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Judgment
Brijesh Sethi, Chairperson
This matter has been taken up by me through Video Conferencing.
This is an appeal against the order dated 03.02.2023 passed by learned DRT-I, Delhi, which runs as follows:-
"03.02.2023 Item no.17
Present: Mr. Vikrant Tripathi, Ld. counsel for the applicant.
Mr. Kaushik Mishra, Ld. counsel for the respondent Fl.
This matter is taken up by this Tribunal through video conferencing.
The present matter is taken up today for hearing in the light of order dated 22.12.2022 passed by the Hon'ble DRAT, Delhi in Misc. Appeal no.320/2022 vide which the Hon'ble DRAT has observed as under:
• In view of above, the learned DRT is hereby directed to take up the matter on 30.01.2023, and if not possible to take up the same on the said date, then to take it up immediately thereafter, and dispose it of as expeditiously as possible... "
The present securitization application has been filed by the applicant seeking relief to pass an order thereby quashing the proceedings under Section 14 of the SARFAESI Act dated 19.10.2022 and all proceedings.
It has been submitted on behalf of the applicants that the applicants have availed certain loan facilities from the respondent Fl against the mortgage of the property in question. It has further been submitted that the applicants were regularly payment the installments to the respondent Fl, however, due to Covid-19 the applicants could not deposit certain amount with the respondent Fl. It has further been submitted that after declaration of the account as NPA, the applicants have already deposited with the respondent Fl a sum of Rs.8.00 lakhs and the applicants are ready to deposit amount with the respondent Fl provided some time may be granted to them.
Ld. counsel for the applicant submitted that the present securitization application has been filed well within limitation because the applicant is also seeking staying the operation of the impugned physical possession of the notice dated 30.11.2022.
On the Ld. counsel for the respondent Fl has vehemently opposed the submission of the Ld. counsel for the applicant. He further submitted that the present securitization application is barred by limitation as the same has been filed beyond the statutory period of 45 days because in the present securitization application the applicant seeking relief against the order dated 19.10.2022 under section 14 of the SARFAESI Act, whereas the present securitization application has been filed on 17.12.2022, which is beyond the period of 45 days and even otherwise the interim relief has already becomes infructuous because the interim relief has already been rejected by this Tribunal on 21.12.2022. He further submitted that the applicant has also not filed any condonation application for condoning the delay in filling the present securitization application and even this Tribunal has no power to condone the delay under Section 5 of the Limitation Act, 1963 in view of the order dated 24.10.2017 passed by the Hon'ble Supreme Court in the matter of International Asset Reconstruction Co. of India Ltd. vs. O.L. Aldrich Pharmaceuticals Ltd. (Civil appeal no.16962 of 2017 - Arising out of SLP (C) no.25815 of 2013 and Iridium India Telecom Ltd. vs Doha Bank QSC Civil Appeal no.16963 of 2017 (Arising out of SLP (C) no.29534 of 2014). He further submitted that the respondent Fl has taken all the measures under the SARFAESI Act and the notices under Sections 13 (2) and 13 (4) have been served upon the applicants through all modes and after declaring the account as NPA the applicants have not cleared the entire dues of the respondent no.1 Fl. Accordingly, it has been prayed for dismissal of the present securitization application.
Heard the rival contentions of both the parties and perused the records.
In the present matter, the respondent Fl has raised the objection that the present securitization application is barred by limitation, whereas it has been submitted on behalf of the applicant that the present securitization application has been filed within 45 days as per Section 17 (1) of the SARFAESI Act. Apparently, the present securitization application has been filed on 17.12.2022 against the order dated 19.10.2022 passed under Section 14 of the SARFAESI Act, 2002 and in the main relief of the present securitization application the applicant is seeking quashing the proceedings under section 14 of the SARFAESI Act dated 19.10.2022, though, the applicant is also seeking interim order against the possession notice dated 30.11.2022, but such interim prayer of the applicant has already been rejected by this Tribunal vide order dated 21.12.2022. The Section 17 (1) of the SARFAESI Act, 2002 is reproduced herein below vide which, the securitization application should have been filed within forty-five days.
:... {1) Any person {including borrower) aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter 1 [ may make an application along with such fee/ as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken "
In the light above facts and circumstances of the case, this Tribunal is of the view that the present securitization application has been filed on 17.12.2022 against the order dated 19.10.2022 passed under Section 14 of the SARFAESI Act, 2002 i.e. beyond the statutory period of 45 days. Further, the applicant was well aware about the SARFAESI proceedings of the respondent Fl because the applicant himself has not denied about the receipt of the notices under Section 13 (2) and 13 (4) of the SARFAESI Act, 2002, therefore, it cannot be said that the applicant was not aware about the SARFAESI proceedings of the respondent F! and the applicant has also not filed any application for condoning the delay in filling the present securitization application. Even otherwise, the Hon'ble Supreme Court in the matter of International Asset Reconstruction Co. of India Ltd. vs. O.L. Aldrich Pharmaceuticals Ltd. (Civil appeal no.16962 of 2017 -Arising out of SLP (C) no.25815 of 2013 and Iridium India Telecom Ltd. vs. Doha Bank QSC Civil Appeal no.16963 of 2017 (Arising out of SLP (C) no.29534 of 2014) decided on 24.10.2017 has categorically laid down that this Tribunal has no power to condone the delay in filing the appeal under Section 5 of Limitation Act against the order passed by Id Recovery Officer of this Tribunal. Therefore, this Tribunal has no power to condone the delay under Section 5 of the Limitation Act.
