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Judgment
This order shall dispose of the above Regular Appeal filed under Section 17 of the SARFAESI Act (“SARFAESI Act”), by the Appellant, impugning the Judgment dated 17.05.2023 passed by the Learned Presiding Officer, Debts Recovery Tribunal-I, Mumbai (“DRT”), in Transfer Securitization Application (T.S.A) No. 27 of 2023, whereby, inter alia, the Transfer Securitization Application No. 27 of 2023 dismissed.
Brief facts necessary for disposal of the present Regular Appeal are as under:
That the Appellant/borrower/mortgagor filed S.A. No. 503 of 2023 (renumbered as TSA No. 27 of 2023) praying to restrain the Respondent No. 1/ARC to proceed further for the security measure and also quashed and set aside the measure under Section 13(4) of the SARFAESI Act 2002, in the form of auction sale notice dated 28.11.2022 in respect of the properties, viz. Survey No. 62 within the limits of Ranjnoli Village, Kalyan Road, Mumbai Nasik Highway, Taluka Bhiwandi, Dist. Thane (hereinafter referred to as the “secured asset”) and other reliefs. Vide order dated 17.05.2023, the Learned DRT-I, Mumbai dismissed the Transfer Securitization Application No. 27 of 2023.
Aggrieved by the said Judgment and Order dated 17.05.2023 passed by the Learned Presiding Officer, DRT-I, Mumbai, in Securitization Application No. 503 of 2023 (renumbered as TSA No. 27 of 2023), the Appellant has preferred the present Appeal.
Heard.
The Learned Counsel for the Appellant would submit that the impugned order dated 17.05.2023 is incorrect on facts and law, therefore, the same cannot be sustained, consequently, liable to be set aside.
Before the arguments of the Appellant could be heard on merits at length, the Learned Counsel Mr. Rajesh Nagory for the Respondent No.1 and Learned Counsel Ms. Sanjana Ghogare for the Respondent No.2/ Auction Purchaser would raise the point of law that the Appeal is filed beyond the limitation. Hence, the Appeal is liable to be dismissed.
The Learned Counsel for the Respondent No. 1/ARC would further submit that in para IV, the Appellant himself categorically stated that the complete judgment dated 17.05.2023 was not uploaded, therefore, the Appeal is filed against the operative part of the judgment dated 17.05.2023 and this Appeal was filed on 04.10.2023.
He would further submit that as per Section 18 of the SARFAESI Act the period of limitation to file the Appeal against impugned order is thirty days. Hence, the Appeal is liable to be dismissed on this point itself.
Per Contra, the Learned Counsel for the Appellant would submit that in para IV of Memo of Appeal under the head of limitation, it has been specifically stated that the Learned DRT-I, Mumbai had passed the operative part of the impugned judgment dated 17.05.2023 and uploaded only the operative part on the official website of DRT, Mumbai till the date of filing of the Appeal on 04.10.2023.
He would further submit that the complete impugned judgment was finally uploaded on the official website on 09.10.2023. That is to say after the filing of the Appeal. Hence, the present appeal is within limitation.
Considered and perused the records.
At the very inception, it would be pertinent to revisit Section 18 of the SARFAESI Act read 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 alongwith such fee, as may be prescribed to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal: PROVIDED ……………………………………………....”
The Appellant in para IV under the head of limitation of his Memo of Appeal has stated as reproduced hereinunder for the benefit of adjudication of this issue:
“IV – LIMITATION:
The Appellant declares that the appeal is within the limitation prescribed in sub-section (1) of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The Appellant states that, the Learned Presiding Officer, DRT-I, Mumbai has pronounced the operative part of the Impugned Judgment on 17.05.2023 and only uploaded the operative part on the official website of DRT, Mumbai and till the date, full contents of the Impugned Judgment was not uploaded though from time to time, the Advocate for Appellant mentioned the matter before the said Learned Court and therefore for want of full text, the Appellant was not able to prefer the Appeal and now, the Appellant is preferring the present Appeal on the basis of uploaded operative part of the Impugned Judgment. The impugned judgment is finally uploaded on the official website on 0910.2023.”
(Emphasis Supplied)
The bold wordings in the above part of the pleading are handwritten by the Appellant on 19.01.2025.
The Learned Counsel for the Appellant would submit that this was handwritten later on after about fifteen months from the date of filing of the appeal.
The perusal of this part of the pleadings would clearly show that this appeal was filed, as admitted by the Appellant, on 04.10.2023 only against the operative part of the impugned order dated 17.05.2023. It is the submission of Appellant that the main part of the judgment was not uploaded by then. Even if this was the situation then the Appeal only against the operative part of the judgment dated 17.05.2023 should have been filed on or before 16.06.2023. However, as the admitted facts reveals, the Appeal was filed on 04.10.2023, that is to say, approximately after 3 ½ months to the date of expiry of the limitation period. Therefore, there is no force in the argument of the Learned Counsel for the Appellant that the Appeal is within limitation. It is also important to note that even the certified copy of the impugned order was applied by the Appellant (as reflected from noting on certified copy) on 25.07.2023. This means that it was applied forty days from last date for filing the Appeal. The date of the main part of Judgment is also 17.05.2023. The Appeal even against the operative part of judgment the must have been filed within thirty days of period of limitation from the date of pronouncement of the operative part of judgment on 17.05.2023.
It is pertinent to note that, in para IV of the Memo of Appeal on limitation, there is no averment on behalf of the Appellant that the Appellant was not aware of the impugned judgment dated 17.05.2023.
In view of the foregoing discussion and the facts stated hereinabove, this Appellate Tribunal is of the considered view that the present Regular Appeal, having been filed beyond the prescribed period of limitation of thirty days as fixed under Section 18 of the SARFAESI Act, is liable to be dismissed on the ground of limitation.
In the result, the Regular Appeal No. 15/2025 (Mr. Vilas Vasant Gandhe V/s Encore Asset Reconstruction Pvt. Ltd. & Anr.) stands dismissed.
All pending Interlocutory Applications, if any, stand disposed of accordingly.