the applicability of the provisions of Section 4 to Section 24 of the Limitation Act insofar as they relate to Section 18 of the SARFAESI Act. The decisions of UCO Bank v. Kanji Manji Kothari and Punnu Swami v. The Debts Recovery Tribunal of Bombay and Madras High Courts relied upon by the learned Counsel for petitioner are with regard to the applicability of Section 5 of the Limitation Act only to Section 17 of the SARFAESI Act not Section 18. In both these decisions, Section 18 has not even been referred. The decisions are, therefore, not applicable in the present case.

Hon'ble Mr. Justice Sanjay Yadav of the said Bench has also finally concluded that the Legislature has not conferred powers on the Appellate Tribunal under Section 18 of the Act to condone the delay in filing the appeal against the orders passed by the DRT.

Mr. Gullaiya could not advance any submission which could have warranted to take a different view. 1 am in agreement with the reasoning and conclusion of the Hon'ble Madhya Pradesh High Court in the aforesaid case. As this Appellate Tribunal has no power to condone the delay in filing the appeal under Section 18 of the SARFAESI Act, the application is liable to be dismissed on the legal issue only. Application is dismissed accordingly.

Since the appeal has been preferred beyond the period of limitation, therefore, the same is dismissed as being barred by time. Copy of this order be furnished to the parties as per law and a copy be also sent to the DRT concerned.