Kanti Lal Sadh vs Indian Overseas Bank

Ranjit Singh, J

But for the conflicting views, the issue regarding the powers of the appellate Tribunal to condone delay in appeals filed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (for short, the SARFAESI Act) would have acquired finality by now. The position in this regard is not fully settled. There may not have been need for any debate if this Tribunal had been having before it a clear path to follow. Rather, this Tribunal is in a real predicament because different Debts Recovery Tribunals whose orders are appealed before this Tribunal are located under the territorial jurisdiction of those two different High Courts which have expressed differently on the issue of power of this Tribunal to condone delay in such appeals filed under the SARFAESI Act. Often this Tribunal has found itself confronted with these conflicting views with a plea to follow one view with opposite side pleading for accepting the contrary view. This Tribunal could not afford to follow one view in cases pertaining to one state and another in the adjoining territory as was suggested though in a lighter vein. What to do and which view to follow thus become a constant nag. Over and above, all this are the divergent views expressed by different High Courts. Left with no option, this Tribunal has taken up this task to find if it is possible to reconcile this divergence of opinions emanating from different judgments. Some High Courts are of the view that the Tribunals constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, the RDDBFI Act) would have power to condone the delay in cases filed under the SARFAESI Act whereas some others have held differently. Almost all the judgments cited before the High Courts are the same, but still the different High Courts have expressed divergent views. This has made the task of this Tribunal rather risky and therefore this Tribunal is to tread this path with a great sense of caution coupled with utmost responsibility. There is no intention and rather there cannot be any intention on the part of this Tribunal to express itself on any of the views held by the Hon'ble High Courts. The aim of this Tribunal is only to express itself on the issue involved so as to ensure smooth functioning of this Tribunal in uniform manner.

Initial reaction was to follow the earlier order passed by this Tribunal as that was thought to be a healthy practice to ensure continuity till the time the issue was finally settled. That course also could not be pursued as the Counsel for the parties placed before this Tribunal two different views expressed by this Tribunal on this issue It was then that the Tribunal thought it appropriate to invite larger debate on the issue and take a view with due regard and respect to all the views which have been expressed on this issue by different High Courts to ensure uniformity in disposal of the appeals filed before this Tribunal. With this object, all the cases where the issue of condonation of delay in appeals filed against the orders passed in Securitisation Application (S.A.) were listed for hearing and accordingly the Counsel have been heard. Interesting and lively debate thereafter ensued and a number of Counsel appeared to make submissions. The present two cases were adjourned for passing the order on this issue involved. Other cases were adjourned to different dates and would follow the course as per the decision which is going to be rendered in these appeals.

Kanti Lal Sadh and others have filed this appeal to impugn the order passed by the DRT 1, Delhi dismissing the S.A. filed by them. This appeal is filed with a delay of nine days. Notice was issued on the application (I.A. No. 88/2014) where the prayer was made for condoning the delay. Further action, of course, can only follow if this delay in filing the appeal is condoned. The Counsel for the applicant, Mr. Muneesh Malhotra, and that of the respondent Bank have advanced their respective submissions in this regard.

The second appeal (No. 351/2012)--Smt. Nirmala Jain & Ors. v. UCO Bank & Ors., relates to the power of Debts Recovery Tribunal (DRT) to condone the delay in application filed before it under Section 17 of the SARFAESI Act. The S.A. filed by the appellants was dismissed by the Tribunal below on the ground that it was filed beyond the period of 45 days and hence was barred by limitation. This order is impugned before this Tribunal on the ground that the Tribunal below was not justified in dismissing the S.A. on the ground of delay as the Tribunal would have power to condone the delay. This issue arising in the present appeal before this Tribunal, therefore, would also relate to the power of the DRT to condone the delay while dealing with the S.A. filed by an aggrieved party.

The Counsel appearing to address this Tribunal thus have made submissions on both the issues, i.e., the power of this Tribunal to condone the delay in the appeals filed before it under Section 18 of the SARFAESI Act so also the power of the DRT to condone the delay in filing the S.A. filed under Section 17 of the said Act.

Mr. Muneesh Malhotra has taken the lead to make submissions on both the issues and thus has initiated the debate addressing this Tribunal. The Counsel has made reference to the provisions of the SARFAESI Act and that of the RDDBFI Act. The Counsel would contend that the SARFAESI Act is not a complete code and is required to be considered and judged co-jointly with the provisions contained in the RDDBFI Act. He would first submit that the word 'appeal' used in Section 17 of the SARFAESI Act is a misnomer and in this regard has referred to the observations made in the case of Mardia Chemicals Ltd. & Ors. v. Union of India & Ors., 110 (2004) DLT 665 (SC) : II (2004) BC 397 (SC) : II (2004) SLT 991 : (2004) 4 SCC 311. By referring to the provisions of Section 17(7) of the SARFAESI Act, the Counsel submits that as per this section DRTs are to dispose of the application filed under the SARFAESI Act, 'as far as may be', in accordance with the provisions of the RDDBFI Act and the rules made thereunder. The procedure for disposing of the application by DRT under the RDDBFI Act is regulated by Section 19 of the Act. Accordingly, the Counsel would make a pointed reference to this procedure which in terms of Section 17(7) of the SARFAESI Act may have to regulate the disposal of the application under the SARFAESI Act as far as it may be relevant. Counsel would then refer to Section 24 of the RDDBFI Act, which provides that the provisions of the Limitation Act, 1963 shall, as far as may be, apply to an application made to a Tribunal. Since the filing of an application, (though described as appeal in the heading) is regulated by Section 17 of the SARFAESI Act, this section may need to be noticed here for ease of understanding and appreciation. The section is worded as under:

"17. Right to appeal--(1) Any person (including borrower) aggrieved by any of the measures referred to in Sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter, may make an application along with such fee, as may be prescribed, to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in Sub-section (4) of Section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.

(3) If the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidenced produced by the parties, comes to the conclusion that any of the measures referred to in Sub-section (4) of Section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in Sub-section (4) of Section 13 taken by the secured assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, and pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under Sub-section (4) of Section 13.

(4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under Sub-section (4) of Section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under Sub-section (4) of Section 13 to recover his secured debt.

(5) Any application made under Sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application:

Provided that the Debts Recovery Tribunal may, from time-to-time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under Sub-section (1).

(6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in Sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.

(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder."

Originally, when the Act was introduced, Section 17 of SARFAES1 Act was differently worded. It has taken the present shape after amendment which was necessitated because of the observations made by the Hon'ble Supreme Court. The unamended Section 17 was found to be suffering from the vice of being unjust and unfair by the Hon'ble Supreme Court. The unamended Section 17 of the SARFAESI Act read as under:

"17. Right to Appeal--

(1) Any person (including borrower), aggrieved by any of the measures referred to in Sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken.

(2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent of the amount claimed in the notice referred to in Sub-section (2) of Section 13.

Provided that the Debts Recovery Tribunal may, for reasons in writing waive or reduce the amount to be deposited under this section.

(3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder."

Prior to amendment of Section 17 of the SARFAESI Act. the proceedings instituted under the said Section 17 of the SARFAESI Act was taken as appeal proceedings. The fact that the proceedings filed before the DRT were so construed as an appeal can be made out by making reference to the Statement of Objects and Reasons where the appeal to this Tribunal was referred to as second appeal. Section 18, which made a provision for appeal to this Tribunal, has also undergone a change. The unamended section was as under:

"18. Appeal to Appellate Tribunal--

(1) Any person aggrieved by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal to an appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

(2) Save as otherwise provided in this Act, the appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

The significant changes in Section 17 of the SARFAESI Act can be noticed. The amended section now states that any person aggrieved may make an 'application' though earlier it was referred to as 'appeal'. The causes for which such an application can be filed have also been provided in the section and so also that such an application can be filed within 45 days from the date such action is taken. This application can be filed against the measures taken under Section 13(4) of the SARFAESI Act. Section also provides the orders which the DRT can pass after examining the facts and circumstances and the evidence produced before it. It may be of some importance to notice that this section also provides that the application made in Sub-section (1) shall be dealt with by the DRT as expeditiously as possible and dispose it of within 60 days from the date of such application. The proviso has empowered the DRTs to extend the period from time to time for reasons to be recorded in writing but has also laid down a period of four months for disposing the application under Sub-section (1). There is yet another proviso which gives a right to an applicant to seek direction for its early disposal if the said application filed before the DRT is not disposed of within the said period. Then comes Section 17(7), reference to which has been made above, which provides that DRT shall dispose of the application in accordance with the provisions of the RDDBFI Act and the rules made thereunder. Mr. Malhotra, on the basis of these provisions, would contend that Section 17(7) cannot be read in a manner to extend the period of limitation as this provision would not be enough to construe that the provisions contained in the Limitation Act regarding condonation of delay would stand incorporated in the provisions of the SARFAESI Act.

Attention is invited to Section 36 of the SARFAESI Act, which talks of application of the Limitation Act. This section gives a right to secured creditor to take all or any of the measures under Sub-section (4) of Section 13 of the Act only if these are taken within the period of limitation prescribed in the Limitation Act, 1963. This section is couched in a manner to take away the rights of a secured creditor to take measures if it is not taken within the period of limitation given in this Limitation Act. This section is as under:

"36. Limitation--No secured creditor shall be entitled to take all or any of the measures under Sub-section (4) of Section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963 (36 of 1963)."

Mr. Malhotra submits that this section is one-sided and gives advantage to the secured creditor. As per the Counsel, this provision may to an extent give an indication about the applicability of the provisions of the Limitation Act. A secured creditor thus may take time to take all or any of the measures it is entitled to take under Sub-section (4) of Section 13 of the SARFAESI Act within a period as prescribed under the Limitation Act but would restrict the powers of the debtor or the aggrieved person only to 45 days from the date such measures are taken. The line of submission pursued by Mr. Malhotra, therefore, is that this may be taken as conscious decision of the Legislature to provide only 45 days to an aggrieved person to move an application before the Tribunal. As per the Counsel, had it been other-wise, the Legislature could have easily so provided either by making a provision in the form of proviso to the section itself or by making provision in this regard as is given in Section 36 of the SARFAESI Act.

Since the provisions of the Limitation Act have specifically been made applicable to the Tribunal under the RDDBFI Act, there cannot be much debate about the applicability of the said provisions in this regard. The difficulty would arise when the issue of applicability of the provisions of the Limitation Act are considered to the proceedings made under the SARFAESI Act. Since the provisions of the Limitation Act has not been made specifically applicable under the SARFAESI Act, like Section 24 of the RDDBFI Act, the issue whether power to condone delay in appeal seems to be a grey area. In this context, the provisions of Section 29 of the Limitation Act may assume significance. This section reads as under:

"29. Savings--(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872).

(2) 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.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of 'easement' in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend."

Section 29(2) of the Limitation Act talks of applicability of the provisions of the Limitation Act to cases under special and local laws on fulfilment of condition contained in the sub-section.

On this basis, therefore, the Counsel would contend that the provisions of the Limitation Act would apply unless it is expressly excluded. Section 29(2) of the Limitation Act regulates those cases where any special or local law prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for filing any suit, appeal or application. Then the provisions of Section 3 have been made applicable 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) are to apply so far as and to the extent to which, they are not expressly excluded by such special or local law. As per the Counsel, unless a provision is expressly excluded, the provisions Sections 4 to 24 of the Limitation Act, these provisions are to apply even to special or local laws where a different period of limitation is prescribed. The plea is that the provisions of Sections 4 to 24 of the Limitation Act would apply. Having urged so, Mr. Malhotra would still submit that since Section 5 of the Limitation Act does not apply to the original suit and the application filed under Section 17 has been termed as original suit, the benefit of Section 5 cannot be extended to it as it would not be available in the case of suit as well. He, however, would Advocate the applicability of the remaining provisions the Limitation Act and in this regard would take support from the view expressed by the Division Bench of the Calcutta High Court in the case of Akshat Commercial Pvt. Ltd. & Anr. v. Kalpana Chakraborty & Ors., IV (2010) BC 267 : AIR 2010 Cal. 138. Mr. Malhotra thus would contend that the Appellate Tribunals will have power to condone the delay as the provisions of the Limitation Act would be applicable and so also on other grounds like the applicability of the provisions of the RDDBFI Act for disposal of the application as per the provisions contained in the RDDBFI Act.

