PER : HONOURABLE MR.JUSTICE JAYANT PATEL, J.

1. The present petition is directed against the order dated 17.6.2011 passed by the Presiding Officer of the Debts Recovery Tribunal-II, Ahmedabad (hereinafter referred as “the Tribunal”) whereby under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as “the Act”)the delay has been condoned by allowing the application being Misc. Application No.8 of 2011.

2. The short facts are that as per the petitioner bank, the loan was advanced to respondent No.2 and security interest was created for the property of flat being Flat No.301, Silver Colin, Bhojeshwar Plot, Porbandar (hereinafter referred as “the flat/property”). As per the petitioner bank, since the amount was not paid, the bank undertook the action under the Act for realization of security interest. The possession of the flat was taken and thereafter the same has been sold to respondent Nos.3 to 5. It appears that thereafter respondent No.1 initiated the proceedings under section 17 of the Act before the Tribunal. As there was delay in preferring the application under section 17 of the Act, the application for condonation of delay was made being Misc. Application No.8 of 2011. The Tribunal, after hearing both the sides, found that the delay deserves to be condoned since security interest is seriously in dispute. Therefore, condoned the delay by exercising discretion. Under the circumstances, the present petition before this Court.

3. We have heard Mr.Percy Kavina, learned senior counsel appearing with Mr.Jani for the petitioner, Mr.Gaurav Mehta for respondent No.1, Mr.R.P.Raval for respondent No.2, Mr.Utpal Panchal for respondent Nos.3 to 5 and Mr.Devnani for respondent No.6.

4. The only contention raised by learned counsel appearing for the petitioner in the present petition is that section 5 of the Limitation Act, 1963 (hereinafter referred as “the Limitation Act”) is not applicable to the proceedings of the application under section 17 of the Act and consequently there is no power available with the Tribunal for condonation of delay if such application is filed beyond the prescribed time limit as provided under section 17 of the Act. Therefore, the order passed by the Tribunal of condoning the delay is without jurisdiction and hence the power of this Court under Article 226/227 is invoked by the present petitioner.

5. Learned counsel for the petitioner mainly relied upon the decision of the Calcutta High Court in the case of Akshat Commercial Private Limited and another Vs. Kalpana Chakraborty and others reported at AIR 2010 Calcutta 138 and the decision of the Apex Court in the case of Om Prakash Vs. Ashwini Kumar Bassi, reported at AIR 2010 SC 3791 and it was submitted that though as such, there is already decision of this Court (learned Single Judge by one of us Jayant Patel,J) in the case of Union Bank of India Vs. Chairperson, The Debts Recovery Appellate Tribunal and 3 others, reported at AIR 2010 Gujarat 63 = 2010 GLH (1) 443 taking the view that the provisions of section 5 of the Limitation Act are applicable to the proceedings under section 17 of the Act, the matter requires a fresh look and an attempt was made to submit that this Court may take a view that section 5 of the Limitation Act is not applicable to the proceedings under section 17 of the Act and, therefore, the impugned order be struck down.

6. Whereas, learned counsel appearing for the respondents have supported the order of the Tribunal by submitting that the provisions of section 5 of the Limitation Act would be applicable and the matter is covered by the decision of this Court in the case of Union Bank of India (supra).

7. Before we further consider relevant case law on the point, we may extract certain provisions of the Act and also of the Limitation Act for considering the aspect as to whether section 5 of the Limitation Act has applicability to the proceedings under sectio