Punjab National Bank vs Satbir Gupta And Ors.

S.N.H. Zaidi, J

Today, none is present for the respondent though Mr. Brijesh Gupta, respondent No. 3, was present for self and other respondents on the previous date and has the knowledge of this date. Mr. Jha points out that additional written submissions on application (I.A. No. 215/2009) filed for condonation of delay in filing the appeal has already been filed with the Registry on 22.1.2013. Heard Mr. Jha on that application.

As per office report, the accompanying appeal has been filed with a delay of 23 days beyond the period of limitation. In the application (I.A. No. 215/2009) filed by the appellant for condonation of delay, it has been stated that the copy of the order impugned dated 26.6.2008 was prepared with an inordinate and undue delay and was received by the appellant on 29.1.2009. The Bank then obtained instructions of its higher officers on the viability of filing the appeal and thereafter the Counsel was approached on or about 10/11.3.2009 and the appeal could be prepared and filed on 23.3.2009.,

Respondent No. 3 has opposed the application by filing reply to it.

In its written submissions dated 8.4.2010, the appellant has admitted the delay of 23 days in filing the appeal. It has been submitted that as per Sub-section (2) of Section 18 of the SARFAESI Act, the appeal filed under Sub-section (1) thereof is required to be disposed of in accordance with the provisions of the RDDBFI Act and the rules made thereunder and since the proviso to Section 20(3) of the RDDBFI Act empowers the appellate Tribunal to entertain an appeal even after the expiry of the period of limitation, therefore, this Tribunal is empowered to condone the delay in filing the appeal, on being satisfied with the sufficiency of cause for not filing it within the period of limitation. It has further been contended that since Section 24 of the RDDBFI Act provides for the applicability of the provisions of the Limitation Act to an application made to the Tribunal, therefore, Section 5 of the Limitation Act can fairly be imported to condone the delay. It has also been urged that even otherwise since the application of the provisions of the Limitation Act has not been expressly excluded and the SARFAESI Act is special law, therefore, in view of Section 29(2) of the Limitation Act, the provisions contained in Sections 4 to 24 shall apply to an appeal filed under the said Act.

The appellant has also submitted that the issue of the applicability of the provisions of the Limitation Act was considered by the Bombay High Court in UCO Bank v. Kanji Manji Kothari, 2008(4) Mh.L.J. 424, wherein it has been held that the provisions of the Limitation Act are applicable to the DRT under the SARFAESI Act, including the power to condone the delay in filing the application.

In its additional written submissions dated 22.1.2013 it has also been contended that the view expressed by the Division Bench 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 & Anr., 1 (2013) BC 667 : AIR 2011 M.P. 205, is not sound in view of Section 29(2) of the Limitation Act. It is also pointed out that the said judgment has been challenged before the Hon'ble Supreme Court in SLP (C) No. 30786/2011, which is still pending and respondent No. 3 therein has been directed by the Court to maintain the status quo with respect to the property in question. The appellant has also relied upon the judgment of the Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5 and Gopal Sardar v. Karuna Sardar, 1 (2004) CLT 510 (SC) : 2 (2004) SLT 428 : (2004) 4 SCC 252 in support of his contentions.

I have considered the submissions of the appellant made in the written submissions and have also gone through the record. So far as the sufficiency of the ground of delay in filing the appeal is concerned, a perusal of the order impugned would show that it was made in the presence of the parties Counsel on 26.6.2008 whereby the S.A. was finally disposed of. It is, however, correct to say that free copy of the order was prepared on 21.1.2009 and was delivered to the appellant on 29.1.2009 by the office of the DRT concerned. Undoubtedly, there had been an inordinate and undue delay in preparing the copy of the order for the compliance of Rule 16 of the DRT (Procedure) Rules, 1993. However, on computing the period of limitation of 30 days from 29.1.2009, the appeal has admittedly been filed with a delay of 23 days as it was filed on 23.3.2009. The alleged reason for such delay that the Bank had to obtain instructions from its higher officers for filing the appeal cannot be accepted as the ground sufficient as it appears that the said instructions were obtained prior to 10th or 11th March, 2009 when the Counsel was approached, but even thereafter about 13 days were consumed in filing the appeal. The appellant has, therefore, failed to show the sufficient cause for delay in filing the appeal

So far as the question of applicability of the provisions of the Limitation Act and the power of this Tribunal to condone the delay in filing the appeal under Section 18 of the SARFAESI Act is concerned, the Division Benches of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India Anr., (supra) and Madras High Court in Dr. Zubida Begam & Anr. v. Indian Bank & Anr., 1 (2013) BC 67 : 2012 (5) Current Tamil Nadu Cases 369, have held that this appellate Tribunal has no power to condone the delay. The Madras High Court while considering the issue of the applicability of the provisions of the Limitation Act to this Tribunal, in view of Section 29(2) of the Limitation Act, has also discussed the judgment of the Hon'ble Supreme Court in Mukri Gopalan's case (supra) and has held 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 Act. It has observed that the Apex Court in the case of Mukri Gopalan has also 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 Section 18 of the SARFAESI Act.

In M/s. Seth Banshidhar Kedia Rice Mills case (supra), the Madhya Pradesh High Court, while comparing the provisions of the RDDBFI Act and the SARFAESI Act, more particularly Section 18 of the SARFAESI Act with Section 20 of the RDDBFI Act, 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 was given to the appellate Tribunal under the proviso to Section 20(3) and came to the conclusion that the Legislature has consciously decided not to confer the power to condone the delay with the appellate Tribunal under Section 18 of the SARFAESI Act. The Hon'ble 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 Apex Court made in the cases of Fair Growth Investments Ltd. v. Custodian, 4 (2004) CLT 156 (SC) : 6 (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 consciously excluded the applicability of the provisions of Sections 4 to 24 of the Limitation Act so far as they relate to Section 38 of the SARFAESI Act, held that the Appellate Tribunal has no power to condone the delay.

I am in respectful agreement with the views taken by the Hon'ble High Courts of Madhya Pradesh and Madras in the aforementioned cases. The view expressed by the Bombay High Court in the case of UCO Bank v. Kanji Manji Kothari (supra) is in respect of the power of the DRT to condone the delay in filing the petition under Section 17 of the SARFAESI Act and the Hon'ble Court has neither considered nor held that the appellate Tribunal also has the power to condone the delay in filing the appeal under Section 18 of the SARFAESI Act, as such the said case has no application to the controversy involved herein.

The contention of the appellant that Section 24 of the RDDBFI Act provides for the applicability of the provisions of the Limitation Act has also no force as it relates to an application made to the Tribunal under Section 19 of the RDDBFI Act or, at the most, to an application filed under Section 17 of the SARFAESI Act, because the term Tribunal as defined Section 2(o) of the RDDBFI Act, means only the Tribunal which is established under Section 3 and not an appellate Tribunal which is established under Section 8(1) of the Act.

In view of above discussion, it is held that the provisions of the Limitation Act are not applicable to this Tribunal in exercise of the jurisdiction under Section 18 of the SARFAESI Act and this Tribunal has no power to condone the delay in filing the appeal under the said section. The application (I.A. No. 215/2009) is accordingly dismissed. Since the appeal is time-barred by 23 days, the same cannot be admitted and is dismissed as such.

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