M/s. SSJV Projects Pvt. Ltd. and Mrs. Harini Shetty vs Canara Bank

D.H. Waghela, C.J.—These writ petitions are preferred from order dated 11.07.2013 of the Debt Recovery Appellate Tribunal, Chennai, in the interim application No. 440/2013 filed by the petitioners for condonation of delay in filing of appeal numbered as AIR (SA) 280/2013. That application was preferred under the provisions of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ''the Act'') and the application, in which impugned order was made, prayed for condoning delay of 35 days in preferring the appeal. The affidavit filed in support of the application for condonation of delay by the petitioners herein averred as under in its material part:

I state that neither I nor the Company has received any communication including Speed Post or Registered Post from the Debt Recovery Tribunal, Bangalore in informing the order dated 31.01.2013. I state that Appellants had time until 08.04.2013 to file the appeal. I submit that 07.04.2013 was a Sunday. The copy of the application which was filed before the Debt Recovery Appellate Tribunal is produced as at Annexure to this affidavit.

I submit that on 28.02.2013, an application was filed to receive the Certified Copy and the same was received on 08.03.2013. I submit that the application along with appeal was signed in Bangalore and sent to an advocate in Chennai to file the appeal. I submit that on 08.04.2013, the appeal came to be filed before the Debt Recovery Appellate Tribunal in Chennai.

Learned counsel appearing for the respondent conceded that no reply was filed for the respondent herein to the averments made on oath, as above. The case of the petitioners before this Court is that since the petitioners were not informed about the order dated 31.01.2013, the period of limitation prescribed u/s 18 of the Act commenced from the date of receipt of the order of DRT; and that date was 08.03.2013. Therefore, there was in fact no delay in filing of the appeal and the appellate tribunal was required to entertain the appeal in accordance with law, according to the submission of learned counsel for the petitioners.

Learned counsel for the respondent argued in reply that the period of limitation would not commence only if and when the party chooses to apply for a certified copy or obtains a certified copy. He further submitted that when the petitioners herein had themselves filed the application for condonation of delay of 35 days, it does not lie in their mouth now to submit that there was in fact no delay to be condoned, in the peculiar facts and circumstances.

The relevant provisions of Section 18 of the Act only stipulates that any person aggrieved, by the order of DRT u/s 17, may prefer an appeal to the appellate tribunal within thirty days from "the date of receipt of the order of Debts Recovery Tribunal". The rules made u/s 38 read with Section 13 of the Act provide for filing of the appeal in the prescribed form as given in Appendix IX and the form at Appendix IX contain a clause in the following format:-

IV. Limitation:

The appellant declares that the appeal is within the limitation prescribed in sub-section (1) Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

It has, however, to be noted that sub-rule (2) of Rule 12 of the Security Interest (Enforcement) Rules, 2002 provides that any appeal to the appellate tribunal u/s 18 of the Act shall be, "as nearly as possible", in the form given in Appendix IX to the said rules.

On the other hand, the provisions of Section 17 of the Act and more particularly, sub-section (7) thereof declare that, 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 and the rules made thereunder. According to the rules made u/s 36 of the Recovery of Debts Due to Banks and Financial Institutions Ordinance, 1993, by virtue of Rule 16, every order passed on an application shall be communicated to the applicant and to the defendant either in person or by registered post, free of cost. In view of such scheme of the statutory provisions, it appears to be obligatory on the part of DRT to communicate its order made in an appeal filed u/s 17 of the Act. That interpretation is in consonance with the provisions of Section 18 of the Act, insofar as it prescribes the limitation of thirty days effective from the date of receipt of order of DRT. In other words, the period of limitation of thirty days would commence only from the date of receipt of the order and not from the date of the order. Applying that interpretation in the facts of the present case, it would appear that, according to the uncontroverted averments made on oath, the petitioners did not receive any communication about the order dated 31.01.2013. However, the petitioners applied for certified copy of the order dated 31.01.2013 on 28.02.2013 and received the certified copy on 08.03.2013. Counting the period of limitation from that date, the appeal filed by the petitioners was in fact within time and an application for condonation of delay appears to have been filed out of misconception of law or abundant caution. In these facts, the petitions are required to be allowed, without entering into the other issue of jurisdiction of the appellate tribunal and application of the provisions of the Limitation Act, 1963 to the appeal u/s 18 of the Act. Accordingly, the petitions are allowed and the impugned order dated 11.07.2013 of the Debt Recovery Appellate Tribunal at Chennai is quashed, with the observation that the appeal of the petitioners may be entertained along with the interim application made therein, in accordance with law by the appellate tribunal, pursuant to this order removing the issue of limitation. The additional prayer made by the petitioners for interim relief pending entertainment of the appeal is rejected in view of the aforesaid observation that the tribunal may entertain the appeal and application made therein in accordance with law.