Apparently, there is default on the part of the borrower/guarantor/ mortgagor in paying the dues of the respondent Fl and as per the respondent Fl, notices under Sections 13 (2) and 13 (4) of the SARFAESI Act have been duly served upon the borrower/mortgagor/guarantor through all modes and after declaration of the account as NPA, the borrowers have not cleared the dues of the respondent Fl till date. Further, Ld. counsel for the applicants has not raised any objection with regard to SARFAESI measures taken by the respondent bank and the applicants have also failed to point out any illegality or irregularity in the measures taken by the respondent bank under the SARFAESI Act including notices under Section 13 (2) and 13 (4) and the S. applicants have also not denied about the availment of the loan facilities availed by the borrowers. Hence, the present securitization application is liable to be dismissed being barred by limitation and also being devoid of merit.
Accordingly, present securitization application being barred by limitation and also being devoid of merits alongwith pending applications, if any, stands dismissed.
File be consigned to records.
Sd/-
(GOVIND BALLABH SHARMA)
PRESIDING OFFICER,
DRT-I, Delhi"
Appellants are aggrieved by the said order on the ground that the learned Presiding Officer has erred in dismissing his S.A. on the ground of limitation for the reason that the learned CMM had passed the order under Section 14 of the SARFAESI Act on 19.10.2022, the said order was later on amended on 10.11.2022, the Receiver had issued the notice on 30.11.2022, which was received by the appellants on 01.12.2022, and the appellants had filed the S.A. on 17.12.2022, which is within limiation. According to him, the limitation has to be reckoned from the date when the appellants received the notice of the learned Receiver and if it is calculated from the said date the S.A. filed by the appellants is within time.
The learned counsel for the respondent, on the other, draws the attention of this Tribunal to the main S.A. bearing No.585/2022 wherein the appellants have prayed to set aside the order dated 19.10.2022 of the learned CMM and, therefore, the limitation should be reckoned from the said date. He further states that the arguments now addressed by the learned counsel for the appellants were not put forth before the learned DRT. To this, the learned counsel for the appellants stats that he was not the counsel before the learned DRT and some other counsel was appearing on behalf of the appellants there. Learned counsel, however, states that the DRT even otherwise ought to have considered all these aspects. He further states that even if the DRT has erred in doing so, this Appellate Tribunal can consider the same.
I have considered the rival submissions. It is not in dispute that the order under Section 14 of the SARFAESI Act was passed by the learned CMM on 19.10.2022. The same was subsequently amended by him on 10.11.2022. Notice was issued by the learned Receiver on 30.11.2022, which was received by the appellants on 01.12.2022. The S.A. was filed on 17.12.022, i.e. within the period of limitation since it ought to have been filed within 45 days.
In the opinion of this Tribunal 45 days have to be reckoned from the date when the notice issued by the Receiver was received by the appellants, and not from the date when the learned CMM passed the order for the reason that the appellants were never present before the learned CMM when that order was passed under Section 14 of the SARFAESI Act. The order came to the knowledge of the appellants only when they received the notice issued by the learned Receiver on 01.12.2022.
The learned counsel for the appellants in this regard has also relied upon the judgement of Hon'ble High Court at Calcutta in W.P.A. 18157 of 2022 titled 'Ws Deecon India Pvt. Ltd. & Ors. vs. Canara Bank & Ors.' paragraph 6 of which runs as follows:-
"Moreover, the time period mentioned in Section 17(1) of the SARFAESI Act, must be given a purposive construction. Although, the starting point is the date of the impugned measure taken by the secured creditor, the provision would be rendered arbitrary and ineffective if the date of knowledge of the 'person' [under section 17(1)] is not taken into account. If the date of knowledge is discounted, then most applications under section 17(1) would be rendered infructuous particularly where the `person' receives the communication of the impugned action beyond the 45-days time limit."
In view of the above judgment, it is clear that the limitation is to be reckoned from the date when the appellant has received notice from the learned Receiver. The impugned order dated 03.02.2023 is, therefore, set aside and the matter is remanded back to the learned DRT for deciding the same on merit.
Let parties appear before learned DRT-I, Delhi on 06.03.2023. Leanred Presiding Officer , DRT-I, Delhi is requested to take up the matter on 06.03.2023, and if it is not possible to take up the matter on the said date, then let it be taken up immediately thereafter on any convenient date but keeping in mind the fact that the possession of the property in question is going to be taken on 10.03.2023, and pass appropriate order in accordance with law.
With the above direction, the appeal stands disposed of.
Since the appeal has been disposed of, the pre-deposit amount of Rs.15.00 lacs deposited by the appellants vide DD No.878832 dated 28.02.2023 and Rs.1.00 lac deposited vide DD No.878834 dated 01.03.2023 be released in favour of the appellants within 10 days.
File be consigned to record room.