This issue can be looked into from another angle. The provisions made under the RDDBFI Act though have provisions to file application, but it is provided in the Act itself that the provisions of the Limitation Act would apply as far as may be to the application made to the Tribunal. Section 24 of the RDDBFI Act provides as under:

"24. Limitation--The provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an application made to a Tribunal."

Obviously, the application before the Tribunal under the RDDBFI Act can be filed in terms of the limitation laid down under the Limitation Act and, therefore, no period of limitation is prescribed under Section 19 of the RDDBFI Act. The period of limitation of 45 days is, however, provided for filing an appeal against the order passed by the DRT with the proviso contained in the section itself that the Appellate Tribunal may entertain an appeal after expiry of 45 days if it is satisfied that there was sufficient cause for not filing it within that period. This then will take care of power of the appellate Tribunal to pass an order where appeal is filed with delay as well. The provisions of Sections 19 and 20 of the RDDBFI Act may be noticed and are as under:

"19. Application to the Tribunal--(1) Where a Bank or a financial institutions has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personalty works for gain: or

(b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or

(c) the cause of action, wholly or in part, arises:

Provided that the Bank or financial institution may, with the permission of the Debts Recovery Tribunal: on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002), if no such action had been taken earlier under that Act:

Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under Sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefor.

1(A) Every Bank being, Multi-State Co-operative Bank referred to in Sub-clause (vi) of Clause (d) of Section 2, may, at its option, opt to initiate proceedings under the Multi-State Co-operative Societies Act, 2002 (39 of 2002) to recover debts, whether due before or after the date of commencement of the Enforcement of the Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 from any person instead of making an application under this Chapter.

1(B) In case, a Bank being, Multi-State Co-operative Bank referred to in Sub-clause (vi) of Clause (d) of Section 2 has filed an application under this Chapter and subsequently opts to withdraw the application for the purpose of initiating proceeding under the Multi-State Co-operative Societies Act, 2002 (39 of 2002) to recover debts, it may do so with the permission of the Tribunal and every such application seeking permission from the Tribunal to withdraw the application made under Sub-section (1A) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided that in case the Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefor.

(2) Where a Bank or a financial institution, which has to recover its debt from any person, has filed an application to the Tribunal under Sub-section (1) and against the same person another Bank or financial institution also has claim to recover its debt, then, the later Bank or financial institution may join the applicant Bank or financial institution at any stage of the proceedings, before the final order is passed, by making an application to that Tribunal.

(3) Every application under Sub-section (1) or Sub-section (2) shall be in such form and accompanied by such documents or other evidence and by such fee as may be prescribed:

Provided that the fee may be prescribed having regard to the amount of debt to be recovered:

Provided further that nothing contained in this sub-section relating to fee shall apply to cases transferred to the Tribunal under Sub-section (1) of Section 31.

(3A) If any application filed before the Tribunal for recovery of any debt is settled prior to the commencement of the hearing before that Tribunal or at any stage of the proceedings before the final order is passed, the applicant may be granted refund of the fees paid by him at such rates as may be prescribed.

(4) On receipt of the application under Sub-section (1) or Sub-section (2), the Tribunal shall issue summons requiring the defendant to show cause within thirty days of the service of summons as to why the relief prayed for should not be granted.

The defendant shall, within a period of thirty days from the date of service of summons, present a written statement of this defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, allow not more than two extensions to the defendant to file the written statement.

(5A) After hearing of the application has commenced, it shall be continued from day-to-day until the hearing is concluded:

Provided that the Tribunal may grant adjournments if sufficient cause is shown, but no such adjournment shall be granted more than three times to a party and where there are three or more parties, the total number of such adjournments shall not exceed six:

Provided further that, the Presiding Officer may grant such adjournments on imposing such costs as may be considered necessary.

(6) Where the defendant claims to set-off against the applicant's demand any ascertained sum of money legally recoverable by him from such applicant, the defendant may, at the first hearing of the application, but not afterwards unless permitted by the Tribunal, present a written statement containing the particulars of the debt sought to be set-off.

(7) The written statement shall have the same effect as a plaint in cross-suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off.

(8) A defendant in an application may, in addition to his right of pleading a set-off under Sub-section (6), set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not.

(9) A counter-claim under Sub-section (8) shall have the same effect as a cross-suit so as to enable the Tribunal to pass a final order on the same application, both on the original claim and on the counter claim.

(10) The applicant shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Tribunal.

(11) Where a defendant sets up a counter-claim and the applicant contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent action, the applicant may, at any time before issues are settled in relation to the counter-claim, apply to the Tribunal for an order that such counter-claim may be excluded, and the Tribunal may, on the hearing of such application, make such order as it thinks fit.

(12) The Tribunal may makes an interim order (whether by way of injunction or stay or attachment) against the defendant to debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal.

(13)(A) Where, at any stage of the proceedings, the Tribunal is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay or frustrate the execution of any order for the recovery of debt that may be passed against him--

(i) is about to dispose of the whole or any part of his property; or

(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Tribunal; or

(iii) is likely to cause any damage or mischief to the property or affect its value by misuse or creating third party interest.

The Tribunal may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Tribunal, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the value of the same or such portion thereof as may be sufficient to satisfy the certificate for the recovery of debt, or to appear and show cause why he should not furnish security.

(B) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Tribunal, the tribunal may order the attachment of the whole or such portion of the properties claimed by the applicant as the properties secured in his favour or otherwise owned by the defendant as appears sufficient to satisfy any certificate for the recovery of debt.

(14) The applicant shall, unless the Tribunal otherwise directs, specify the property required to be attached and the estimated value thereof.

(15) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property specified under Sub-section (14).

(16) If an order of attachment is made without complying with the provisions of Sub-section (13), such attachment shall be void.

(17) In the case of disobedience of an order made by the Tribunal under Sub-sections (12), (13) and (18) or breach of any of the terms on which the order was made, the Tribunal may order the properties of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Tribunal directs his release.

(18) Where it appears to the Tribunal to be just and convenient, the Tribunal may, by order--

(a) appoint a receiver of any property, whether before or after grant of certificate for recovery of debt;

(b) remove any person from the possession or custody of the property.

(c) commit the same to the possession, custody or management of the receiver;

(d) confer upon the receiver all such powers, as to bringing and defending suits in the Courts or filing and defending application before the Tribunal and for the realization, management protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Tribunal thinks fit; and

(e) appoint a Commissioner for preparation of an inventory of the properties of the defendant for the sale thereof.

(19) Where a certificate of recovery is issued against a company registered under the Companies Act, 1956 (1 of 1956) the Tribunal may order the sale proceeds of such company to be distributed among its secured creditors in accordance with the provisions of Section 529-A of the Companies Act, 1956 and to pay the surplus, if any, to the company.

(20) The Tribunal may, after giving the applicant and the defendant an opportunity of being heard, pass such interim or final order including the order for payment of interest from the date on or before which payment of the amount is found due upto the date of realization or actual payment, on the application as it thinks fit to meet the ends of justice.

(20A) Where it is proved to the satisfaction of the Tribunal that the claim of the applicant has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant has repaid or agreed to repay the claim of the applicant, the Tribunal shall pass orders recording such agreement, compromise or satisfaction of the claim.

(21) The Tribunal shall send a copy of every order passed by it to the applicant and the defendant.

(22) The Presiding Officer shall issue a certificate under his signature on the basis of the order of the Tribunal to the Recovery Officer for recovery of the amount of debt specified in the certificate.

(23) Where the Tribunal, which has issued a certificate of recovery, is satisfied that the property is situated within the local limits of the jurisdiction of two or more Tribunals, it may send the copies of the certificate of recovery for execution to such other Tribunals where the property is situated:

Provided that in a case where the Tribunal to which the certificate of recovery is sent for execution finds that it has no jurisdiction to comply with the certificate of recovery, it shall return the same to the Tribunal which has issued it.

(24) The application made to the Tribunal under Sub-section (1) or Sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within one hundred and eighty days from the date of receipt of the application.

(25) The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice."

"20. Appeal to the Appellate Tribunal--(1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.

(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.

(3) Every appeal under Sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under Sub-section (1), the appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming modifying or setting aside the order appealed against.

(5) The appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.

(6) The appeal filed before the Appellate Tribunal under Sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal."

Majority of the Counsel appearing before me have advocated this view and have more or less supported the submissions made by Mr. Muneesh Malhotra so far condoning the delay in appeal is concerned Mr. Malhotra has placed almost all the relevant judgments on the issue under consideration. These judgments would invite attention in detail.

Mr. Saxena would support Mr. Malhotra, but would further submit that Section 5 of the Limitation Act will also apply and as such even the DRT will have the power to condone the delay. The Counsel further submits that there cannot otherwise be complete ouster of applicability of provisions of the Limitation Act, especially Sections 4, 5, 6, 12 and 14 thereof. As per the Counsel, if the period of limitation for filing an appeal is expiring on a holiday, obviously, the appellant would be in a position to file appeal immediately on the next working day of the Tribunal Similarly, the period spent in getting or issuance of certified copy of the order may require to be excluded for computing the period of limitation. Section 14 of the Limitation Act apparently is not seen to be excluded for its applicability. Counsel contends that law of limitation being procedural in nature, it ought to be used in aid of advancing the cause of dispensation of substantial justice.

Mr. S.L. Gupta has supported the submissions but has advocated somewhat different lines to make his submissions. By referring to the provisions of Section 18(2) of the SARFAESI Act, the Counsel would submit that the appeal filed before the appellate Tribunal against the order passed in S.A., as far as may be is required to be disposed of in accordance with the provisions of the RDDBFI Act. He would contend that the procedure for disposing of the appeal is what is provided under the RDDBFI Act. By virtue of Section 18(2) of the SARFAESI Act, the same procedure has been made applicable for disposing of the appeal filed under the SARFAESI Act. To make good his view point, the Counsel submits that the procedure to regulate disposal of the appeal is given only in Sections 20 and 21 of the RDDBFI Act Rest of the provisions contained in the RDDBFI Act have no relevance in regard to the procedure required to be followed for disposal of the appeal Since Section 21 of the RDDBFI Act only talks of deposit of amount of debt due on filing of appeal, it will not be attracted in any manner to proceedings under the SARFAESI Act as the former Act itself contains a provision in this regard in the form of proviso to Section 18(1) of the Act. Since the provisions in regard to fee and the pre-deposit are made in Section 18 of the SARFAESI Act, it will prevail and accordingly what is provided in Section 21 in this regard would have no relevance and applicability. As per the Counsel, different period of limitation is prescribed under the two Acts and, accordingly, the limitation provided under the provisions SARFAESI Act would prevail and the one provided under the RDDBFI Act cannot be applied. Though no provision has been made to extend the 30 days period provided under the SARFAESI Act. but also there is no provision made to expressly exclude power of the Tribunal to extend the said period By virtue of Sub-section (2) of Section 18 the enabling provision made under Section 20 of the RDDBFI Act to extend the time period laid down as Section 20 to this extent would apply on the ground that except for this aspect there is no other issue for which the applicability of the provisions of the RDDBFI Act would be relevant so far as the disposal of the appeal filed under the provisions of the SARFAESI Act is concerned. Counsel has urged that this is the only purpose for which Section 18(2) of the SARFAESI Act seems to have been enacted. As per the Counsel, there was no need to give this enabling power once Section 18(2) empower the Appellate Tribunal to dispose of the appeal in accordance with the provisions of the RDDBFI Act. By virtue of this enabling provision, the power to extend the period given in Section 20 of the RDDBFI Act thus would be applicable for disposing of the appeal filed under the SARFAESI Act. As per the Counsel, there is no need to go into the issue of applicability of the provisions of the Limitation Act once the enabling power has itself been provided in this special legislation to extend the period of limitation prescribed for filing an appeal. As per the Counsel, no procedure has been prescribed under the SARFAESI Act as the procedure prescribed under the RDDBFI Act was made applicable for disposal of the appeal and the application filed under the SARFAESI Act. Accordingly, the Counsel would plead that the Tribunal would have power to condone the delay in the appeals filed before this Tribunal.

