CAV JUDGMENT :

Petitioner in the present case is an auction purchaser of a property which was subjected to a proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act 2002’). He is challenging the order dated 22.09.2017 passed by learned Presiding Officer, Debts Recovery Tribunal, Patna (hereinafter referred to as the ‘Tribunal’) in SARFAESI Application no.44 of 2017 as contained in Annexure- ‘7’ to the writ application. By the impugned order, the learned Tribunal has been pleased to reject the preliminary objection taken by the respondent bank that the SARFAESI application is hopelessly barred by limitation. It was contended on behalf of the bank that the limitation petition has been filed by the applicant after filing of the SARFAESI application which is contrary to the order dated 04.02.2017 passed by the Hon’ble High Court in CWJC No.15510 of 2015. The petitioner has however raised a wider issue by taking a plea that the Debts Recovery Tribunal (‘DRT’) while entertaining an application under Section 17(1) of the Act of 2002 has no power to condone the delay.

Brief Facts

It is the case of the petitioner before this Court that he had purchased a portion of the land of plot no.172 and portion of plot no. 169 under khata no. 570, Tauzi no.814, Thana no.12, total area 6-3/8 decimal situated at Mauza-Kumhrar, P.S.-Sultanganj, District Patna in the auction sale for consideration of Rs.21,35,000/-. The bank accepted the offer of the petitioner and directed him to deposit 25% of the bid amount after adjusting the earnest money deposit of Rs.98,000/-. The petitioner deposited Rs.4,36,000/- in cash with the respondent-bank on 28.06.2011 and thereafter he deposited balance amount of Rs.16,01,000/- through two bank drafts, thereby he deposited the entire consideration amount of Rs.21,35,000/- on time.

It is his further case that even after deposit of the entire amount when he was not getting the possession of the property, he filed CWJC No.19421/12 with a prayer to direct the bank to deliver actual physical possession over the property. By the order dated 10.12.2013 (Annexure-1) the Court fixed 13th December, 2013 for taking over possession of the property and handing it over to the bank officials. The petitioner claims to have constructed boundary wall, room etc. on the said property. It is alleged that there had been some collusion which led to filing of two SARFAESI appeals by two different persons namely Tapeshwari Devi who filed SARFAESI appeal no.13 of 2014 in which the learned tribunal has passed the order dated 05.05.2014 which is subject matter of appeal at the instance of the petitioner before the appellate tribunal at Allahabad being Appeal no.212/14 which is still pending. In appeal no.13/14 it was claimed by Tapeshwari Devi that plot no.169 belongs to her and it was wrongly mortgaged to the bank and another SARFAESI Appeal No.101/14 was filed by one Ramashish Singh on the ground that plot no.172 belongs to him and the respondent no.3 has played a fraud by mortgaging it to the bank. SARFAESI Appeal no.101/14 came to be dismissed by the learned Tribunal vide order as contained in Annexure- ‘2’ to the writ application.

The respondent no.3 came to this Court in CWJC No.15510 of 2015 stating that no notice under Section 13(2) of the SARFAESI Act, 2002 was served upon him. It is the case of the petitioner that the respondent no.3 had full knowledge of the proceeding under the SARFAESI Act, 2002 but he chose to file writ petition on 11.09.2015 after a lapse of about ten months from the date of expiry of 45 days period which is prescribed period of limitation for filing SARFAESI application under sub-section (1) of Section 17 of the SARFAESI Act, 2002. Annexure-4 dated 24.10.2014 to the writ application is an application submitted by respondent no.3 before the Certificate Officer, Patna City in Certificate Case No.117/200