The DRT has the authority to condone delays in applications under Section 17 of the SARFAESI Act, applying the Limitation Act provisions.

JUDGMENT :

VIJAY BISHNOI, C.J.

1. Heard Mr. S. Mitra, learned counsel for the petitioners. Also heard Mr. K.K. Nandi, learned counsel appearing for all the respondents.

2. The petitioner No. 1 herein is a proprietorship firm, which is represented by its sole Proprietor Smti. Anju Barua, i.e. the petitioner No. 2. They have preferred this writ petition challenging the notice dated 19.05.2023 issued by the respondent Bank under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as “SARFAESI Act”) and the subsequent notices dated 25.07.2023 and 05.08.2023 issued by the respondent Bank under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (hereinafter to be referred as “Rules of 2002”). The petitioner’s loan account was declared as a Non-Performing Asset (NPA) on 28.02.2023.

3. Initially the petitioners have challenged the action of the respondent Bank by way of filing an application under Section 17(1) of the SARFAESI Act before the Debts Recovery Akshat Commercial Private Tribunal, Guwahati Bench, Guwahati (hereinafter to be referred as “DRT”). However, the said application came to be dismissed vide order dated 20.11.2023 primarily on the ground that the same was barred by limitation as per the provisions of Section 17 of the SARFAESI Act. The request made on behalf of the petitioners to condone the delay of 19 days, though DRT had calculated it as 23 days, was turned down by the DRT mainly by relying on the decision rendered by a Division Bench of the High Court of Calcutta in Akshat Commercial Private Limited & Anr. Vs. Kalpana Chakraborty & Ors. AIR 2010 Cal 138 as well as the order dated 11.08.2022 passed by the Hon’ble Supreme Court in Civil Appeal No. 5240/2022 (Bank of Baroda & Anr. Vs. M/s Parasaadilal Tursiram Sheetgrah Private Limited & Ors.) while holding that the statutory time period of 45 days provided under Section 17(1) of the SARFAESI Act is mandatory and no discretion has been conferred upon the DRT to extend such period. The order dated 20.11.2023 as such is not under challenge in this writ petition and the petitioner No. 2 has claimed that she has not challenged the order passed by the DRT before the Debts Recovery Appellate Tribunal, Kolkata by filing an appeal under Section 18 of the SARFAESI Act as it may not yield favourable result due to the judgment passed by the High Court of Calcutta in Limited (supra).

4. Be that as it may, though the order passed by the DRT is not under challenge in this writ petition but the question that arises in this writ petition is whether the DRT can condone the delay in filing an application under Section 17(1) of the SARFAESI Act preferred on behalf of a borrower by giving the benefit of the provisions of the Limitation Act, 1963. Therefore, we proceed to answer this question after taking into consideration the arguments advanced on behalf of the parties.

5. Mr. S. Mitra, learned counsel for the petitioners has argued that the DRT can extend the benefit of the provisions of the Limitation Act while entertaining an application under Section 17 of the SARFAESI Act. It is argued that an application under Section 17 can be preferred by any person including the borrower aggrieved by any measure referred to in sub-section (4) of Section 13 of the SARFAESI Act, within 45 days from the date on which such measures is taken by the secured creditor. Referring to sub-section (7) of Section 17 of the SARFAESI Act, learned counsel for the petitioners has argued that as per sub-section (7) of Section 17, the DRT is obliged to dispose of the application preferred under Section 17 of the SARFAESI Act in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (now Recovery of Debts and Bankruptcy Act, 1993) (hereinafter to be referred as “RDB Act”). It is contended that under Section 19 of the RDB Act, a Bank or financial institution can