It may be appropriate here to notice, the amended Section 18 of the SARFAESI Act which reads:

"18. Appeal to Appellate Tribunal--(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal:

Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:

Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent, of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:

Provided also that the appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five percent, of debt referred to in the second proviso.

(2) Save as otherwise provided in this Act, the appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (51 of 1993) and rules made thereunder."

Mr. Sanjeev Bhandari in his written submissions has taken different stand on the issue. He has submitted that this Tribunal as well as the DRT would not have any power to condone the delay either in the application or in the appeal filed under the SARFAESI Act. After making reference to the unamended and amended provisions of Sections 17 and 18 of the SARFAESI Act. the Counsel has contended that the reading and comparing these provisions with other provisions of the SARFAESI Act as well as with those under the RDDBFI Act would make it clear that the intention of the legislature was not to apply the provisions of the Limitation Act to proceedings under the SARFAESI Act. As per the Counsel, application of the Limitation Act was restricted to the measures taken in Sub-section (4) of Section 13 and so also the Legislature restricted the provisions of the Limitation Act for its applicability under the RDDBFI Act to 'application' made to a Tribunal, as is given in Section 24 of the Act. As per the Counsel, the word 'application' given in Section 24 of the RDDBFI Act is defined in Rule 2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993 and so this word has to take its meaning from the said definition. On this basis, the Counsel submits that the 'application' so defined would not cover the application filed under Section 17(1) or under Section 18(1) of the SARFAESI Act, The word 'application' has been defined to mean "an application filed under Section 19 or under Section 31A and includes an "appeal" filed under Section 30(1) of the Act". On this basis, the Counsel submits that the definition of the word 'application' would not cover the application used in Section 17 of the SARFAESI Act and so no aid can be taken from Section 24 of the RDDBFI Act as it only relates to an application under Section 19 or under Section 31A and would include appeal under Section 30(1) of the RDDBFI Act. On this basis, the Counsel would then submit that once the provisions of the Limitation Act will not apply to the application filed under Section 17 of the SARFAESI Act, the provisions of Section 5 of the Limitation Act would also not be applicable to Section 17 of the SARFAESI Act.

So far as the aspect of condonation of delay in appeal is concerned, Counsel submits that the provisions of the Limitation Act have been specifically excluded as can be seen from Section 34 of the SARFAESI Act in the light of Section 24 of the RDDBFI Act. As per the Counsel, if the Legislature had intended to apply the provisions of the Limitation Act, it would have made some specific provisions as is in the case of Sub-section (3) of Section 20 of the RDDBFI Act or could have specially provided and made Section 5 of the Limitation Act applicable by assigning the same meaning to the definition of the word 'application' as given in Rule 2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993. Counsel accordingly would contend that the provisions of the Limitation Act would, therefore, not apply to the appeal filed under Section 18 of the SARFAESI Act also.

It is not a surprise for me to note that the Counsel have relied upon same judgments to plead differently as various High Courts have also basically referred to same judgments to reach at different conclusions. The Counsel for the respective parties in support of their submissions would advocate acceptance of a view which they have found justified. Of course, almost all the judgments have been extensively referred to and placed before me for due consideration. Accordingly, the judgments cited would call for detailed analysis to form a particular view one way or the other. The confusion got a bit confounded when some of the judgments were rendered in regard to condonation of delay in the appeals and did not consider the issue of condonation of delay in filing the applications under Section 17 of the SARFAESI Act. On the other hand, some of the judgments have considered the issue of condonation of delay in filing application under Section 17 of the SARFAESI Act only. Since both these issues have now been raised before me, these would require consideration.

Let the beginning be made by first referring to the view expressed by the Delhi High Court as well as the Punjab and Haryana High Court as views of these Courts would have direct bearing as far as the exercise of jurisdiction by this Tribunal is concerned.

Poonam Garg v. The Chief Manager, State Bank of Patiala & Anr., II (2014) BC 118 : 207 (2014) DLT 180 (DB) : WP(C) 527/2012 is a case decided by the Division Bench of the Delhi High Court on 10.1.2014, In this case the Court has held that the DRAT does not have power to condone the delay in the appeal filed under Section 18 of the SARFAESI Act. The contrary view is expressed by Punjab and Haryana High Court in Surinder Mahajan v. Debts Recovery Appellate Tribunal & Ors., IV (2013) BC 531 (DB) (P&H) by holding that the remedy provided to any person including a borrower under Section 17 of the Act is in response to the actions and measures taken by the secured creditor through an application which is in the nature of objections to the action taken by the secured creditor. It is further held that the provisions of Sections 4 to 24 of the Limitation Act are applicable to the proceedings initiated by any person aggrieved, including a borrower before the Debts Recovery Tribunal under Section 17 of the Act and the provisions of Sections 4 to 24 of the Limitation Act are also applicable to appeal preferred against an order passed by the Debts Recovery Tribunal before the Debts Recovery Appellate Tribunal under Section 18 of the Act. The judgment passed by the Punjab and Haryana High Court is dated 5.4.2013 and is prior in time to the decision of the Delhi High Court in Poonam Garg's case (supra), but, still, this judgment does not find noticed in the judgment passed by the Delhi High Court Rather, the Delhi High Court has made reference to the decision of the Madhya Pradesh High Court in the case of M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Ors., I (2013) BC 667 : AIR 2011 MP 205, and the view expressed by the Bombay High Court in the case of Madhukar Govindrao Thaware v. Central Bank of India, III (2012) BC 272 (SC) : 2012(1) DRTC 14 (Bom.). The Hon'ble High Court of Delhi has based its decision on these two judgments. There was, however, another judgment of the Bombay High Court in the case of UCO Bank, Mumbai v. M/s. Kanji Manji Kothari and Co., Mumbai, 2008 (4) Mh.L.J. 424, which apparently was not placed before the Delhi High Court, Undoubtedly, the Madhya Pradesh High Court has considered the issue regarding power to condone the delay in an appeal filed under Section 18 of the SARFAESI Act before the DRAT and has held that the appellate Tribunal has no power to condone the delay. The Hon'ble Madras High Court in the case of Dr. Zubida Begum & Anr. v. Indian Bank & Anr., I (2013) BC 67 (DB) : 2012 (5) CTC 369, has also taken a similar view and has held that Section 29(2) of the Limitation Act does not apply to appeal under Section 18 of the SARFAESI Act and therefore Section 5 of the Limitation Act cannot be pressed into service to condone the delay in filing the appeal. However, both the Courts have not considered or expressed any view so far as the power of condonation of delay in filing of application under Section 17 of the SARFAESI Act is concerned.

The decision of the Bombay High Court in the case of Kanji Manji Kothari's case (supra) and another judgment of the Madras High Court in the case of Punnu Swami v. The Debts Recovery Tribunal, 2009 (3) BJ 401, were placed before the Madhya Pradesh High Court where both the High Court of Bombay and Madras had taken a view that Section 5 of the Limitation Act applies for condoning delay in application filed under Section 17 of the SARFAESI Act. Both these cases were distinguished on the ground that the issue considered in these cases was regarding applicability of Section 5 of the Limitation Act to application filed under Section 17 of the SARFAESI Act and not in cases of appeal filed under 18 of the SARFAESI Act, As per the Division Bench of the Madhya Pradesh High Court, Section 18 has not been referred to in these cases. These decisions accordingly were not held applicable to the cases by the said High Courts.

Calcutta High Court in Akshat Commercial's case (supra) has taken some what different view than those expressed by the Bombay High Court as well as Madras High Court so far as the applicability of the Limitation Act to the application filed under Section 17 of the SARFAESI Act is concerned. As per Calcutta High Court, it was never the intention of the legislature to apply Section 5 of the Limitation Act to such original proceedings by giving power to entertain application under Section 17(1) of the SARFAESI Act. The Court accordingly has held that the period of 45 days provided under Section 17 of the SARFAESI Act, which is original in nature, cannot be extended by taking aid of Section 5 of the Limitation Act. The High Court of Calcutta in this case has made reference to a large number of judgments and did not accept the view expressed in Kanji Manji Kothari's case (supra) on the ground that in this case the Bombay High Court did not take note of the decision of the Supreme Court in the case of Gopal Sardar v. Karuna Sardar, I (2004) CLT 510 (SC) : II (2004) SLT 428 : 2004 (4) SCC 252 and also the fact that the Court did not consider whether the proceedings under Section 17(1) of the SARFAESI Act should be treated to be a suit for the purpose of application of Section 5 of the Limitation Act.

Division Bench of Andhra Pradesh High Court in the case of Smt. Sajida Begum v. State Bank of India, AIR 2013 AP 24, has expressed itself to say that the provisions of Section 5 of the Limitation Act are applicable to the proceedings before DRAT under Section 18 of the SARFAESI Act. The said Division Bench had before it the judgment of High Court of Madhya Pradesh in Seth Banshidhar Kedia's case (supra), and after considering the same has taken a contrary view by holding that the said judgment does not reflect a correct view as it is contrary to the ratio laid down by Hon'ble Supreme Court judgment in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5. Even Karnataka High Court has also taken similar view in the case of Sri C. Laxman Gowda & Anr. v. Debts Recovery Appellate Tribunal & Ors., 2013 Law Suit (Kar) 3121. Karnataka High Court has accepted the view expressed by Bombay High Court in Kanji Manji Kothari's case (supra) and of Punjab and Haryana High Court in Surinder Mahajan's case (supra). The view taken by Andhra Pradesh High Court in Sajida Begum's case (supra) has also found favour with Karnataka High Court and the Court has not agreed with the ratio of law laid down by Madhya Pradesh High Court in the case of Seth Banshidhar Kedia's case (supra). These conflicting views thus have been placed before this Tribunal. There is a need to analyze all these views to see which should appear more persuasive.

This Tribunal, most respectfully and with utmost humility would wish to record here that it has no intention to express itself in any manner against any view taken by any High Court. All the views expressed would command due respect. This Tribunal being in a predicament is making an endeavour to find a way out so that one view is pursued by this Tribunal for the litigant to understand and to act accordingly. It is only an attempt to rationalize the conflict. For this, purpose, this Tribunal may now proceed to consider these judgments on the basis of the reasoning contained therein Since the view expressed by Madhya Pradesh High Court is first in the line of decisions on the issue, let the discussion begin from the said judgment.

In Seth Banshidhar Kedia's case (supra) the issue under consideration was on application filed by the borrower against the action taken by the Bank in putting the mortgaged property to auction, which was schedule for 29.7.2010. The DRT, Jabalpur dismissed the application on 28.7.2010 against which an appeal was filed before DRAT, Allahabad. This appeal was filed with a delay of two days and thus was accompanied by an application seeking condonation of delay. The appellate Tribunal, relying on its earlier decisions in Misuki Exports Pvt. Ltd. v. State Bank of India, III (2008) BC 51 (DRAT) and State Bank of India v. Sudarshan Doors (P) Ltd., II (2008) BC 72 (DRAT), dismissed the appeal on the ground that the Appellate Tribunal has no power to condone the delay. This order was challenged by filing Writ Petition before the Madhya Pradesh High Court It was submitted before the High Court that SARFAESI Act does not exclude either expressly or impliedly the application of the provisions of the Limitation Act, 1963 and, therefore, the appellate Tribunal would have full power under Section 29(2) of the Limitation Act to consider on merit the question of condonation of delay in filing the appeal under Section 5 of the Limitation Act. In support of this argument, the Counsel relied upon the Bombay High Court judgment in the case of Kanji Manji Kothari's case (supra) and that of Madras High Court in the case of Punnu Swami (supra). As already noticed above, the Bombay High Court in Kanji Manji Kothari's case (supra) has taken a view that Section 5 of the Limitation Act apply to the proceedings under the SARFAESI Act.

