Sushila Devi Bansal vs Oriental Bank Of Commerce And Ors.

S.N.H. Zaidi, J

Heard Mr. Garg on application (I.A. No. 26/2012) filed under Section 5 of the Limitation Act read with the provisions of the SARFAESI Act and rules, by the appellant for condonation of delay occurred in filing the appeal. None is present for the respondent Bank despite the matter is being taken up on the revised call after the pass over on the first call. Mr. Garg points out that there is a delay of only three days in filing the appeal, which had occasioned as the Counsel for the appellant was suffering from high fever on 23.12.2011, when the appeal against the order dated 23.11.2011 should have been filed, but since 24.12.2011 and 25.12.2011 being Saturday and Sunday were holidays, the appeal could be filed on 26.12.2011. He also contends that the delay was neither deliberate nor intentional but was with a bona fide reason.

He also points out that in a recent judgment rendered on 4.9.2012 by the Andhra Pradesh High Court in I  (2013) BC 24: Writ Petition No. 22317 of 2012, Smt. Sajida Begum v. State Bank of India, SARC Nampally, Hyderabad, the Division Bench of the Court, while observing that the decision of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Anr. (2013) BC 667 : AIR 2011 MP 205, is contrary to the ratio of the judgment of Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboo-backer,  AIR 1995 SC 2272, has held that it does not lay down correct law. He also points out that the Andhra Pradesh High Court has further 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 before the DRT as well as DRAT and as such the DRAT has power under Section 5 of the Limitation Act to condone the delay in filing the appeal under Section 18 of the SARFAESI Act.

A Division Bench of the Madras High Court in Dr. Zubida Begum & Another v. Indian Bank & Anr, : (2013) BC 67 : 2012 (5) CTNC 369, has also considered the issue whether the DRAT has power to condone the delay in filing the appeal under Section 18 of the SARFAESI Act and while agreeing with the views expressed by the Division Bench of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd.'s case (supra) and also considering the judgment of the Apex 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 under Section 18 of the SARFAESI Act. It is also observed 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 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 Mill's case (supra) the Division Bench of the Madhya Pradesh High Court, while comparing the provisions of the RDDBFI Act and the SARFAESI Act, more particularly Sections 18 of the SARFAESI Act and 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 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 Hon'ble 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, IV 2004) CLT 156 (SC) : VI (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 provision 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 under the said section.

I am in agreement with the views of the Hon'ble High Courts of Madhya Pradesh and Madras in the cases of Seth Banshidhar Kedia Rice Mills and Dr. Zubida Begum (supra). I am also of the considered view that under Section 22 of the RDDBFI Act, the DRT and the DRAT have similar powers as are vested in a Civil Court under the CPC only in respect of the matters enumerated in Clauses (a) to (f) to Sub-section (2) thereof and these Tribunals do not have all the powers of a Civil Court in deciding a suit or an appeal under the CPC in exercise of the original jurisdiction by the DRT under Section 17 of the SARFAESI Act or under Section 19 of the RDDBFI Act or in exercise of the appellate jurisdiction by the DRAT under Section 18 of the SARFAESI Act or Section 20 of the RDDBFI Act.

I am also of the view that under Section 24 of the RDDBFI Act the provisions of the Limitation Act are applicable only to an application made to a Tribunal, as defined under Section (2)(o) of the said Act, and not to an appeal filed before an Appellate Tribunal.

In view of above, it is held that since the provisions of the Limitation Act are not applicable to this Tribunal in exercise of jurisdiction under Section 18 of the SARFAESI Act, this Tribunal has no power to condone the delay in filing the appeal under the said Act and the application filed under Section 5, Limitation Act for condonation of delay is liable to be dismissed. Application (I.A. No. 26/2012) is dismissed accordingly. Since the appeal has been filed beyond the prescribed period of limitation, therefore, the same cannot be entertained and is dismissed as time-barred.

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