Pradeep Chugh vs State Bank Of India And Ors.

S.N.H. Zaidi, J

Heard parties Counsel on application (I.A. No. 55/2013) filed by the appellant for condonation of delay in filing the accompanying appeal. No formal reply to the application has been filed by the respondent Bank. Though the appellant, in Clause (4) of the appeal memo, relating to the limitation, has stated that the appeal is within limitation as prescribed under the SARFAESI Act, yet in the application it has been stated that the appeal could not be filed within the stipulated time as the certified copies of the order impugned and other relevant documents could not be received by the appellant in time. Mr. Charak has submitted that after receiving the copy of the order and the relevant documents, the appellant had approached the Delhi State Legal Services Authority to get the appeal filed and in that process the prescribed period of limitation has expired. According to him, the delay was neither intentional nor deliberated. According to the office report, the appeal is time-barred by 26 days. It, however, appears from the record that the certified copy of the order impugned dated 26.11.2012 was ready on 3.12.2012 but its delivery was taken on 13.12.2012, as has been stated in Clause (4) of the appeal memo. The limitation period of 30 days, from the date of receipt of the order of the Tribunal below, was to expire on 12.1.2013, but the appeal has been filed on 21.1.2013 and as such there is a delay of 9 days in filing the appeal.

So far as the question of condonation of such delay is concerned, this Tribunal has not been conferred with any power to condone the delay under the SARFAESI Act. The question whether or not this Tribunal is empowered to condone such delay under Section 5 of the Limitation Act was considered at length by a Division Bench of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. v. State Bank of India & Am., I (2013) BC 667=AIR 2011 M.P. 205. The High Court, while comparing Section 20 of the RDDBFI Act with Section 18 of the SARFAESI Act, having found that the period of limitation for filing an appeal under Section 18 has been reduced from 45 to 30 days with no discretion to condone the delay whereas the power to condone the delay has been given to the appellate Tribunal under the proviso to Section 20(3) of the RDDBFI Act, came to the conclusion that the Legislature has consciously decided not to confer the power to condone delay with the Appellate Tribunal under Section 18 of the SARFAESI Act. The High Court has also considered the application of Section 29(2) of the Limitation Act to the DRAT in the light of the observations of the Supreme Court in Fair Growth Investments Ltd. v. Custodian, V (2004) CLT 156 (SC)=VI (2004) SLT 376=(2004) 11 SCC 472 and Hukumdev Narain Yadav v. L.N. Mishra, AIR 1974 S.C. 480 and while observing that the Legislature has consciously 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, ultimately held that the appellate Tribunal has no power to condone the delay in filing the appeal before it.

Mr. Charak, however, submits that a Division Bench of the Andhra Pradesh High Court in Smt. Sajida Begum v. State Bank of India, 1 (2013) BC 24=AIR 2013 AP 24, has observed that the decision in Seth Banshidhar Kedia Rice Mills case (supra), does not lay down correct law and is in fact contrary to the ratio of the Supreme Court in Mukri Gopalan v. C.P. Aboobacker, AIR 1995 SC 2272, and has ultimately held that the provisions of Section 5 of the Limitation Act are applicable to the proceedings before the DRAT under Section 18 of the SARFAESI Act

Mr. Charak has also relied upon the judgment of the Bombay High Court in W.P. No. 3652-12, Manilal Govindji Khona v. Indian Bank, decided on 29.8.2012, and upon the order dated 31.1.2013 of the Allahabad High Court on CM. Stay Application No. 29743/2013 in Writ-C No. 5367/2013, M/s. Kashyap Trading Company v. State Bank of India & Ors., in support of his submissions. Both the cited matters, however, do not relate to the present controversy qua the power of this Tribunal in respect of the condonation of delay in filing the appeal under the SARFAESI Act.

Mr. Gautam, while arguing that the cause of delay shown in the application is not sufficient, also submits that a Division Bench of the Madras High Court in Dr. Zubida Begum &Anr. v. Indian Bank & Anr. 1 (2013) BC 67=2012(5) Current Tamil Nadu Cases 369, has also considered whether or not the DRAT has power to condone the delay in filing the appeal under the SARFAESI Act and while agreeing with the views expressed by the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills case (supra) and also considering the judgment of the Supreme Court in Mukri Gopalan's case (supra) 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. It has also been pointed out by Mr. Gautam that the Hon'ble High Court has stated that in Mukri Gopalan's case (supra) the Apex Court has observed with reference to Section 29(2) of the Limitation Act that if the power under Section 5 of the Limitation Act is to be exercised by the appellate Tribunal, it had to be conferred specifically and ultimately came to the conclusion that the DRAT has no power to condone the delay in preferring the statutory appeal under the SARFAESI Act.

A In my opinion, the view taken by the Madhya Pradesh and the Madras High Courts in Seth Banshidhar Kedia Rice Mills case (supra) and in Dr. Zubida Begum's case (supra) are more acceptable than the view taken by the Andhra Pradesh High Court in Smt. Sajida Begum's case (supra). The Andhra Pradesh High Court while holding that the decision in Seth Banshidhar Kedia Rice Mills' case does not lay down correct law, has not dealt with the reasoning given by the Madhya Pradesh High Court in support of its view with which Madras High Court has shown its agreement. It is pertinent to note that Section 17(7) of the SARFAESI Act provides that the DRT shall dispose of the application in accordance with the provisions of the RDDBFI Act and Section 24 of the RDDBFI Act provides that the provisions of the Limitation Act shall, as far as may be, apply to an application made to a Tribunal and, thus, a conjoint reading of both the provisions clearly indicates that the for the disposal of the application under Section 17 of the SARFAESI Act, the provisions of the Limitation Act shall be applicable. The aforesaid provision of Section 24, however, does not make the Limitation Act applicable to the appellate Tribunal, which has been defined in Section 2(a) distinctly from the definition of Tribunal in Section 2(o) of the RDDBFI Act. The said circumstance clearly indicates that the Legislature has consciously and intentionally excluded the application of the provisions of the Limitation Act to the appellate Tribunal. I am, therefore, in respectful agreement with the view taken by the Madhya Pradesh and the Madras High Courts that this Tribunal has no power to condone the delay under Section 5 of the Limitation Act in respect of the appeals filed under Section 18 of the SARFAESI Act. The delay in filing the appeal, therefore, cannot be condoned and the application is liable to be dismissed. Application (L.A. No. 55/2013) is accordingly dismissed. Since the appeal has been filed after the expiry of the period of Limitation, therefore, the appeal cannot be entertained and the same is dismissed as time-barred.

Copy of this order be furnished to the parties as per law.