The 45-day limitation period under Section 17 of the SARFAESI Act is mandatory and cannot be condoned by the DRT due to lack of inherent power.

ORDER :

KRISHNA S. DIXIT, J.

Petitioner being the guarantor for a gigantic loan of Rs.12,84,46,406.76 as quantified on 04.04.2017 is knocking at the doors of writ court for assailing the Debt Recovery Appellate Tribunal’s order dated 01.04.2024 whereby his application in I.A.308/2023 u/s.17…. having been negatived, his appeal in AIR No.676/2023 also has met the same fate. In the said appeal challenge was laid to the DRT order dated 27.03.2023 whereby his application in I.A.3078/2019 seeking condonation of delay in filing I.R.No.4121/2019, was dismissed.

2. FOUNDATIONAL FACTS OF THE CASE:

2.1 Petitioner availed a housing loan facility of Rs.2.90 crore from the respondent –bank. One White Horse Network Services Pvt. Ltd., had availed loan facility in all Rs.8 crore and that petitioner had furnished the subject property by way of mortgage for securing repayment. The loans having not being repaid, the bank resorted to coercive proceedings for recovery as provided under the provisions of SARFAESI Act, 2002. Sec.13(2) notice was issued on 04.04.2017 followed by Possession Notice u/s.13(4) dated 08.08.2017.

2.2 Petitioner along with White Horse filed application in I.R.No.2655/2017 u/s.17(1) & (3) of the Act before the DRT, Bangalore challenging the possession notice. An application in I.A.No.2095 of 2017 supported by affidavit was filed seeking condonation of delay of 14 days on the ground that the subject notice was not delivered to him, he having learnt of it from the neighbours. During the pendency of the said proceeding the bank issued sale notice on 09.11.2017 fixing 27.12.2017 as the day for public auction.

2.3 The DRT granted interim stay on 12.12.2017 against the possession notice subject to petitioner depositing Rs.2 crore with the bank. White Horse had filed S.A.No.429 of 2017 challenging the public auction notice. The DRT vide order dated 22.12.2017 had stayed confirmation of auction and that came to be vacated for non-compliance of the condition. Petitioner however had partially complied with the condition by depositing only Rs.10 lakh and he could not pay the remaining Rs.1.90 crore.

2.4 The bank issued Second Sale Notice dated 23.03.2018 fixing 31.03.2018 as the date of public auction of mortgaged property. Petitioner filed W.P.Nos.13207- 13208/2018 challenging the said notice. A learned Single Judge vide ad interim order dated 28.03.2018 had stayed finalizing of any sale subject to petitioner depositing Rs.5 crore within six weeks. This condition was not complied with and petitions came to be dismissed on 06.06.2018 reserving liberty to the petitioner to pursue pending I.R.No.2655/2017 before the DRT.

2.5 There were other writ petitions which do not merit mentioning. Auction was conducted on 22.03.2019 and the 2^nd respondent being the highest bidder got the sale of subject property. Petitioner on 06.05.2019 filed an application seeking amendment to I.R.No.2655/2017 for impleadment of 2^nd respondent. On 16.05.2019 the Sale Certificate was issued to the 2^nd respondent confirming the auction sale. On 11.10.2019 Petitioner filed I.R.No.4121/2019 u/s.17(1) & (3) of 2002 Act, challenging entire measures as being illegal & invalid.

2.6 Since there was delay in laying the challenge before the DRT, an application was filed in I.A.No.3078 of 2019 seeking condonation of delay of 31 days when actually delay was admittedly 158 days. The bank filed objections to the said application. The DRT vide order dated 27.03.2023 dismissed the said application on the ground that it had no power to condone the delay. Petitioner filed W.P.No.8379/2023 challenging the said order which came to be disposed off reserving liberty to the petitioner to approach DRAT. In the meanwhile, parties were directed to maintain status quo. Petitioner filed appeal (Dy.No.676 of 2023) on 24.05.2023. An application was also moved seeking condonation of delay. The DRAT vide order dated 01.04.2024 dismissed the delay application and as a consequence appeal also came to be ne