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2013 Supreme(P&H) 346
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Ms. Justice Ritu Bahri
C.W.P.No.22567 of 2011 (O&M)
Surinder Mahajan
v.
Debts Recovery Appellate Tribunal & Ors.
{Decided on 05/04/2013}
Subject
Limitation - APPLICABILITY
Act Referred
SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT : S.17, S.18
Headnote
Limitation Act, 1963, S.5--Condonation of delay in filing appeal--In the absence of any provision under the Act excluding the applicability of the Limitation Act to the proceedings before the Debt Recovery Tribunal under Section 17 or before the Debt Recovery Appellate Tribunal under Section 18 of the Act, an application for condonation of delay would be maintainable before the Tribunal and the Appellate Tribunal--Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, S.17 & 18.
Therefore, we respectfully agree with the view of the Andhra Pradesh and Bombay High Court and unable to agree with the view expressed by Calcutta High Court.
In view of the above, we hold that:
(i) The remedy provided to any person including a borrower under Section 17 of the Act is in response to the actions and measures taken by the secured creditor through an application which is in the nature of objections to the action taken by the secured creditor.
(ii) The provisions of Sections 4 to 24 of the Limitation Act are applicable to the proceedings to be initiated by any person aggrieved including a borrower before the Debt Recovery Tribunal under Section 17 of the Act.
(iii) The provisions of Sections 4 to 24 of the Limitation Act are applicable to an appeal to be preferred against an order passed by the Debt Recovery Tribunal before the Debt Recovery Appellate Tribunal under Section 18 of the Act.
(iv) Whether sufficient cause is disclosed to seek condonation of delay, is a question of fact to be determined by the Debt Recovery Tribunal and/or the Debt Recovery Appellate Tribunal in the facts of each case. (Para 34)
For the Petitioner:Mr. Pankaj Gupta, Advocate.
For the Respondents No.3 & 4:Mr. G.S.Anand, Advocate.
For the Respondent No.5: Ms. Radhika Suri, Addl. AG, Punjab.
For the Respondents No.6 & 7:Mr. S.D.Bansal, Advocate.
Mr. Hemant Gupta, J.:- This order shall dispose of aforesaid writ petitions raising identical issues in respect of power to condone delay by the Debt Recovery Tribunal (for short ‘the Tribunal’) or the Debt Recovery Appellate Tribunal (for short ‘the Appellate Tribunal’) in filing applications under Section 17 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) or an appeal under Section 18 of the Act.
2. In CWP No.22567 of 2011, an appeal preferred by the petitioner before the Appellate Tribunal was dismissed relying upon the judgment of Madhya Pradesh High Court in M/s Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & others Vs. State Bank of India & others AIR 2011 MP 205 that there is no power with the Appellate Tribunal to condone delay in filing of an appeal. However, in CWP No.17894 of 2011 an application under Section 17 of the Act was dismissed being barred by 143 days of delay. Appeal against the said order has also been dismissed again relying upon the judgment of Madhya Pradesh High Court in M/s Seth Banshidhar Kedia Rice Mills Pvt. Ltd. case (supra).
3. Since the question is purely legal, certain provisions of the Statutes i.e. The Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (for short the 1993 Act) and The Limitation Act, 1963 need to be extracted at this stage. The same are as under:
The Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
17. Right to appeal - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within fortyfive days from the date on which such measure had been taken:
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(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.
xx xx xx
(5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application:
(6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any part to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.
(7) Save as o therwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder.
18. Appeal to Appellate Tribunal - (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal alongwith such fee, as may be prescribed to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal:
PROVIDED that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:
PROVIDED FURTHER that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whi