Counsel for the respondent, however, relied upon the case of Fairgrowth Investments Limited v. Custodian, IV (2004) CLT 156 (SC) : VI (2004) SLT 376 : (2004) 11 SCC 472. It may need a notice here that the appellate Tribunal, while deciding the case of Misuki Exports Pvt. Ltd. (supra) had relied upon the decisions of the Hon'ble Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 as well as on Fairgrowth Investments' case (supra). The Court, after making detailed reference to the provisions of the SARFAESI Act, took notice of the provisions of Section 18 of the Act which deals with the appeal filed before the appellate Tribunal. The Court has observed that there is no express provision in the SARFAESI Act empowering the Appellate Tribunal to condone the delay in filing the appeal. As per the Court, the only source of power in this regard could be Section 5 of the Limitation Act provided it applied to the SARFAESI Act. Noticing the provisions of Section 29(2) of the Limitation Act, the Court has referred to the case of Fairgrowth Investments' case (supra). As per the Madhya Pradesh High Court, the Supreme Court has held that the general rule, as far as special law and local Acts are concerned, is that the specified provisions, including Section 5 of the Limitation Act, will apply provided the special or local Act provides a period of limitation different from that prescribed under the Limitation Act and that the special/local Act does not expressly exclude the application of the Limitation Act. The ratio of law which would emerge from the case of Fairgrowth Investments (supra) thus for the applicability of the provisions of the Limitation Act as can be mentioned is:

(i) that special law or local Acts has provided the period of limitation different from that prescribed under the Limitation Act; and

(ii) that the special and local Acts does not expressly exclude the application of the Limitation Act.

Though in some of the earlier judgments it was viewed that exclusion has to be express so far as application of Limitation Act is concerned, but the Supreme Court in Hukumdev's case (supra) has held that expression 'expressly exclude' would also include 'exclusion by necessary implication'. As such even in cases where special law does not exclude provisions of Sections 4 to 24 of the Limitation by any express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions are excluded. There cannot be scope of any quarrel as far as this position of law settled by the Hon'ble Supreme Court is concerned.

The Hon'ble High Court then made reference to the provisions of Section 18(2) of the SARFAESI Act and that of Section 20 of the RDDBFI Act and after comparing the said provisions has held as under:

"16. 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)."

From the above finding recorded by the High Court, it would clearly appear that the Court has taken a view that the power of appellate Tribunal to condone the delay has been excluded as no provision like Section 20 of the RDDBFI Act is made under the SARFAESI Act. On this basis, it has been held that this in itself does not leave any iota of doubt that the legislature has not conferred the power to condone the delay on the appellate Tribunal under Section 18 of the SARFAESI Act. To my mind, the exclusion inferred by the Court by implication may not appear appropriate. Exclusion has to be specific. Exclusion would mean if there was something provided earlier but it is now excluded. It can more appropriately be said that the provision or power to condone the delay has not been included in Section 18 of the SARFAESI Act Exclusion would be when it was earlier provided but is excluded now. One may now look for if there is any reason for not including the provision in the nature as contained in the RDDBFI Act. In other words, let us see if it was not so included or if there was any need to so provide if we read the provisions of Section 18 of the SARFAESI Act as such. A view is possible that there was no need to include the power to condone the delay in view of provision of Section 18(2) of the SARFAESI Act. This sub-section enables the appellate Tribunal to dispose of the appeal in accordance with the provisions of the RDDBFI Act and the rules made the thereunder. The procedural rule to decide the appeal having been provided under the RDDBFI Act need not have been specifically provided under the provisions of the SARFAESI Act and specially in Section 18 of the SARFAESI Act. Perusal of Section 20 of the RDDBFI Act. which has been reproduced above, would reveal that this section is an enabling provision for the appellate Tribunal to entertain an appeal after expiry of the period of 45 days if it is satisfied that there is sufficient cause for not filing the appeal within that period. It may also need a notice here that on similar analogy the Madhya Pradesh High Court has held the provisions of the RDDBFI Act would apply for deciding the application under Section 17 of the SARFAESI Act. The reasoning given in this regard by the High Court is that as per Sub-section (7) of Section 17 of the SARFAESI Act the Tribunal is to dispose of an application in accordance with the provisions of the RDDBFI Act, as far as may be. Section 24 of the RDDBFI Act deals with the Limitation Act by providing that the provisions of the Limitation Act shall, as far as may be, apply to the application made to the Tribunal. Notice is taken that application under Section 17 can be made within 45 days from the date when action or measures referred to in Section 13(4) of the SARFAESI Act are initiated. The person aggrieved by an order passed by the Tribunal under Section 17 of the SARFAESI Act can prefer an appeal under Section 18 of the said Act. Noticing that Section 24 of the RDDBFI Act has made provisions of Limitation Act applicable to the Tribunal, it is viewed that the Tribunal can give benefit of Section 5 of the Limitation Act while dealing with the application under Section 17, but appellate Tribunal cannot do so while considering appeal under Section 18. From the foregoing conclusion, it can be stated that the Court did apply the provisions of the RDDBFI Act for disposal of applications filed under the SARFAESI Act. That is how the Court has viewed that the Limitation Act would apply to an application filed under Section 17 of the SARFAESI Act. This could not have been but by virtue of Section 17(7) of the SARFAESI Act. The Court apparently did not take notice of similar provisions made in Section 18(2) of the SARFAESI Act. In my view, there may not have been any need to specifically so provide once procedural provisions of deciding the appeal laid down in Section 20 of the RDDBFI Act could be so imported while deciding appeal under Section 18 of the SARFAESI Act because of Section 18(2) of the said Act. The observation that there is not an iota of doubt that the Legislature has consciously intended not to confer the power to condone the delay cannot reasonably be drawn in view of the position as noted and specially in view of provisions of Section 18(2) of the SARFAESI Act. In my view, the Madhya Pradesh High Court in this case has not rightly considered and appreciated the operation of Section 18(2) of the SARFAESI Act. This aspect would also find noticed and considered in some of the judgments subsequently rendered by the different High Courts. In this context only one may have to take note of the provisions of Section 35 of the SARFAESI Act, which makes the provisions of this Act to override other laws. This section reads as under:

"35. The provisions of this Act to override other laws--The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."

Section 37 of the SARFAESI Act provides that application of other laws is not barred. This section is reproduced below:

"37. Application of other laws not barred--The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force."

In addition to this, Section 36 of the SARFAESI Act provides that no secured creditor shall be entitled to take all or any of the measures under Sub-section (4) of Section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963. Thus, the Limitation Act is not alien to the provisions of the SARFAESI Act. It may have been made applicable only to the claim being preferred by the secured creditor but it would not lead to an inference that the aim of the Legislature was to exclude the applicability of the provisions of the Limitation Act. Once the procedure to be followed is not otherwise regulated under the SARFAESI Act and the procedure as prescribed under the RDDBFI Act is made applicable, the provisions regulating the aspect of limitation in the RDDBFI Act may have to be read into the provisions of the SARFAESI Act to the extent these are made applicable.

In Poonam Garg's case (supra), the Delhi High Court, as already noticed, has taken a view that the appellate Tribunal does not have the power to condone the delay in filing of the appeal under Section 18 of the SARFAESI Act. In this case, the appeal was filed with a delay of eight days against the order passed by DRT-II, Chandigarh which had declined to recall the order dismissing the S.A. in default. The miscellaneous application filed for the recall of the said order was also dismissed for the same reason. This Tribunal, while following the view of the appellate Tribunal at Allahabad, came to hold that this Tribunal did not have the power to condone the delay in filing the appeal. This judgment is impugned before the High Court of Delhi when the Court has considered the question whether the appellate Tribunal would have the jurisdiction to condone the delay in filing the appeal by invoking the provisions of Section 5 of the Limitation Act. The line of submission pursued before the Hon'ble Delhi High Court is that the SARFAESI Act has followed the RDDBFI Act where the power to condone the delay in case of appeal under Section 20 of the Act is provided It was urged that under the SARFAESI Act not only the period for filing the appeal is curtailed to 30 days, but there is no provision like Section 20(3) made under the provisions of the RDDBFI Act to entertain appeal after expiry of period as laid down, Relying on the case of Seth Banshidhar Kedia 's case (supra) and after noticing the ratio laid down in Fairgrowth Investments' case (supra) and Hukumdev's case (supra) the Delhi High Court has held that expression 'expressly excluded' would also include 'exclusion by necessary implication'. Having made reference to various judgments, the Court has observed that if the provisions contained in Sections 4 to 24 of the Limitation Act were to apply to the SARFAESI Act, by virtue of Section 29(2) of the Limitation Act, it would have to be seen as to what extent they have been made applicable under the SARFAESI Act and as to whether these are or are not expressly excluded by the SARFAESI Act. The Court otherwise accepted the position that provisions of the SARFAESI Act have to be read in juxtaposition with the provisions of the RDDBFI Act. In this regard, pointed reference is made to Section 18(2) of the SARFAESI Act, already reproduced above. It is then noticed that unless something is expressly provided in the SARFAESI Act with regard to the disposal of the appeal, the same has to be disposed of in accordance with the provisions of the RDDBFI Act and the rules made thereunder. The Court accordingly examined the provisions of the RDDBFI Act concerning the disposal of appeals contained under the Act. Having done so, the Court has viewed that Section 24 of he RDDBFI Act specifically stipulates that the provisions of the Limitation Act shall, as far as may be, apply to an application made to a "Tribunal". As per the Court, two things are important. The first that the provisions of the Limitation Act, 1963 have been specifically made applicable under the RDDBFI Act. The second that the provisions of the Limitation Act, 1963 have been made applicable only to an 'application' made to a Tribunal and not to an appeal before the appellate Tribunal. The Court has also referred to the provisions of Section 36 of the SARFAESI Act, which has made the provisions of the Limitation Act applicable in respect of a secured creditor. On this basis it is viewed that the Limitation Act has been made applicable and it has been made applicable only to that extent and unlike the provisions of the RDDBFI Act, the Limitation Act has not even been made applicable to an application under Section 17, The Court has accordingly held that the Tribunal will not have power to condone the delay in filing the appeal.

It may need a notice that except for the judgment rendered by the Madhya Pradesh High Court, no other view apparently was placed before the Hon'ble Delhi High Court. The Counsel appearing before the Court failed to place the ratio of law laid down in the case of Kanji Manji Kothari (supra) and so also the case of Surinder Mahajan (supra) decided by Punjab and Haryana High Court. In fact, the view expressed by the Andhra Pradesh High Court in the case of Sajida Begum (supra) or that of Karnataka High Court in the case of Sri C. Laxman Gowda (supra) were also not placed before the Delhi High Court while it decided Poonam Garg 's case. In all these cases the view is that the provisions of the Limitation Act apply to Section 18 of the SARFAESI Act and that the delay in filing the appeal can be condoned by the appellate Tribunal. The High Court of Punjab and Haryana in the case of Surinder Mahajan (supra) has also held that the provisions of the Limitation Act would apply to application filed under Section 17 of the SARFAESI Act as well as to appeals filed under Section 18 thereof, but all these views and the reasoning contained therein were not placed before the Hon'ble Delhi High Court. A possibility cannot be ruled out that if these judgments had been placed before the Hon'ble Delhi High Court, it might have been persuaded to take a different view or still may have taken the same view despite these judgments Even if Delhi High Court had taken the same view, one would have had the benefit of reasoning as to why the view expressed by as many as four or five different High Court had not found favour with the Delhi High Court. Facts remains that the Delhi High Court was denied the advantage of the views expressed by different High Courts. The fact also cannot, however, be ignored that these judgments and the reasoning contained therein have escaped the kind consideration of the Delhi High Court. If the Counsel appearing before the High Court of Delhi had been a bit more vigilant, they could have even placed two other decisions of Gujarat High Court in the case of Corporation Bank v. Jayshreeben & Ors., 2012 Law Suit (Guj) 1328, which had approved another decision of the Single Bench in the same Court case of Union Bank of India v. Chairperson, Debts Recovery Appellate Tribunal & Ors., AIR 2010 Gujarat 63.

