Nytra Belts And Ors. vs Vijaya Bank And Ors.

S.N.H. Zaidi, J

Heard parties' Counsel on application (I.A. No. 301/2012) filed for condonation of delay in filing the appeal against the order dated 28.9.2010 of the DRT-II, Chandigarh passed in S.A. No. 221/2009. The respondent Bank has filed the reply opposing the application.

Mr. Jain points out that the appellants had preferred a Writ Petition [C. W.P. (C) No. 18056/10] against the order impugned before the Hon'ble High Court of Punjab and Haryana on 4.10.2010, but the said Writ Petition was dismissed on 26.9.2011 with the observation that the order of the Tribunal is appealable in terms of Section 18 of the SARFAESI Act and in view of the availability of alternative efficacious remedy to the petitioner the writ petition is not maintainable and the petitioner was given liberty to avail such remedy under the Act. According to Mr. Jain, the appellants were prosecuting their case in a bona fide manner and in good faith before the High Court and immediately after the dismissal of the Writ Petition they got the appeal prepared and filed without any delay on 28.10.2011. He submits that the appeal has been filed within 30 days of obtaining the order of the Hon'ble High Court and if the period taken before the High Court is excluded, the appeal would be within the period of limitation.

Mr. Khatri, however, contends that since the writ petition filed by the appellants/applicants was not maintainable in law, therefore, the applicants are not entitled to take the benefit of filing the Writ Petition. He also contends that the appeal has been filed with delay of more than one year for which no sufficient cause has been shown by the appellant/applicants.

Before considering the sufficiency of cause for condoning the delay, it is to be seen whether or not this Tribunal is empowered to condone the delay in filing the appeal under Section 18 of the SARFAESI Act. A Division Bench of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Anr., I (2013) BC 667 : AIR 2011 M.P. 205, has considered this question at great length and while comparing the provisions of the RDDBFI Act and the SARFAESI Act, more particularly Section 20 of the RDDBFI Act with Section 18 of the SARFAESI Act, has found that the period of limitation in filing an appeal under Section 18 has been reduced from 45 to 30 days with no discretion to condone the delay, whereas such discretion has been given to the appellate Tribunal in the proviso to Section 20(3) of the RDDBFI Act and has come to the conclusion that the Legislature has consciously decided not to confer the power of condoning the delay to the appellate Tribunal under Section 18 of the SARFAESI Act. The Hon'ble Court has also considered the application of Section 29(2) of the Limitation Act to an appeal filed under the said Section 18 in the light of the judgment of the Hon'ble Supreme Court in the cases of Fair Growth Investments Ltd. v. Custodian, IV (2004) CLT 156 (SC) : VI (2004) SLT 376 : (2004) 11 SCC 472 and Hukumdev Narain Yadav v. L.N. Mishra, AIR 1974 SC 480 and while observing that the Legislature has excluded the applicability of the provisions of Sections 4 to 24 of the Limitation Act so far as they relate to Section 18 of the SARFAESI Act, held that the appellate Tribunal has no power to condone the delay in filing the appeal under the said section.

In Dr. Zubida Begum & Anr. v. Indian Bank & Anr., I (2013) BC 67 : 2012 (5) Current Tamil Nadu Cases 369, a Division Bench of the Madras High Court, while agreeing with the views expressed by the Madhya Pradesh High Court in the case of M/s. Seth Banshidhar Kedia Rice Mills (supra) and also considering the judgment of the Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, AIR 1995 SC 2272. has observed that once it is held that the Tribunal is not a Court, Section 5 of the Limitation Act would not be available to the appeal filed under Section 18 of the SARFAESI Act and as such the appellate Tribunal has no power to condone the delay.

I am in respectful agreement with the views expressed by the Hon'ble High Courts in the aforementioned cases and accordingly hold that the appeal filed by the applicant is not within limitation and has been filed beyond the period of limitation and this Tribunal has no power to condone such delay. In view of this, the question relating to the sufficiency of the ground of delay loses its efficacy. The application, therefore, cannot be allowed and is accordingly dismissed. Since the appeal has been filed much beyond the period of limitation and is barred by time, therefore, it is accordingly dismissed.