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2011 Supreme(Bom) 1236
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.P. BHANGALE
Madhukar Govindrao Thaware & Others
Versus
Central Bank of India
W.P. No. 1488 of 2011
Decided on : 13-10-2011
For the Petitioners:S.N. Kumar, Ms. Y. Ramani Patro, Swapnil Lavatawar, Ms. Seema Shrinath, Advocates.
For the Respondent:N.K. Fuladi, U.K. Fuladi, Advocates.
Headnote:Recovery of Debts Due to Bank and Financial Institutions Act, 1993 - Nature and effect of. Since Act 1993 is a special statute hence it overrides provisions of General Law and as such Tribunal is competent to pass interim orders.
Recovery of Debts Due to Bank and Financial Institutions Act, 1993 - - Powers of DRT and DRAT. Since DRT and DRAT are not tied down by procedure prescribed under CPC hence DRT and DRAT are empowered to regulate their own procedure subject to provisions of Act and Rules by following principles of natural justice.
Recovery of Debts Due to Bank and Financial Institutions Act, 1993 - Section 1 - Object of. Object of Act is to work out a suitable and speedy mechanism through which dues to Banks and Financial Institutions can be realized without delay.
It aims at overcoming the procedural hurdles faced by the Banks and Financial Institutions in time-consuming normal litigation process when the funds have been blocked in the unproductive assets. Speedy recovery of such assets is critical for the successful implementation of financial reforms. The Act by setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery aimed at the successful implementation of the financial sector reforms. An urgent need was felt to work out a suitable and speedy mechanism through which the dues to the banks and financial institutions could be realized without delay.
Recovery of Debts Due to Bank and Financial Institutions Act, 1993 - Sections 30 and 20(3) - Limitation Act, 1963, Section 5 - Condonation of delay in filing appeal. Delay in filing appeal against order of Recovery Officer, to DRAT, cannot be condoned by DRAT as Section 5 of Limitation Act not attracted to it.
Section 30 (which is an exception to Section 29) of the Recovery of Debts Due to Banks and Financial Institutions Act provides for an appeal against the order of Recovery officer within 30 days from the date the copy of the order of the Recovery officer is issued to an aggrieved person who wants to prefer appeal to the Tribunal and when there is no provision made for condonation of delay the Court/Tribunal cannot have power to condone delay in absence of such specific provision because the power of the Court flows from provision of the relevant special statute.
If the relevant special statute provides for the specific period of limitation to prefer appeal without any specific provision for the Court to condone delay, then inherent power of the Court to condone delay under the General law i.e. Limitation Act, 1963 cannot apply and delay cannot be condoned on the ground of enquiry and hardship. Order of the Recovery officer under Chapter V of the Recovery of Debts Due to Banks and Financial Institutions Act would become absolute and binding, if no appeal is preferred within specified limitation of 30 days as provided for under Section 30 of the Act.
A.P. BHANGALE, J
1. Taken up for hearing by consent of learned Advocates appearing. Heard submissions. This Writ Petition is preferred in respect of an order dated 5th January 2011 passed by Debts Recovery appellate Tribunal, Mumbai and an order dated 17th March 2009 passed by Debts Recovery Tribunal, Nagpur whereby it is held that the provisions of Limitation Act are applicable to an appeal under Section 30 of the Recovery of Debts Due to Banks and financial Institutions Act (Briefly referred as RDDBFI Act). The question raised is as to whether the provisions of section 5 of the Limitation Act or its principles are applicable to appeal filed under section 30 of the RDDBFI Act.
2. The facts which gave rise to filing of the writ petition may be summed as under:
The Petitioners are owners of Apartments in the building known as ‘Jupiter Complex’ Situated at Vaishali Nagar, Binaki, Nagpur. The Petitioners claim that they were handed over possession of their respective apartments in the building pursuant to an agreement for sale of undivided share in the land and building construction executed in the year 1987.The respondent Central Bank of India , on the ground that the borrower had executed the mortgage of the plot along with the structure of the open foundation in its favour on 14/05/1997 to enforce recovery certificate had put the property for sale through DRT , Nagpur The Petitioners on or about 3/3/2004 filed an application/objection under Rule 11 and 15 of the second schedule of the Income Tax Act, 1961 and other enabling provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI Act) for release of attachment and cancellation of proposed Sale. On 29/03/2005 the Recovery officer, DRT Nagpur passed a common order whereby the objection of the Petitioners was accepted on the ground that the Petitioners legally possessed the Apartments much prior to the Mortgage and the so called Mortgaged property did not exist in the form of description given in the Mortgage deed .Thus it was held that the said property was not liable to be sold .The respondent bank challenged the order passed by the recovery Officer in the DRT , Nagpur by filing an Appeal under Section 30 of the RDDBFI Act along with an application for condonation of delay of 74 days in filing the Appeal with reference to section 5 of the Limitation Act. DRT, Nagpur had allowed the application for amendment of Appeal and for condonation of delay, impleading the Petitioners as respondents in the appeal as well as in the application for condonation delay in filing the Appeal. The Petitioners contested the application filed under section 5 of the Limitation Act for condonation ofDelay on the ground that section 5 of the Limitation Act is not applicable to the appeal filed under Section 30 of the RDDBFI Act and therefore no period of delay can be condoned .On 17/03/2009 the DRT, Nagpur passed an order holding that provision of section 5 of the Limitation Act is applicable to an appeal file under section 30 of the RDDBFI Act. Upon challenge the DRAT, Mumbai upheld the order passed by the DRT, Nagpur, on the ground that the definition of the term “application” provided in the Rules, which includes an Appeal under Section 30, can be considered even though the “application” defined by the Act defines it as an Application under Section 19 i.e. original proceedings (and not an appeal under Section 30 of the RDDBFI Act).
3. It is contended on behalf of the Petitioners that the impugned Judgment is contrary to the provisions of the RDDBFI Act as it is self contained Code providing for the remedy of Appeal as also the period of limitation within which the Appeal has to be filed. The provisions of the Limitation Act ,1963 shall apply, as far as may be, to the application made to the Tribunal .According to the Petitioners the “application” defined in Section 2 (b) of the RDDBFI Act means an application made to Tribunal under Section 19 of the RDD