Before taking up the abovenoticed judgment for discussion and consideration, I may take note of another judgment of the Madras High Court in the case of Dr. Zubida Begum (supra) where the view expressed is that Section 29(2) of the Limitation Act does not apply to the appeal under Section 18 of the SARFAESI Act and, therefore, Section 5 of the Limitation Act cannot be pressed into service. The Court in this case has observed Section 18 of the SARFAESI Act mandating that the appeal be filed within 30 days from the date of receipt of copy of the order with no express provision either extending provisions of the Limitation Act, 1963 Act or excluding the same under the SARFAESI Act. As per the Court, if Section 5 of the Limitation Act is extended to appeal under Section 18 of the SARFAESI Act, then the appeal could be belatedly filed to revive a dead matter, thereby frustrating intention of Legislature. As per the Court, the decision of the Parliament to limit the period of filing appeal under Section 18 of the SARFAESI Act is a conscious decision and the Court cannot conduct enquiry to decide whether time provided under the provision is too short to approach appellate Tribunal. It is held that the intention of the Legislature to exclude applicability of Section 29(2) and Section 5 of the Limitation Act to an appeal before the appellate Tribunal is held to be conscious and intentional and consequently, the Debts Recovery Appellate Tribunal has no power to condone the delay. The reasoning which apparently has weighed with the Court is that the provision as contained in Section 20(3) of the RDDBFI Act has been excluded while enacting the SARFAESI Act. This was to make the recovery fast-track. While discussing Sub-section (2) of Section 18 of the SARFAESI Act, the Court has observed that it is very specific and its only purpose is for disposal of appeal under the SARFAESI Act. The Court otherwise accepted the position that the provisions of the RDDBFI Act are made applicable but held that the question of disposal of the appeal would arise only once the appeal is entertained. As per the Court, stage is not reached that the appeal is properly constituted and so the question of disposal of appeal in accordance with the RDDBFI Act would arise only in case the appeal is entertained after condoning the delay. The relevant observation in this regard are as under:

"40. Sub-section (2) of Section 18 is very specific that it is only for the purpose of disposal of the Appeals under SARFAESI Act the provisions of RDDBFI Act are made applicable. The question of disposal of the Appeal would arise only after entertaining this Appeal. We have not reached that stage now. We are now considering the question as to whether a belated Appeal could be entertained by the appellate Tribunal. In case there is no power to condone the delay, there is no question of entertaining the Appeal. The question of disposal of the Appeal in accordance with the provisions of the RDDBFI Act would arise only in case the Appeal is entertained. The fact that the Appellate Tribunal is obliged to decide the Appeal in accordance with the provisions of the RDDBFI Act, does not go to show that even for entertaining the Appeal the provisions of RDDBFI Act are made applicable."

The Court in this case, after making reference to Sub-section (3) of Section 20, has observed that this gives a discretion to the appellate Tribunal to extend the time for filing a statutory appeal. While enacting the SARFAESI Act, the Parliament has very consciously excluded the application of the provisions of the Limitation Act to an appeal under Section 18 of the Act. With utmost respect, I may observe that while making this observation, the Court perhaps has not correctly appreciated Section 18(2) of the SARFAESI Act, As already noticed, the High Court did not notice this provision by holding that the question of following this procedure would arise only once the appeal is entertained. That line of reasoning may not sound very appropriate to ignore the provisions of Section 18(2) to deny the power to appellate Tribunal to apply the procedure contained under the RDDBFI Act for the purpose of condoning the delay.

In fact, the Karnataka High Court in the case of Sri C. Laxman Gowda case (supra) has considered this reasoning adopted by the Madras High Court. As per the Karnataka High Court, in this case what would emerge on reading of Sub-section (2) of Section 18 is that if there is no express provision made under the Act, the same would be applicable. Section 18 of the SARFAESI Act does say that if there is no express provision on any aspect of the matter, then the Appellate Tribunal can dispose of the appeal having regard to the provisions of the RDDBFI Act and the rules made thereunder. As per the Karnataka High Court, reliance placed on the RDDBFI Act and its rules would be insofar as it can be made applicable to the provisions of the SARFAES1 Act if they are not inconsistent with the later Act. The Court has further held that--

"...on reading of Sub-section (2) of Section 18, it becomes clear that, while dealing with an appeal filed under the SARFAESI Act, the appellate Tribunal has to keep in mind the provisions of the Debts Recovery Act and the rules made thereunder."

The Court, thereafter, has made reference to the provisions of Sub-section (3) of Section (20) and by comparing it with Section 18(2) of the SARFAESI Act has held as under:

"11....Therefore, on a conjoint reading of Sub-section (2) of Section 18 of SARFAESI Act and Sub-section (3) of Section 20 of Debts Recovery Act, it becomes clear that as far as the prescription of the period of limitation for filing of the appeal, Sub-section (1) of Section 18 of the SARFAESI Act would have to be read inasmuch as an express period of limitation is prescribed i.e., thirty days, for preferring an appeal. But, the proviso to Sub-section (3) of Section 20 of the Debts Recovery Act, which provides for condonation of delay by the appellate Tribunal on being satisfied that there is sufficient cause, would have to be read into Section 18 of the SARFAESI Act having regard to Sub-section (2) of Section 18 of SARFAESI Act."

The Court has even observed that the provisions of the Limitation Act being applicable to the proceedings before the appellate Tribunal in terms of Section 24 of the RDDBFI Act can also be read into the SARFAESI Act. As per the Court, the provisions of the RDDBFI Act having been incorporated under Section 18 of the SARFAESI Act, there would be no bar to condone the delay in filing the appeal before the appellate Tribunal. The Court has relied upon the judgment of the Andhra Pradesh High Court in Sajida Begam's case (supra) and did not accept the view of the Madhya Pradesh High Court in Seth Banshidhar Kedia's case (supra) and that of Madras High Court in Dr. Zubida Begum's case (supra). The reason given to take a different view than that of the Madhya Pradesh High Court is that the said High Court, while comparing the provisions of two statute has noticed Sub-section (7) of Section 17 of the SARFAESI Act and has held that as far as may be the Tribunal will dispose of the application in accordance with the provisions of RDDBFI Act and the rules made thereunder. The Court has then observed that the Madhya Pradesh High Court lost sight of the Sub-section (2) of section 18 of the SARFAESI Act which also states that, save as otherwise provided in the Act, the appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the RDDBFI Act and the rules made thereunder. It is observed that without noticing Sub-section (2) of section 18 of the SARFAESI Act, the Court has stated that the Legislature has consciously intended not to confer power of condonation of delay on the Appellate Tribunal under Section 18 of the SARFAESI Act. As per the Court, the Madhya Pradesh has not appreciated or understood the provisions of Section 18(2) of the SARFAESI Act and that if they had done so, the decision of the Court would have been otherwise.

While referring to the Madras High Court in the case of Dr. Zubida Begum (supra), the Karnataka High Court has noticed that it had only agreed with the view expressed by the Division Bench of the Madhya Pradesh in the case of Seth Banshidhar Kedia. The Court has then made reference to the view expressed by the Madras High Court in regard to the provisions of Sub-section (2) of Section 18, which part is already reproduced above by me. After referring to these observations, the Court has considered the view expressed by the Madras High Court to the effect that the appeal is not entertained unless delay in filing the appeal is condoned. The Court has noticed that once the appeal is entertained, then even as per the Madras High Court judgment, the same would have to be disposed of under the provisions of Section 18(2) which also refers to the provisions of the RDDBF1 Act. While expressing its disagreement with this line of reasoning the Court has held that entertaining of an appeal would commence from the time the appeal is listed before the Tribunal for its judicial consideration either on preliminary issue or on merit. The appeal would be listed before a Tribunal if the conditions for filing an appeal are complied with. It is further observed that if memorandum filed by an aggrieved person is in order, then, the appeal is listed before the Tribunal for judicial consideration with or without interlocutory applications. One of the interlocutory applications that may be filed along with an appeal is an application for condonation of delay in filing the appeal. Such an application would have to receive a judicial consideration by the appellate Tribunal. While considering such an application, the appellate Tribunal would, in substance, be considering as to whether the appeal should be entertained or not. In other words, if the application for condonation of delay is dismissed, automatically, the appeal would also stand dismissed. On the other hand, if the application for condonation of delay is allowed, the appeal would then be considered on merits. Therefore, "entertaining of an appeal" by the Tribunal would mean when the appeal is listed before the Tribunal along with or without an interlocutory application such as an application for condonation of delay i.e., for its judicial consideration. In M/s. Lakshminaratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, Kanpur Range, Kanpur, AIR 1968 SC 488, the Hon'ble Supreme Court has stated that the word "entertain" means the first occasion at which the Court takes up the matter for consideration. Without taking note of this aspect, the Madras High Court has held that Sub-section (2) of Section 18 would not be applicable at the stage of considering an application for condonation of delay in filing the appeal.

The Madras High Court has also viewed that the Appellate Tribunal is not a Court and, therefore, there cannot be an automatic extension of the provisions of the Limitation Act to an appeal under Section 18 of he Act, as there is no express provision in the SARFAESI Act indicating the applicability of the provisions of the Limitation Act. Therefore, the Madras High Court has held that the appellate Tribunal has no power to condone the delay in preferring a statutory appeal under Section 18 of the SARFAESI Act. The Karnataka High Court has expressed its disagreement with the aforesaid reasoning as well. The Karnataka High Court has held that in both judgments Sub-section (2) of Section 18 has not been considered in its proper perspective. The Court has than relied upon the judgment of the Andhra Pradesh High Court in Sajida Begum's case (supra) and so also the Punjab and Haryana High Court in the case Surinder Mahajan and Bombay High Court in the case of Kanji Manji Kothari (supra) to hold that the delay can be condoned by the appellate Tribunal while dealing with appeals filed under Section 18 of the SARFAESI Act.

Two issues arose for consideration before the Division Bench of the Bombay High Court in the case of Kanji Manji Kothari's case (supra) one of which would be relevant for the purpose of consideration in this case. The issue which is relevant in the present case is whether and to what extent the Limitation Act, 1963 would be applicable to the application filed under Section 17(1) of the NPA Act (which is referred here as SARFAESI Act). The Court in this case has taken a view that there is no express exclusion of the Limitation Act. It is observed that so far as the borrower's application under Section 17(1) is concerned, a different period of limitation is prescribed as given in the Limitation Act and, hence, on a bare reading of Section 29(2), Section 5 of the Limitation Act would be applicable. It is further observed that so far as the secured creditor is concerned, he can take measures under Section 13(4) within the period prescribed under the Limitation Act though Section 35 gives an overriding effect to the SARFAESI Act and Section 37 of the same Act states that application of other laws is not barred and the SARFAESI Act is in addition to the RDDBFI Act and not in derogation thereof. Referring to Section 17(7) of the SARFAESI Act, it is observed that the DRT has to dispose of the application in accordance with the RDDBFI Act and the rules made thereunder and Section 24 of the RDDBFI Act makes provision that the Limitation Act being applicable to the application before the DRT. Thus, the provisions of Section 5 of the Limitation Act would be applicable to the SARFAESI Act. It is observed that this will also lead to even treatment to the secured creditor as well as the borrower or any aggrieved person.

Like in other cases, detailed reference and discussion has followed in regard to the observations made in Fairgrowth Investments' case (supra) and Hukumdev's case etc. In addition, reference is made to Mangu Ram v. Delhi Municipality, AIR 1976 SC 105, which considered Section 417(3) of the Code of Criminal Procedure, 1989. In this case the Supreme Court has rejected the submission that 60 days' period is mandatory and it excluded the applicability of Section 5 of the Limitation Act The Court has observed that unless the applicability of the Limitation Act is expressly excluded by the provisions of special law, Section 5 of the Limitation would continue to be applicable to it and that mere providing of period of limitation, in howsoever peremptory and imperative language, is not sufficient to displace the applicability of Section 5. Reference is also made to Union of India v. Ms. Popular Construction Co., VII (2001) SLT 104 : IV (2001) CLT 65 (SC) : AIR 2001 SC 4010, where the Supreme Court has considered the issue whether the time limit prescribed under Section 34 of the Arbitration and Conciliation Act, 1996 for filing application to challenge the award was absolute or not. The Supreme Court in this case has made reference to Hukumdev's case (supra) and Mangu Ram's case (supra) and after considering the history of the Arbitration Act, has held that its main objective was to minimize the supervisory role of Courts in the arbitral process. While considering the provisions of Section 34 of the Arbitration Act, the Court has laid stress on to the proviso to Section 34 which states that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the period of three months, it may entertain the application within a further period of thirty days, but not thereafter (Emphasis mine). These words would need emphasis as the Supreme Court has observed that 'but not thereafter' would amount to an express exclusion within the meaning of Section 29(3) of the Limitation Act and, therefore, bar the application of Section 5.

It may be worth a notice that the Hon'ble Supreme Court has observed that prohibitory provision has to be construed strictly. It is also observed that the Arbitration Act is intended to expedite the commercial issue as can be seen from the statement of objects and reasons, but it nowhere states that Section 14 of the Limitation Act would be excluded. The Apex Court has observed that whenever two enactments are overlapping each other, on same area then Courts should be cautious in interpreting those provisions. The extent of exclusion, however, is really a question of construction of each statute. As per the Supreme Court since there is no prohibition provided under Section 34 of the Arbitration Act, there is no reason why Section 14 of the Limitation Act which will advance the cause of justice should be held inapplicable to the arbitration proceedings. The Division Bench of Bombay High Court in Kanji Manji Kothari's case (supra) has also noticed the observation in Nagindra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 where it is observed that the fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship but construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, Their Lordships think, the only safe guide. After having discussed all these provisions, the Court has noted the proposition that would emerge and these are as under:-

"(a) There is no inherent power in the Court to condone the delay.

(b) The prescribed period for taking steps in legal proceedings is intended to be abided by subject to any power expressly conferred on the Court to condone delay.

(c) The fixation of period of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is the only safeguide.

(d) The provisions of Sections 4 to 29 of the Limitation Act, 1963 will apply when--

(i) there is a special law or local law which prescribes a different period of limitation for any suit, appeal or application; and

(ii) the special or local law does not expressly exclude those sections (Union of India v. M/s. Popular Construction Company (supra)

(e) A mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5.

(f) If on an examination of the relevant provisions of the special law, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act.

(g) Where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, to would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions or the nature of the subject matter and the scheme of the special law exclude their operation.

(h) If the Special Act and the Limitation Act can be read harmoniously without doing violence to the words used therein then there is no prohibition in doing so [State of Goa v. M/s. Western Builders, (supra)]."

Based on the ratio of law as noted above, the Court has gone to examine the provisions of Section 17(1) the SARFAESI Act, which provides that the application may be disposed of in accordance with the provisions of the RDDBFI Act and the rules made thereunder. Reference is made to Section 22 of the RDDBFI Act which states that the Tribunal and the appellate Tribunal shall not be bound by the procedure laid down by the Civil Procedure Code but shall be guided by the principles of natural justice and shall have power to regulate its own procedure. As per Section 24 of the RDDBFI Act, the provisions of the Limitation Act shall apply to the application made to a Tribunal. The nature of proceedings under the SARFAESI Act not being in derogation of the RDDBFI Act as held in M/s. Transcore v. Union of India & Anr., VIII (2006) SLT 617 : I (2007) BC 33 (SC) : 135 (2006) DLT (SC) 151 : AIR 2007 SC 712, it is observed that the object is the recovery of debt of by non-adjudicatory process. The Court has accordingly held that examining the relevant provisions of the SARFAESI Act and the observations of the Supreme Court in Transcore's case (supra), the irresistible conclusion is that the Limitation Act is applicable to the SARFAESI Act. As per the Court, there is no express exclusion of the Limitation Act.

The Calcutta High Court has taken a different view in Akshat Commercial's case (supra). The Court has viewed that although in the proceedings under Section 17(1) of the SARFAESI Act the provisions of the Limitation Act apply, yet section 5 of the Limitation Act in particular has no application in view of the fact that the proceeding is original in nature like suit. The Court in this case, while referring to Sub-section (7) of Section 17, has observed that the Tribunal, as far as may be, dispose of the application in accordance with the provisions of the RDDBFI Act and the rules made thereunder. As per the Court, by Section 24 of the RDDBFI Act, the provisions of the Limitation Act shall, as far as may, apply of an application made to a Tribunal. On this basis, the Court has held that the co-joint effect of Section 17(7) of the SARFAESI Act and Section 24 of the RDDBFI Act is that the proceedings under Section 17(1) of the SARFAESI Act, which is entertained by the DRT, the provisions of the Limitation Act shall, as far as may, apply. The Court has, however, held that Section 5 of the Limitation Act would not apply despite this position as the proceedings under Section 17(1) are in the nature of original proceedings and in such a case even though other relevant provisions of the Limitation Act would apply, but the provisions of Section 5 have no application in view of the fact that the said section is not applicable to the proceedings like suit The Court has, accordingly, held that although in a proceeding under Section 17(1) of the SARFAESI Act, the provisions of the Limitation Act applies in general "as far as may be", yet, Section 5 of the Limitation Act in particular, however, has no application in view of the fact that the proceeding is original in nature like suit and Section 5 of the Limitation Act has no application to a suit.

To hold that the proceedings under Section 17(1) of the SARFAESI Act are in the nature of a suit, the Calcutta High Court has made reference to the decision of the Supreme Court in Mardia Chemicals' case (supra) where the Apex Court has held that in fact these proceedings are not appellate proceedings and it seems to be a misnomer. Reference is also made to Transcore's case (supra) in this regard. As is observed by the Hon'ble Supreme Court, it is the initial action which is brought before a forum as prescribed under the Act, raising grievance against the action/measures taken by one of the parties to the contract. It is noticed that the Supreme Court has accordingly observed that it is the stage of initial proceeding like filing a suit in Civil Court and that the proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar created under Section 34 of the SARFAESI Act. As noticed above, the provisions of Section 17 were amended in view of the observation made by the Supreme Court in Mardia Chemicals' case (supra) and instead of the word 'appeal' the word 'application' was introduced. In Transcore's case (supra), the Court has taken a view that the marginal note to Section 17(1) of the SARFAESI Act could not control the text content of Section 17(1). On this basis, the Hon'ble High Court of Calcutta has observed that the proceedings under Section 17 of the SARFAESI Act are not appellate proceedings and are in the nature of original proceedings. The Court has then gone on to discuss in detail the words 'application' and 'suit' which are defined in Section 2(b) and 2(1) of the Limitation Act.

The judgment in the case of Kanji Manji Kothari's case (supra) was distinguished by Calcutta High Court on the ground that the Division Bench of the Bombay High Court in this case did not consider the decision of the Supreme Court in the case of Gopal Sardar (supra). Therefore, the said decision was not taken as a precedent in the facts of the case before the Calcutta High Court. The judgment in Akshat Commercial's case (supra) was rendered by the Division Bench of the Calcutta High Court over-tuning the judgment of Single Judge of the same High Court. The Single Judge has placed reliance on two Supreme Court decisions in the case of Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1977 SC 282, I and Asia Resorts Limited v. Usha Breco Ltd., VII (2001) SLT 592 : IV (2001) CLT 197 (SC) : (2001) 8 SCC 710 : AIR 2002 SC 55. Both these case were distinguished and the view, which is already noticed above, was taken. The exact finding recorded by the Calcutta High Court reads as under:

"38. Once we hold that the proceedings under Section 17(1) of the Act is like that of a suit and that the Limitation Act applies as far as may be applicable by virtue of Sections 17(7) and 24 of the two Special Laws, Section 29(2) of the Limitation Act has no application and, thus, the various decisions cited on behalf of the respondent by showing the applicability of Section 29(2) of the Limitation Act cannot have any application to the original proceedings like a suit before a Tribunal. The other provisions of the Limitation Act, for instance, Sections 4, 6, 7, 9, 10, 11, 12, 14, 15, 16, 17, 18. etc. should, however, apply in appropriate cases."

As noticed in earlier part of this judgment, the Andhra Pradesh High Court in the case of Sajida Begum (supra) has not accepted the view expressed in Seth Banshidhar Kedia's case (supra). The Court in this case has considered various judgments and has formed a view that the interpretation of Section 29 of the Limitation Act is considered in several decisions and it would be apt to notice a decision of the Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra) where the issue which fell for consideration is whether the appellate authority constituted under Section 18 of the Kerala Rent Control Act has power to condone the delay and whether Sections 4 to 24 of the Limitation Act are applicable thereto, which includes Section 5 of the Limitation Act. The observation recorded by the Hon'ble Supreme Court in Paras 10, 11, 13, 15 and 22 are reproduced in its judgment by the Andhra Pradesh High Court. The result of the discussion having been recorded in Para 22 maybe noticed here, which is as under:

"22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a Court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963 such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the concerned applicant for the delay in filing such appeals. The decision rendered by the High Court in the present case as well as by the appellate authority taking contrary view are quashed and set aside. The proceedings are remanded to the Court of the appellate authority, that is. District Judge, Thalassery. Rent Control Appeal No. 9/94 filed before the said authority by the appellant is restored to its file with a direction that the appellate authority shall consider I.A. 56/94 filed by the applicant for condonation of delay on its own merits and then proceed further in accordance with law. Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs."

Having made reference to the detailed observation in the judgment, the Court has observed that it is not in dispute that there is no express exclusion of the Limitation Act under the SARFAESI Act. It is also observed that under the RDDBFI Act the DRTs and DRATs function and entertain original and appellate proceedings under the SARFAESI Act. clearly exercise powers of a civil Court under CPC and in addition, the Limitation Act is expressly made applicable under Section 24 of the RDDBFI Act. The Court, accordingly, has viewed that Section 29(2) of the Limitation Act and thereby Sections 4 to 24 (inclusive) of the Limitation Act would be applicable to proceedings under Sections 17 and 18 of the SARFAESI Act before the DRT as well as DRAT. The Court has specifically observed that the decision in the case of Seth Banshidhar Kedia (supra) did not lay down a correct law and was found to be contrary to the ratio of decision of the Supreme Court in the case of Mukri Gopalan (supra).

