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High Court of Andhra Pradesh
THE HONOURABLE ACTING CHIEF JUSTICE MR. PINAKI CHANDRA GHOSE & THE HONOURABLE MR. JUSTICE VILAS V. AFZULPURKAR
Smt. Sajida Begum
Versus
State Bank of India, SARC Nampally, Hyderabad, Rep. by its authorized officer
WRIT PETITION No.22317 of 2012
Decided on : 04-09-2012
Maharashtra Rent Control Act, 1999 – Limitation Act – Civil Procedure Code, 1908 – Section 151 – Secured Assets – Possession of property - Recovery of Loan – Petitioner challenged order of Debts Recovery Tribunal Hyderabad in appeal before petitioner had questioned possession taken over by respondents with regard to secured asset – Petitioner asserts that she is absolute owner and possessor of the said house property by virtue of registered gift deed executed by her husband respondent bank asserts that it is a secured asset was mortgaged by depositing registered Gift Deed dated executed by her husband Mohammed said mortgage was created in respondent bank by virtue of term loan and working capital limit availed by Vet Formulations represented by its proprietor – While we are not for present concerned with merits of rival claims as above preferred by petitioner was dismissed on merits by DRT under order and questioning correctness of said order – Decision in deals with the question of applicability of the Limitation Act to the Railway Claims Tribunal, which is, admittedly, not a civil Court; that case also has no application to the present case decision in PRAKASH H. JAINs case considered as to whether the competent authority under the Maharashtra Rent Control Act, 1999 is not a civil Court and on holding so, consequently, Section 151 of CPC was held not applicable – Decision of Kerala High Court in JAYANs case is clearly distinguishable as it does not take into consideration Section 29 of Limitation Act or decision of Supreme Court in respect express our inability to agree with the said view – Whether sufficient cause was made out. Held, Decision in BIRLA CEMENT WORKSs case deals with the question of applicability of the Limitation Act to Railway Claims Tribunal, which is, admittedly not a civil Court that case also has no application to the present case decision in considered as to whether the competent authority under Maharashtra Rent Control Act, 1999 is not a civil Court and on holding so, consequently Section 151 of CPC was held not applicable decision of the Kerala High Court in JAYANs case is clearly distinguishable, as it does not take into consideration Section 29 of Limitation Act or the decision of the Supreme Court in case with respect we express our inability to agree with the said view. Similarly, the decision in NOHARLAL VERMAs case is also distinguishable as it considered on facts, as to whether sufficient cause was made out – Petition is accordingly allowed.
Vilas V. Afzulpurkar, J.
Petitioner herein has challenged the order dated 04.05.2012 passed by the Debts Recovery Appellate Tribunal (DRAT), Chennai dismissing the application filed by the petitioner, being I.A.No.1654 of 2010 in AIR(SA).No.1012 of 2010.
2. The aforesaid appeal and the interlocutory application were preferred before DRAT against order of the Debts Recovery Tribunal-II (DRT), Hyderabad in S.A.No.142 of 2010 dated 27.08.2010. In the said appeal before DRT, the petitioner had questioned the possession taken over by the respondents with regard to the secured asset i.e. house bearing No.18-12-419/941/A/1 situated at Hafez Baba Nagar, Kanchan Bagh, Hyderabad. Petitioner asserts that she is the absolute owner and possessor of the said house property by virtue of a registered gift deed dated 27.02.2009 executed by her husband, Mohd. Nazeer Khan, whereas the respondent bank asserts that it is a secured asset, which was mortgaged by Smt Khaiser Begum by depositing the registered Gift Deed dated 04.02.1995 executed by her husband Mohammed Arif Khan and the said mortgage was created in favour of the respondent bank on 14.11.1995 by virtue of term loan and working capital limit availed by M/s. Bio Vet Formulations represented by its proprietor, Sri Arif Khan. While we are not for the present concerned with the merits of the rival claims, as above, S.A.No.142 of 2010 preferred by the petitioner was, however, dismissed on merits by DRT under order dated 27.08.2010 and questioning the correctness of the said order, petitioner had preferred further appeal before DRAT along with an application seeking condonation of delay of 16 days in filing the said appeal. The application, being I.A.No.1654 of 2010, has since been dismissed by DRAT under the impugned order by placing reliance upon a decision of the Madhya Pradesh High Court in SETH BANSHIDHAR KEDIA RICE MILLS PVT. LTD v. STATE BANK OF INDIA (AIR 2011 MP 205) holding that under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the appellate tribunal has no power to condone the delay in presentation of the appeal. The correctness of the said view is questioned in this writ petition.
3. We have heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondent bank.
4. Learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in THIRUMALAI CHEMICALS LTD. v. UNION OF INDIA (2011) 6 SCC 739) and a Full Bench judgment of the High Court of Calcutta in UNION OF INDIA v. JAGADISH PRASAD JALAN NANDALAL (2012 (7) TMI 641) to which one of us is a party (the Hon'ble the Acting Chief Justice). He also placed reliance upon a Division Bench judgment of the Bombay High Court in UCO BANK, MUMBAI v. M/s. KANJI MANJI KOTHARI AND CO. (2008 (4) MHLJ 424 = LAWS (BOM) 2008 (2) 173) and a decision of the Supreme Court in FAIRGROWTH INVESTMENTS LTD. v. CUSTODIAN (2004) 11 SCC 472).
5. Per contra, learned standing counsel for the respondent bank placed reliance upon a decision of the Supreme Court in L.S. SYNTHETICS LTD. v. FAIRGROWTH FINANCIAL SERVICES LTD. (2004) 11 SCC 456); THE COMMISSIONER OF SALES TAX, U.P., LUCKNOW v. M/s. PARSON TOOLS AND PLANTS, KANPUR (1975) 4 SCC 22); BIRLA CEMENT WORKS v. G.M. WESTERN RAILWAYS (AIR 1995 SC 1111); PRAKASH H. JAIN v. MARIE FERNANDES (2003) 8 SCC 431); a judgment of the Kerala High Court in JAYAN v. HONG KONG AND SHANGHAI BANKING CORPORATION LTD. (IV (2009) BC 635); NOHARLAL VERMA v. DISTRICT COOPERATIVE CENTRAL BANK LIMITED (2008) 14 SCC 445) and lastly the decision of the Supreme Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE v. HONGO INDIA P. LTD. (2009) 5 SCJ 774).
6. Before we appreciate the rival contentions, the legislative environment spread over the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act'); the Recovery o
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