Surinder Mahajan VS Debts Recovery Appellate Tribunal

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PUNJAB AND HARYANA HIGH COURT
Hemant Gupta and Ritu Bahri, JJ.
Surinder Mahajan —Petitioner
versus
Debts Recovery Appellate Tribunal & Others Respondents
C.W.P.No.22567 of 2011 (O&M) and C.W.P.No.17894 of 2011
Decided on 05.04.2013

Important Points

IMPORTANT POINT
Provisions of Sections 4 to 24 of Limitation Act are applicable to proceedings to be initiated by any person aggrieved including a borrower before Debt Recovery Tribunal.

Subject

Judgement

Act Referred

LIMITATION ACT : S.16, S.17, S.18, S.19, S.20, S.21, S.22, S.23, S.24, S.14, S.37, S.6, S.5, S.13, S.7, S.8, S.9, S.10, S.11, S.12, S.4, S.15
SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT : S.17, S.18

Headnote

(A) Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 17 and 18—Limitation Act, 1963—Section 5—Appeal—Condonation of delay—Whether period of limitation for filing application under Section 17 or filing of appeal under Section 18 of the Act expressly or impliedly excludes applicability of provisions contained in Sections 4 to 24 of Limitation Act to such proceedings—Provisions of Sections 4 to 24 of Limitation Act are applicable to proceedings to be initiated by any person aggrieved including a borrower before Debt Recovery Tribunal under Section 17 of the Act—In absence of any provision under the Act excluding applicability of Limitation Act to proceedings before Debt Recovery Tribunal under Section 17 or before Debt Recovery Appellate Tribunal under Section 18 of the Act, application for condonation of delay would be maintainable before Tribunal—Whether sufficient cause is disclosed to seek condonation of delay, is a question of fact to be determined by Debt Recovery Tribunal and/or Debt Recovery Appellate Tribunal in facts of each case. (Paras 25, 30, 34 and 35)

(B) Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 17 and 18—Limitation Act, 1963—Section 5—Appeal—Condonation of delay—Right given to secured creditor under the Act is not a complete code—Right given to secured creditor under the Act is in addition to rights conferred on secured creditor in terms of Section 37 of the Act—Such right is in addition to many statutes including 1993 Act—Limitation Act is extended to proceedings under the Act, while treating an application to be filed under Section 19 of the Act as a suit—Inference that limitation Act stands excluded in respect of proceedings under the Act is not permissible to be drawn. (Para 33)

JUDGMENT

Hemant Gupta, J. —This order shall dispose of aforesaid writ petitions raising identical issues in respect of power to condone delay by the Debt Recovery Tribunal (for short ‘the Tribunal’) or the Debt Recovery Appellate Tribunal (for short ‘the Appellate Tribunal’) in filing applications under Section 17 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) or an appeal under Section 18 of the Act.

2. In CWP No.22567 of 2011, an appeal preferred by the petitioner before the Appellate Tribunal was dismissed relying upon the judgment of Madhya Pradesh High Court in M/s Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & others v. State Bank of India & others AIR 2011 MP 205 that there is no power with the Appellate Tribunal to condone delay in filing of an appeal. However, in CWP No.17894 of 2011 an application under Section 17 of the Act was dismissed being barred by 143 days of delay. Appeal against the said order has also been dismissed again relying upon the judgment of Madhya Pradesh High Court in M/s Seth Banshidhar Kedia Rice Mills Pvt. Ltd. case (supra).

3. Since the question is purely legal, certain provisions of the Statutes i.e. The Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (for short the 1993 Act) and The Limitation Act, 1963 need to be extracted at this stage. The same are as under:

The Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

17. Right to appeal - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within fortyfive days from the date on which such measure had been taken:

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(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.

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(5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application:

(6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any part to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.

(7) Save as o therwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder.

18. Appeal to Appellate Tribunal - (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal alongwith such fee, as may be prescribed to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal:

PROVIDED that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:

PROVIDED FURTHER that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever i