The SARFAESI Act does not provide for the applicability of the provisions of the Limitation Act to an appeal under Section 18, and therefore, the Debts Recovery Appellate Tribunal has no power to condone the delay.

K.K. SASIDHARAN, J.

Introductory:

1. The core issue raised in these batch of cases, is whether the Debts Recovery Appellate Tribunal constituted under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herienafter referred to as "SARFAESI Act") has power to condone the delay in filing second appeal under Section 18 of the SARFAESI Act.

Lead case:

2. Since the principal question is one and the same in all these writ petitions, W.P.No.13456 of 2012 is taken as the lead case to narrate the relevant facts.

W.P.No.13456 of 2012

3. The petitioners were the Directors of a Company by name Kohinoor Steel Private Limited. The petitioners were also the partners in a firm called "Varsha Metals". M/s. Kohinoor Steel Private Limited availed financial assistance from Union Bank of India, Bangalore. Since the unit failed to clear the loan outstanding, the Bank initiated proceedings under the SARFAESI Act. Notice under Section 13(2) of the SARFAESI Act was issued on 23 December 2008, followed by a possession notice issued on 28 February, 2009. The Bank thereafter issued a sale notice on 18 January 2010 proposing to sell the secured assets on 20 February 2010.

4. The sale notice dated 18 January 2010 was challenged by the petitioners before the Debts Recovery Tribunal (hereinafter referred to as "Tribunal"), Bangalore in S.A.No.131 of 2010. The appeal was dismissed on 13 May 2010.

5. The order dated 13 May 2010 was challenged by the petitioners before the Debts Recovery Appellate Tribunal (hereinafter referred to as "Appellate Tribunal"), Chennai belatedly. There was a delay of six days in preferring the appeal and this made the petitioners to file an application before the Appellate Tribunal to condone the delay.

6. The Appellate Tribunal was of the view that it has no jurisdiction to condone the delay. According to the Appellate Tribunal, the High Court of Madhya Pradesh has already made the position clear that SARFAESI Act does not contain a provision conferring power on the Appellate Tribunal to condone the delay in filing an appeal under Section 18 of the Act. The application was accordingly dismissed. The said order dated 3 May 2010 in I.A.No.1220 of 2010 is challenged in this writ petition.

7. The applications preferred by the petitioners in other writ petitions were also dismissed solely on the ground that the Appellate Tribunal has no power to condone the delay.

Rival Contentions:

8. Mr.K.M. Vijayan, learned Senior Counsel for the petitioner in W.P.No.8099 of 2012 made elaborate submissions with respect to the applicability of the provisions of the Limitation Act to an appeal preferred before the Appellate Tribunal under Section 18 of the SARFAESI Act. The substantial contentions are as follows:

(i) The SARFAESI Act has not expressly excluded the provisions of the Limitation Act.

(ii) Section 29(2) of the Limitation Act would attract in case two requirements are satisfied by the authority invoking the said provision viz.,

(a) There must be a provision for a period of limitation under any special or local law in connection with any suit, appeal or application and

(b) The prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act.

If the above two requirements are satisfied, the consequences contemplated by Section 29(2) would automatically follow.

(iii) In case the two primary requirements are satisfied, Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed under the Schedule to the Limitation Act.

(iv) For determining any period of limitation prescribed by special or local law for a suit, appeal or application all the provisions under Sections 4 to 24 of the Limitation Act would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.

(v) SARFAESI