Raj Kumar Thakur vs Andhra Bank

Mr. Gaur submits that no formal reply to the application filed by the appellant for condonation of delay is to be filed by the bank. Heard parties counsel on application (I.A. No. 116/2012) filed for condonation of delay in filing the appeal.

The thrust of the arguments of Mr. Pranesh is that the proviso to Sub-section (3) of section 20 of the RDDBFI Act empowers this Appellate Tribunal to entertain an appeal even after the expiry of the period of limitation and since Sub-section (2) of section 18 of the SARFAESI Act provides that the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the RDDBFI Act, therefore, this Tribunal has power to entertain the appeal filed under section 18 of the SARFAESI Act even after the expiry of the period of limitation provided under Sub-section (1) thereof. He also submits that section 37 of the SARFAESI Act does not bar the application of other laws for the time being in force and as such the provisions of the Limitation Act are applicable to the appeal filed under the SARFAESI Act. He further submits that the power exercised by this Tribunal under the proviso to section 20(3) of the RDDBFI Act can equally be exercised in respect of the appeal filed under section 18(1) of the SARFAESI Act in entertaining the appeal after the expiry of the period of limitation.

Mr. Gaur, on the other hand, submits that the appeal is liable to be dismissed as it is time barred and he has nothing more to say.

The question of the applicability of the provisions of the Limitation Act, 1963 to the appeal filed under section 18(1) of the SARFAESI Act as well as jurisdiction I power of the Appellate Tribunal to condone the delay in respect of such appeal has been considered at great length by the Division Bench of the Jabalpur Bench of the Madhya Pradesh High Court in the case of M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. v. State Bank of India (Writ Petition No. 2393/2011, decided on 5.9.2011). The Hon'ble Division Bench has considered almost all the pleas raised by Mr. Pranesh, as stated above, and has come to the conclusion that the provisions of the Limitation Act are not applicable to the Appellate Tribunal, which has no power to condone the delay in filing the appeal under section 18(1) of the SARFAESI Act. The Hon'ble Court, in paragraphs 16 to 18 of the judgement, has observed as follow:

When I compare section 18 of the SARFAESI Act with section 20 of the RDDBFI Act, I find that in section 18 not only the period of limitation for filing an appeal has been reduced to 30 days from 45 days as provided in section 20 but the power of the Appellate Tribunal to condone delay has also been excluded which is provided in section 20 of the RDDBFI Act. This itself leaves no iota of doubt that the legislature has consciously intended not to confer the power of condonation of delay with the Appellate Tribunal under section 18 of the SARFAESI Act. Because, it is a well-settled principle of law that just as use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the Legislature that the language so used in the later statute is used in the same sense as in the earlier one, change of language in a later statute in pari materia is suggestive that change of interpretation is intended (see Principles of Statutory Interpretation by Justice G.P. Singh 11th Edition, 2010 Page 310).

There is also an identical provision in Sub-section (7) of section 17 of the SARFAESI Act which states that the Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of RDDBFI Act. Under the RDDBFI Act the Tribunal and the Appellate Tribunal are separately established and its section 24, which deals with limitation, states that the provisions of Limitation Act, 1963 shall, as far as may be, apply to an application made to a Tribunal. As already mentioned above, application under section 17 can be made by any aggrieved person to the Tribunal within 45 days from the date on which he has suffered an action under any of the measures referred to in Sub-section (4) of section 13 of the SARFAESI Act. Thereafter any person aggrieved by any order made by the Tribunal under section 17 can prefer an appeal to the Appellate Tribunal under section 18 within 30 days from the date of receipt of the order of the Tribunal. Section 24 of the RDDBFI Act has not made the provisions of the Limitation Act applicable to an Appellate Tribunal. This being the position, it is apparent that although the Tribunal can give the benefit of section 5 of the Limitation Act, while dealing with an application under section 17 of the SARFAESI Act, the Appellate Tribunal cannot do so while considering the appeal under section 18. This view also finds support from the decision of the Supreme Court in Gopal Sardar v. Karuna Sardar (2004) 4 SCC 252 wherein it is held that when in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under a particular section of that statute, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. This view was also followed by the Supreme Court in Fairgrowth Investments Limited (Supra).

Having regard to the object of the SARFAESI Act that it intends to ensure speedy recovery of dues of Banks and also for quick resolution of dispute arising out of the action taken for recovery of such dues, I have no hesitation in holding that the legislature has consciously excluded the applicability of the provisions of section 4 to section 24 of the Limitation Act in so far as they relate to section 18 of the SARFAESI Act. The decisions of UCO Bank v. Kanji Manji Kothari and Punnu Swami v. the Debts Recovery Tribunal of Bombay and Madras High Courts relied upon by the learned counsel for petitioner are with regard to the applicability of section 5 of the Limitation Act only to section 17 of the SARFAESI Act not section 18. In both these decisions, section 18 has not even been referred. The decisions are, therefore, not applicable in the present case.

I am in full agreement with the above views of the Hon'ble Court and have also taken a similar view on its basis in several matters that the provisions of the Limitation Act do not apply to the appeal filed under section 18(1) of the SARFAESI Act and since the said Act does not confer the jurisdiction upon this Tribunal to condone the delay in filing the appeal, it has no power to condone the same.

In view of above discussion, the contentions of Mr. Pranesh cannot be accepted. And this application is dismissed, being devoid of any force. As per the officer report, this appeal has been filed beyond the period of limitation and is time-barred by 1274 days. In view of that the appeal is also dismissed as time-barred.