The view expressed by the Calcutta High Court in regard to the nature of proceedings did not find favour with the Gujarat High Court in the case of Corporation Bank (supra). DRT at Ahmedabad had condoned delay by allowing the application filed under the SARFAESI Act. The S.A. filed under Section 17 was with a delay and an application for condonation of delay was filed. The Tribunal had condoned the delay, which was challenged before the High Court. The only contention raised was that Section 5 of the Limitation Act is not applicable to the proceedings of an application under Section 17 of the SARFAESI Act and there is no power available with the Tribunal for condoning the delay in such application. The Counsel raising objection before the Gujarat High Court had mainly relied upon the decision of the Calcutta High Court in the case of Akshat Commercial (supra). A Single Bench of the Gujarat High Court had already taken a view in Union Bank of India v. Chairperson, Debts Recovery Appellate Tribunal & Ors. (supra) that the provisions of the Limitation Act are applicable to the proceedings under Section 17 of the SARFAESI Act. The Counsel pleaded for having a fresh look on this issue in terms of the judgment passed by the Calcutta High Court. The Division Bench, therefore, has considered various aspects in terms of different provisions of the SARFAESI Act and the RDDBFI Act. It is observed that on the basis of the scheme of the Act the application under Section 17(1) of the Act is to be considered by the Tribunal under the RDDBFI Act. As per Section 36 of the SARFAESI Act, Limitation Act is applicable for enforcement of security interest. For disposal of application, the provisions of the RDDBFI Act are to be applied and in view of Section 24 of the said Act, the provisions of the Limitation Act would apply, as far-as may be. Section 36 of the Act speaks of the application of the Limitation Act and the rules made thereunder in addition to any other law for the time being in force unless the provisions of this Act are inconsistent with any other provisions of any other law for the time being in force and Section 35 talks of overriding effect. The Court has, accordingly, observed that the procedure so provided for disposal of the application is by the Act which is a special law. It is then noticed that no provision has been made by the Parliament under the Act for applicability of Section 5 of the Limitation Act to the proceedings under Section 17 of the SARFAESI Act. The Court then has considered that if by virtue of any provisions of the Act, Section 5 of the Limitation Act could have applicability to the special law in question or not which may also include proceedings under Section 17 of the SARFAESI Act. The Court in this case has made extensive reference to the decision in the case of Kanji Manji Kothari (supra) as well as to the case of Punnu Swamy (supra). As is observed in the Punnu Swamy's case by the Madras High Court, Section 5 would apply even to some types of application though it may not apply to suits. The High Court in this case has held that the proceedings before the DRT under Section 17 of the SARFAESI Act, though original in nature, yet should be treated as application and not strictly like suit. The provisions of Section 5 of the Limitation Act. therefore, would apply to application filed under Section 17 of the SARFAESI Act. The Court, however, has also observed that the same logic cannot be extended to application filed under Section 19 of the RDDBFI Act, since Section 24 of the RDDBFI Act makes the provisions of the Limitation Act, 1963 applicable to an application under the Act, meaning thereby that an application under Section 19 of the RDDBFI Act is to be treated as a suit. The Court in this case has further held that Section 17(1) prescribes a period of limitation of just 45 days for challenging any measure taken by secured creditor. As per the Court, the remedy under Section 17(1) is virtually a remedy in respect of a right of redemption. Therefore, to hold that Section 5 of the Limitation Act would not apply to an application under Section 17(1) of the SARFAESI Act would virtually defeat a valuable right of redemption of a mortgagor. This right of redemption normally gets extinguished after the sale of the property. Therefore, the apprehension expressed by the Counsel for the Bank that the parties may come up with applications after a huge delay and defeat the object of the Act for speedy recovery of dues, was termed as not to be well-founded for the simple reason that after losing possession of the property under Section 13(4), a debtor cannot afford to wait for long. If he waits for long, the property may get sold and his rights of redemption may get extinguished. The Court, accordingly, has held that application of Section 5 of the Limitation Act to the proceedings under Section 17(1) of the SARFAESI Act would neither defeat the rights of the secured creditor nor cause irreparable hardship to the secured creditor.

Mention here may be made to a legal position that the right to property though not a fundamental right, still is a constitutional right. It is also a human right and in the absence of any provision either expressly or by necessary implication, depriving a person therefrom, the Court shall not construe a provision leaning in favour of such deprivation (see State Financial Corporation v. N. Narasimahaiah, IV (2008) SLT 41 : II (2008) CLT 170 (SC) : (2008) 5 SCC 176). On the basis of law, it is observed that right conferred upon the debtor or the surety under Section 17 is a right to save one's own property and to hold that the fate of a debtor or surety will be sealed in a period of 45 days from the date of initiation of the measures under Section 13(4) and that he would be left remediless after the said period on account of non-availability of Section 5 of the Limitation Act, would defeat the right to property. It is observed that the Court accordingly has to choose an interpretation which would lean in favour of the right to property.

Division Bench of the Gujarat High Court has also considered the submission made before it that the Tribunal cannot be held to be a Court and so the provisions of Section 5 of the Limitation Act would not apply. This submission was advanced before the Court on the basis of the decision in the case of Nahar Industrial Enterprise Ltd. v. Hong Kong and Shangha Banking Corporation, III (2009) BC 539 (SC) : V (2009) SLT 737 : (2009) 8 SCC 646. The Court has observed that even if it is held that the Tribunal is not a Court, then also it cannot be accepted that Section 5 of the Limitation could not apply to the proceedings under Section 17 of the SARFAESI Act. Hon'ble Gujarat High Court then wont on to examine the view of Calcutta High Court expressed in Akshat Commercial's case (supra) in this regard. The plea was that the decision of the Calcutta High Court was based on the observation that the proceedings under Section 17(1) of the SARFAESI Act are original proceedings not before the Court but are before the Tribunal and that the outer limit has been provided under Section 17 of the Act for disposal of the matter. The Court then observed that Section 29 of the Limitation Act makes no distinction between any suit or application provided by special or local law. The Court has also noticed that the fact that despite the view expressed by the Supreme Court in Mardia Chemicals' and Transcore's cases (supra) Section 17 of the SARFAESI Act, which is a special law, has used the word "appeal". It cannot be said that the proceedings under Section 17 of the Act can be termed as 'suit' for the purpose of applicability of the Limitation Act if one goes by the plain and literal meaning of the language used by the Parliament in the Act As per the Court, even if it is considered that literal meaning cannot be accepted and in view of the above referred decisions of the Apex Court in the cases of Mardia Chemicals (supra) and Transcore (supra), the proceedings under Section 17 jurisdiction of the Tribunal, but such outer limit provided by the statute is to be normally termed as directory. As is observed, rightly in my view, that merely because an application is not decided by the Tribunal within the outer limit, the Tribunal would not become functus officio after expiry of the period. Such an interpretation would frustrate very purpose of providing separate inbuilt mechanism and may also create further complication which may be irreversible. The Court has thus held that it will not be possible to take a view that Parliament by providing outer limit under Section 17(5) of the SARFAESI Act has provided for non-application of the Limitation Act for the purpose of time limit provided under Section 17(1) of the Act.

A detailed mention to the view expressed by different High Court in various judgments has been noticed above. On one side is the view of Madhya Pradesh High Court, Delhi High Court and Madras High Court to the effect that the appellate Tribunal has no power to condone the delay in appeal filed under Section 18 of the SARFAESI Act. The Madhya Pradesh High Court, however, in Seth Banshidhar Kedia's case (supra) has held that the DRT would have power to condone the delay while considering the application under Section 17 of the SARFAESI Act. The Madras High Court and Delhi High Court in the cases of Dr. Zubida Begum (supra) and Poonam Garg (supra) respectively have considered only the aspect of condonation of delay in case of appeal filed under Section 18 of the SARFAESI Act. Against this set of judgments, the Bombay High Court, Andhra Pradesh High Court, Karnataka High Court and Punjab and Haryana High Court and Gujarat High Court have expressed themselves differently. Law emerging from all these cases and also the reasoning adopted to record the conclusion by the respective Courts have been noticed in detail above. Bombay High Court in Kanji Manji Kothari's case (supra) has viewed that the Limitation Act applies to application under Section 17 of the SARFAESI Act as that was the only issue raised before the Court, Andhra Pradesh High Court in the case of Sajida Begum's case (supra) has held that delay in filing the appeal under Section 18 of the SARFAESI Act can be condoned. So is the view of the Karnataka High Court in Sri C. Laxman Gowda's case (supra). Punjab and Haryana High Court in the case of Surinder Mahajan (supra) has held that delay in filing the application under Section 17 as well in filing of the appeal under Section 18 can be condoned. The Calcutta High Court in the case of Akshat Commercial's case has taken somewhat different view to hold that the Limitation Act does not apply for condoning the delay in the application filed under Section 17 of the SARFAESI Act, but other provisions of the Limitation Act would apply. Gujarat High Court in the case of Corporation Bank (supra) has held that the provisions of the Limitation Act would apply and after detailed analysis has distinguished the judgment rendered by the Calcutta High Court. As already noticed, the decision of the Hon'ble High Court Delhi is passed without considering the view expressed by the Bombay High Court, Punjab and Haryana High Court, Karnataka High Court, Andhra Pradesh High Court as well as Gujarat High Court since these views though expressed prior in time but were not placed before the Court while deciding the case of Poonam Garg (supra). It is, therefore, possible to take a view that the Delhi High Court in this case was not property assisted. Madhya Pradesh High Court in the case of Seth Banshidhar Kedia's case (supra) apparently failed to consider the provisions of Section 18(2) of the SARFAESI Act and this aspect has been considered subsequently by the Karnataka High Court as well as by Andhra Pradesh High Court. Madras High Court in Dr. Zubida Begum's case (supra) did consider the provisions of Section 18(2) of the SARFAESI Act, but chose to adopt a different line to ignore Section 18(2) of the SARFAESI Act by observing that the procedure to decide the appeal would be applicable once the appeal is entertained. The Court otherwise has held that the procedure prescribed to decide appeal under the RDDBFI Act will apply while deciding appeal filed under the SARFAESI Act. Karnataka High Court did not approve this line of reasoning for the reasons which have already been noted. I would respectfully find the view of the Karnataka High Court to be logical and valid and cannot go with the view expressed by the Madras High Court that procedure provided to decide appeal will apply only when appeal is entertained. There is no indication in the statute that the legislature had entertained any such distinction while enacting Section 18(2) of the SARFAESI Act. I may respectfully, and with all humility at my command, observe that the view expressed by Madhya Pradesh High Court in Seth Banshidhar Kedia's case (supra) and Madras High Court in the case of Dr. Zubida Begum (supra) and of Delhi High Court in the case of Poonam Garg (supra) may not be reflecting the appropriate position as would emerge from the provisions of the statute. The Calcutta High Court though has held that the provisions of the Limitation Act would apply, but has excluded the application of Section 5 on the ground that the proceedings under Section 17 of the SARFAESI Act are in the nature of a suit or is a suit The Madras High Court in the case of Punnu Swamy (supra) has taken a different view to say that though proceedings before the DRT under Section 17 of the SARFAESI Act are original in nature, yet, this should be treated as an application and not strictly like a suit. The Court has drawn distinction in the application filed under Section 19 of the RDDBFI Act to which, by virtue of Section 24, the provisions of the Limitation would apply and the one filed under Section 17 of the SARFAESI Act. The Court has held that application under Section 19 of the RDDBFI Act is to be treated as suit and not the one under Section 17 of the SARFAESI Act.

If one was to examine the nature of proceedings under Section 17 of the SARFAESI Act, it will be noticeable that the cause for moving an application under the said section depends upon the measures initiated under Section 13(4) of the SARFAESI Act. The initiation of proceedings under Section 17 of the SARFAESI Act, therefore, is not to claim any right or title so as to term it as a suit. Application is basically an objection to the measure initiated under Section 13(4) of the Act and this is only reactive action to a measure initiated by the secured creditor. No right is claimed but challenge is to the measure initiated or the procedure followed in initiating such measures Initially, this was referred to as an appeal. The proceeding under Section 18 of the SARFAESI Act, as can be seen from the un-amended section, was construed as second appeal. That is why initial provision was made for hearing of the so-called appeal filed under Section 17 of the SARFAESI Act was with condition to deposit 75% of the claimed amount. This section was amended due to strong observation made by the Hon'ble Supreme Court in Mardia Chemicals' case (supra). The heading of this section still uses the word 'Appeal' whereas the word 'appeal' in the section itself has been substituted by the word 'application'. No doubt, the Hon'ble Supreme Court in the cases of Mardia Chemicals (supra) and Transcore (supra) has referred to these proceedings as original proceedings in the nature of a suit, but it apparently was in the context of explaining and to distinguish it from other proceedings as such. The observation expressed in the case of Punnu Swamy's case (supra), the remedy provided under Section 17(1) is virtually a remedy in respect of redemption of property If it is so, then also it can be taken as a remedy provided to a borrower to save his property. The Court is justified in observing that if Section 5 of the Limitation Act is held not applicable, it would virtually defeat the valuable right of the borrower/mortgagor, may be of redemption, or may be to save his property.

