Sunil Gupta vs Bank Of India

S.N.H. Zaidi, J

The instant application has been filed by the appellants under Section 5 read with Section 14 of the Limitation Act seeking condonation of delay of 172 days occasioned in filing the accompanying appeal. The respondents have opposed the application by filing the reply.

I have heard Mr. Bakshi Uday Dip Singh, learned Counsel for the appellants/applicants and Mr. R.K. Dhawan, learned Counsel for the respondents and perused the record.

Mr. Singh has submitted that the order impugned was passed on 22nd March, 2011 and on receipt of the copy thereof on 28th March, 2011 the appellant/applicants had filed a writ petition on 18th April, 2011 before the Punjab and Haryana High Court which, after issuing notice of motion to the respondents, had ordered to keep further action qua the sale of the property in abeyance. He has further submitted that the respondent Bank thereafter appeared before the High Court and filed its written statement, but the Hon'ble Court, vide order dated 15th September, 2011, refrained itself from exercising the writ jurisdiction on the ground that the order impugned is appealable and dismissed the writ petition. He has also submitted that the appellants had accordingly filed the accompanying appeal on 11th October, 2011 after obtaining the certified copy of the order of the High Court on 28th September, 2011. According to Mr. Singh, the period during which the matter remained under the consideration before the Hon'ble High Court is not countable under Section 14 of the Limitation Act while computing the period of limitation and the delay is condonable as there was no mala fide on the part of the appellants to cause delay in filing the appeal.

Mr. Singh, besides showing the cause of delay in filing the appeal, has also contended that though there is no specific provision in the SARFAESI Act for condonation of delay in filing the appeal under Section 18 of the said Act, yet this Tribunal is fully empowered to condone the delay under Section 5 read with Section 14 of the Limitation Act as by virtue of Section 29(2) of the Limitation Act and the provisions contained in Sections 4 to 24 (both inclusive) thereof are applicable to a matter under the SARFAESI Act as the application of the Limitation Act has not been expressly excluded by the Act, In support of his contention, Mr. Singh has relied upon the judgment of the Andhra Pradesh High Court in Sajida Begum v. State Bank of India, MANU/AP/0546/2012MANU/AP/0546/2012 : AIR 2013 AP 24 : I (2013) BC 24, wherein the Hon'ble Division Bench of the High Court while holding that the decision of Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills Pvt. Ltd. v. State Bank of India, MANU/MP/1202/2011MANU/MP/1202/2011 : AIR 2011 MP 205 : I (2013) BC 667, does not lay down correct law and is in fact contrary to the ratio of judgment of the Supreme Court in Mukri Gopalan v. C.P. Aboobacker, MANU/SC/0453/1995MANU/SC/0453/1995 : AIR 1995 SC 2272, has ultimately held that Section 29(2) of the Limitation Act is clearly attracted and thereby Sections 4 to 24 (both inclusive) of the Limitation Act would be applicable to the proceedings under Sections 17 and 18 of the SARFAESI Act and as such this Tribunal has power under Section 5 to condone the delay in filing the appeal.

Mr. Dhawan has, on the other hand, submitted that the cause of delay shown by the applicants is not acceptable as there is nothing on record to show that the applicant has filed the writ petition before the Punjab and Haryana High Court bona fide with due diligence and in good faith as they themselves have not averred these circumstances in the application and as such this matter does not fall within the purview of Section 14 of the Limitation Act. Besides this, Mr. Dhawan has also contended that the Division Bench of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills' case (supra) had considered the question of the competence of this Tribunal to condone the delay under Section 5 of the Limitation Act in filing the appeal under Section 18 of the SARFAESI Act at great length and while deciding the question in the negative has held that the provisions of the Limitation Act are not applicable to an appeal filed before the Appellate Tribunal.

I have considered the submissions of the parties' Counsel. The contention of Mr. Dhawan appears tenable that the averments in Clause 4 of the appeal memo that the appeal is within the period of limitation is contrary to their own assertion in the instant application, which says that the appeal has been filed with a delay of 172 days. The appellants/applicants have failed to show the circumstances under which the order impugned was assailed in writ jurisdiction before the Punjab and Haryana High Court when there was a statutory remedy of appeal available to them under Section 18 of the SARFAESI Act. The application is silent whether the writ jurisdiction of the High Court was invoked under any wrong legal advice or under what circumstance.

