Attitude of the Bank was to make the petitioner remediless

S.J. Mukhopadhaya, J.

This Writ Appeal has been preferred by the appellant-Indian Overseas Bank against the order of this Court dated 30.1.2008 in Writ Petition No.1069 of 2008.

2. In the said case, while the learned single Judge refused to interfere with the notice issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act) and taking into consideration the order passed by the appellant-Bank, the learned single Judge allowed the respondent-Writ Petitioner to approach the Debts Recovery Tribunal within two weeks from the date of the order and till such time the appellant-Bank was directed to maintain the position as on the date of the order passed in the Writ Petition. It was also made clear by the learned single Judge that the respondent-Writ Petitioner shall not take advantage of the order in any of the proceedings and shall strictly adhere to the time stipulated by the Court.

3. The Writ Appeal has been preferred by the Bank on the ground that the High Court, in exercise of its powers under Article 226 of the Constitution of India, has no power to extend the period of limitation.

4. Learned counsel appearing for the appellant-Bank submitted that the possession of the secured asset was taken on 111. 2007 and under Section 17 of the SARFAESI Act, the said measure has to be challenged within a period of 45 days from the date of such measure. As such, the period of limitation for filing the application expired on 212. 2007. The Writ Petition in question was in fact filed on 1. 2008, i.e. beyond the period of limitation. Therefore, the Writ Petition itself was filed after the expiry of the period of limitation provided under the SARFAESI Act and hence, exclusion of the period spent before the wrong forum does not arise in this case. Further argument was also made with regard to the stand as was taken by the respondent/Writ Petitioner and it was submitted that the mortgage over the secured asset was created on 111. 1991, which was periodically extended. The action initiated by the secured creditor by demand notice dated 28. 2007 is well within the period of limitation.

5. Learned counsel appearing for the appellant-Bank also relied on the decision of the Supreme Court reported in AIR 2004 SC 2371 (Mardia Chemicals Ltd. vs. Union of India), wherein the Supreme Court observed as follows:

"59. We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact that it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in Civil Court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. ...."

Reliance was also placed on a decision of the Division Bench of this Court reported in 2007 (3)CTC 389 (Muthammal Transports vs. P. Swathanthirarajan), wherein, the Division Bench of this Court held that the High Court exercising jurisdiction under Article 226 of the Constitution of India, has no power to extend the period of limitation and could not direct the authority concerned to consider the matter on merits without applying the limitation period.

6. We have heard the learned counsel appearing for the appellant-Bank at the stage of the admission of the Writ Appeal and perused the impugned order of the learned single Judge and other records.

.7. It is not in dispute that the respondent-Writ Petitioner has challenged the possession notice dated 111. 2007, as communicated, vide letter dated 111. 2007, bearing Reference No.ARMB/254/2007-08 of the appellant-Bank. He also prayed for an order of interim injunction restraining the respondent ther