Apart from that, one cannot really ignore the provisions of Section 17(7) of the SARFAESI Act. A large number of judicial precedents noted above have taken a view that by virtue of this provision the procedural provision contained in the RDDBFI Act would stand merged with the provisions of the SARFAESI Act so far as deciding the application filed under the Act is concerned. The limitation is a procedural law. Section 24 of the RDDBFI Act would make the provisions of the Limitation Act applicable to the SARFAESI Act as well. This is the view expressed by some of the High Courts, which have been noted above. Similarly, there would not be much difficulty to import the provisions of the RDDBFI Act while disposing of the appeal under Section 18 of the SARFAESI Act by virtue of Sub-section (2) of said Section 18. In this context, the submissions were made before me that there may not be a need to even look into the aspect of applicability of the provisions of the Limitation Act. It may be worth-noticing that no procedure has been prescribed for disposing the application under Section 17 of the SARFAESI Act or appeal under Section 18 of the SARFAESI Act. To regulate the procedure for deciding the application as well as the appeal under the SARFAESI Act, the procedural provisions of the RDDBFI Act have been made applicable by virtue of Sub-section (7) of Section 17 and Sub-section (2) of Section 18 of the SARFAESI Act. Except for Calcutta High Court, which has taken a view that Section 5 of the Limitation Act cannot be applied to the application filed under Section 17 of the SARFAESI Act on the ground that these proceedings are viewed as original proceedings like a suit, no other Court has held that procedure prescribed under the RDDBFI Act is not to regulate the proceedings of the application filed under Section 17 of the SARFAESI Act. Even the Calcutta High Court has held that other provisions of the Limitation Act would apply, which would mean that the delay could be condoned by the appellate Tribunal. If the aim was not to apply the procedure prescribed under the RDDBFI Act for dealing with appeals filed under Section 18 of the SARFAESI Act then what for Sub-section (2) of Section 18 of the SARFAESI was brought on the statute and for what purpose then it would be relevant. The only purpose for which Section 18(2) of the SARFAESI Act is legislated is to take support or to adopt the procedure prescribed under the RDDBFI Act for deciding appeal filed under Section 18 of the SARFAESI Act. The procedure to decide the appeal is given in Section 20 of the RDDBFI Act. Sub-section (1) talks of right to file appeal. Then Sub-section (2) provides that no appeal shall lie when the order made by the Tribunal is with consent. Sub-section (3) provides for a period of limitation of 45 days for filing an appeal. This sub-section has a proviso that the Tribunal may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period. Sub-section (4) then provides that Appellate Tribunal may, after giving parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. Appellate Tribunal is then required to send a copy of every order made by it to the parties. Sub-section (6) of Section 20 talks of expeditious disposal of the appeal by providing a period of 6 months for its disposal from the date of its receipt. Perhaps nobody can submit that these provisions contained in Sub-sections (1) to (6) of Section 20 would not apply so far as the procedure to dispose of an appeal under Section 18(2) of the SARFAESI Act is concerned. Except for the variation that the period of limitation of 30 days is given in Section 18 of the SARFAESI Act, rest of the procedure prescribed in Section 20, perhaps, cannot be wished away.

The view expressed in some of the judgments and the submission made on these lines that the provisions of the Limitation Act as per Section 20 of the RDDBFI Act has been made applicable to the Tribunal and thus Appellate Tribunal would stand excluded even if accepted may not make any difference. This has also to be seen in the context of Section 19 of the RDDBFI Act. No period has been provided for filing application under Section 19 before the DRT Section 20 itself carry a provision giving an enabling power to the appellate Tribunal to entertain an appeal after expiry of the period of 45 days provided as period of limitation to file an appeal. The limitation having been prescribed under Section 20 and so also the scheme and power of the Tribunal to entertain the appeal even after the expiry of that period, the applicability of the Limitation Act was required to be laid down only in respect of the application being filed under Section 19 of the said Act. Since the same procedure has been made applicable to the SARFAESI Act by virtue of Sub-section (7) of Section 17, the provisions of the Limitation Act which would apply to Section 19 would get attracted so far as the application filed under Section 17 is concerned 45 days is the period which is given as an initial period during which the aggrieved person may file this application and if it is filed with delay, then, obviously, Sub-section (7) of Section 17 would make the provisions of the RDDBFI Act applicable I have already considered the aspect whether this application is suit or not. It may be an original proceedings, but still it may not be possible to term it as a suit. It can be taken as akin to a suit, but not a suit as such. This view may also appear to be in line with the observation made by the Hon'ble Supreme Court in Mardia Chemicals' and Transcore's cases (supra).

So far as the procedure to decide an appeal under Section 18 of the SARFAESI Act is concerned, the same read with Section 20, in my view, would make a complete code. The power with the Tribunal to entertain the appeal under the RDDBFI Act even though filed not within 30 days, is available in view of Sub-section (3) of Section 20 of the RDDBFI Act. It may not be possible to take a view that Section 18 of the SARFAESI Act in any manner has either expressly or impliedly excluded the applicability of the provisions of the Limitation Act. One could have construed so in the absence of Sub-section (2) of Section 18. As already noticed, any other view may make this provision look redundant and useless. Legislature would not introduce a provision without having any purpose in mind and purpose of this provision is to apply procedure given under the RDDBFI Act to the proceedings under the SARFAESI Act. It is not a matter of dispute or discussion that Section 18 of the SARFAESI Act or any other section under the SARFAESI Act has expressly excluded the applicability of the provisions of the Limitation Act. Rather, indication may appear to be to the contrary. Section 36 of the SARFAESI Act would give an indication that Legislature has made the provisions of the Limitation Act applicable in case of secured creditor. Thus, in an express manner the provisions of the Limitation Act has been made applicable for a secured creditor to make a claim in respect of the financial asset. The judgments which have expressed the view that there is no power with the appellate Tribunal to condone the delay has mainly held on the premise that the provisions of the Limitation Act have been impliedly excluded. If there was any such intention to exclude this provision, then there was no need to provide a provision in the form of Section 37 to say that the application of other laws would not be barred. The provisions of this Act have been given overriding effect. If we read the provisions of Section 18(2) of the SARFAESI Act, the only reasonable and logical conclusion one can draw is that for deciding the appeal, procedure has to be borrowed from the provisions of the RDDBFI Act. There has been no serious difference of opinion on this aspect between various High Courts. That being so, it cannot be taken that there is any implied exclusion of the Limitation Act. In fact, by virtue of Section 17(7) of the SARFAESI Act, the provisions of the Limitation Act would apply to disposal of the applications. There may not have been a need to apply the provisions of the Limitation Act so far as the appeals are concerned as power to entertain appeal after expiry of period provided under Section 20 of the RDDBFI Act for filing appeals has itself been provided in the said section. At least those provisions may have to be read into the powers of the Tribunal to decide the appeal under Section 18 by virtue of Section 18(2) of the SARFAESI Act.

The word 'Tribunal' has not been defined under the SARFAESI Act whereas Appellate Tribunal has been defined in Section 2(1)(a) of the Act. The 'Appellate Tribunal' has been assigned the same meaning as given in Section 2(a) of the RDDBFI Act. The word Tribunal' has been defined under Section 2(o) of the RDDBFI Act The word 'Debts Recovery Tribunal' has been defined under Section 2(1)(i) of the SARFAESI Act. 'Appellate Tribunal' has been defined to mean Debts Recovery Appellate Tribunal established under Sub-section (1) of Section 8 of the RDDFBI Act. 'Debts Recovery Tribunal' has been defined as the Tribunal established under Sub-section (1) of Section 3 of the RDDBFI Act. The 'Tribunal' thus has the same meaning in both the enactments. Section 24 of the RDDBFI Act, therefore, may be made applicable to the applications made to the Tribunals but that in my view may not make much difference once Section 20 of the RDDBFI Act itself makes an enabling provision for the Appellate Tribunal to entertain appeal filed after expiry of period laid down for filing appeal. Once the Legislature has made a provision for applying the same procedure for deciding the appeal under the SARFAESI Act, then there was no need to specifically make a provision for entertaining an appeal on the expiry of the period as laid down for filing of the appeal under Section 18 of the SARFAESI Act.

I am not impressed by the submission made by Mr. Bhandari, which he has advanced on the basis of term 'application' used in Section 24 of the RDDBFI Act. The Counsel submits that the word 'application' is defined in Rule 2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993. The Counsel would urge that this does not include application filed under Section 17(1) or appeal filed under Section 18(1) of the SARFAESI Act. As per Rule 2(c), application means an application filed under Section 19 or under Section 31A and includes an appeal under Section 30(1) of the RDDBF Act. While advancing his submission on these lines, perhaps, it has escaped from his notice that the word 'application' is defined in Section 2(b) of the RDDBFI Act. As per this definition, application means an application made to a Tribunal under Section 19. Once application has been defined in the Act itself, it would not be possible to supplant this definition by providing any other definition in the Debts Recovery Tribunal (Procedure) Rules, 1993. Whether this will amount to supplanting the word 'application' or supplementing need not be gone into in the present proceedings as that is not the issue raised, but relying on the definition given in the rules and ignoring the one contained in the Act may not be permissible, 'Application' would mean an application made under Section 19 of the RDDBFI Act. I have also observed that the provisions of the Limitation Act has been made applicable to an application made to a Tribunal. The word 'Tribunal' carries the same meaning under both the enactments. The Limitation Act has been made applicable to the application under Section 19 of the RDDBFI Act. The word 'application' cannot be given a different meaning while considering this word used in Section 19 of the RDDBFI and in Section 17(1) of the SARFAESI Act on the basis of definition in the Rules as the Act has to prevail over the rules. It will not be possible, therefore, to urge that the word 'application' would not include an application under Section 17(1) of the SARFAESI Act. If that is the position, it may not be possible to urge that the provisions of the Limitation Act would not apply to application under Section 17 by virtue of Sub-section (7) of the said section. The word 'application' has not been defined under the SARFAESI Act. It is well-settled principle that a word not used in a technical sense must receive popular and ordinary meaning. Long time ago, the Privy Counsel has, too, observed that a technical word must be construed in the light of meaning given in cognate or contemporary statute (see Kalyandappa v. Chanbasappa, AIR 1924 PC 137). The original word used in Section 17(1) may be 'appeal', but the amended section now uses the word 'application'. In Mardia Chemical's case (supra), the Court has clearly observed that the proceedings under Section 17 of the SARFAESI Act in fact are not appellate proceedings. That being the position, the submission advanced by the learned Counsel cannot be accepted. With utmost humility, I would humbly observe that the view expressed by the Bombay High Court, Punjab and Haryana High Court, Andhra Pradesh High Court, Gujarat High Court, Karnataka High Court in the cases of Kanji Manji Kedia, Surinder Mahajan, Sajida Begum, Corporation Bank and Sri C. Laxman Gowda (supra) respectively would sound logical and more appropriate than the contrary view expressed by Madhya Pradesh High Court, Delhi High Court and Madras High Court in the cases of Seth Banshidhar Kedia, Poonam Garg and Dr. Zubida Begum (supra) respectively. I am, therefore, of the considered view that Appellate Tribunal under Section 18(2) and the DRT while dealing with application under Section 17 of the SARFAESI Act will have power to condone the delay which, of course, can be so condoned on the basis of facts and circumstances of each case.