A perusal of the order dated 15th September, 2011 of the High Court would show that the Hon'ble Court had simply refrained itself from exercising the writ jurisdiction in the matter and had dismissed it after observing that the order impugned is appealable in terms of the SARFAESI Act. Mr. Dhawan has pointed out that the Hon'ble Court has not given any liberty or direction to the Petitioner/Applicant to file the appeal and as such his contention is acceptable that the applicant cannot take any benefit from the said order. In my view mere assertion that there was no mala fide on the part of the appellants/applicants, would not be sufficient to bring the application within the parameter of Section 14 of the Limitation Act as it cannot be held that the applicants were prosecuting the matter before the High Court bona fide and in good faith. The cause of delay shown by the applicant, therefore, cannot be held to be sufficient.

So far as the question of condonation of delay under Section 5 of the Limitation Act by this Tribunal in filing the appeal under Section 18 of the SARFAESI Act is concerned, the said question, as has rightly been pointed out by Mr. Dhawan, was considered at great length by the Division Bench of the Madhya Pradesh High Court in the case of Seth Banshidhar Kedia Rice Mills' case (supra) and it has been held therein that the provisions of the Limitation Act are not applicable to an appeal before the Appellate Tribunal and as such it has no power to condone the delay under the Limitation Act. The Hon'ble Division Bench, while comparing the provisions relating to the filing of the appeal under Section 18 of the SARFAESI Act with Section 20 of the RDDBFI Act, has found that the period of limitation for filing an appeal under Section 18 of the SARFAESI Act has been reduced from 45 to 30 days with no discretion to condone the delay whereas power to condone the delay was given to the Appellate Tribunal under the proviso to Section 20(3) of the RDDBFI Act and has come to the conclusion that the Legislature has decided not confer the power to condone the delay with the Appellate Tribunal under Section 18 of the SARFAESI Act. The Hon'ble Court has also considered the question of application of Section 29(2) of the Limitation Act to the DRAT in the light of the judgments of the Apex Court in Fair Growth Investments Ltd. v. Custodian, MANU/SC/0898/2004MANU/SC/0898/2004 : (2004) 11 SCC 472 : IV (2004) CLT 156 (SC) : VI (2004) SLT 376 and Hukumdev Narain Yadav v. L.N. Mishra, MANU/SC/0247/1973MANU/SC/0247/1973 : 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 an appeal under Section 18 of the SARFAESI Act, ultimately held that the Appellate Tribunal has no power to condone the delay in filing the appeal.

In Dr. Zubida Begum v. Indian Bank, MANU/TN/1352/2012MANU/TN/1352/2012 : I (2013) BC 67 (DB) : 2012 (5) CTNC 369, a Division Bench of the Madras High Court while considering a similar question has shown agreement with the view expressed by the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills' case (supra) and while considering the judgment of the Apex Court in Mukri Gopolan's case (supra) has observed that once it is held that 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 been pointed out by the High Court that in the case of Mukri Gopalan (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 has 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.

In my opinion, the views taken by the High Courts in the cases of Seth Banshidhar Kedia Rice Mills (supra) and Dr. Zubida Begum (supra) are more acceptable than the view taken by the Andhra Pradesh High Court in 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 the Madras High Court has expressed 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 joint reading of both the aforesaid provisions clearly indicates that for the disposal of an application filed under Section 17 of the SARFAESI Act, the provisions of the Limitation Act shall be applicable. The aforesaid Section 24, however, does not make the Limitation Act applicable to an appeal before the Appellate Tribunal, which has been defined distinctly in Section 2(a) that the definition of the Tribunal' in Section 2(O) of the RDDBFI Act. The said circumstance, in my view, clearly indicates that the Legislature has consciously excluded the application of the provisions of the Limitation Act to an appeal filed before the Appellate Tribunal.

I am also of the view that though the correctness or otherwise of the judgment of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills' case (supra) may be in jeopardy after the grant of special leave and admission of the appeal by the Apex Court against it, yet since its operation has not been stayed, it is a good law so long as it has not been set aside or varied and thus has all the persuasive value. I am in respectful agreement with the views of the Madhya Pradesh and Madras High Courts expressed in the above referred cases and hold that the provisions of the Limitation Act are not applicable to an appeal filed to this Tribunal in exercise of the powers under Section 18 of the SARFAESI Act and as such this Tribunal has no power to condone the delay in filing the appeal.

In view of the aforesaid discussion, the application (I.A. No. 738/2011) is liable to be dismissed and is dismissed accordingly. Since the accompanying appeal qua the order impugned dated 22nd March, 2011 has been filed been beyond the prescribed period of limitation of 30 days from the date of the receipt of the said order, which in the present matter was received on 28th March, 2011, therefore, the same cannot be entertained and is dismissed as time-barred.

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