The main legal point established in the judgment is that the Debts Recovery Appellate Tribunal does not have the power to condone the delay in filing an appeal under section 18 of the SARFAESI Act.

Ajit Singh, J. In this petition an important question which calls for determination is whether the Debts Recovery Appellate Tribunal has power to condone the delay in filing of appeal before it under section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short the SARFAESI Act

2. Petitioner No.1 is a Company registered under the provisions of the Companies Act. Petitioner Nos. 2, 3 and 5 have been the Directors of the Company from time to time. Petitioner No. 5 is alleged to have signed personal guarantee along with petitioner Nos. 2,3 and 4. Petitioner Nos. 2, 4 and 5 are said to have mortgaged their immovable properties in favour of respondent State Bank of India which provided financial assistance to petitioner No. 1 for establishing an automatic rice milling plant. The respondent Bank initiated recovery proceedings against the petitioner under the provisions of the SARFAESI Act vide demand notice dated 5.5.2009. On receiving the demand notice the petitioners submitted a detailed representation on 8.7.2009 to the Bank which was decided vide order dated 16.7.2009 and demand was modified. On 17.7.2009, the petitioners submitted another representation which was decided by the Bank vide order dated 21.8.2009. The Bank then took the possession of the mortgaged properties on 30.4.2010 by taking recourse to one of the measures enumerated in section 13(4) of the SARFAESI Act.

3. Aggrieved with the action taken, the petitioners filed SA No.87/2010 under section 17 of the SARFAESI Act before the Debts Recovery Tribunal, Jabalpur (in short the Tribunal). They also separately filed an application for staying the auction of the mortgaged properties which was scheduled for 29.7.2010 but it was dismissed by the Tribunal vide order dated 28.7.2010.

4. Against the order dated 28.7.2010 the petitioners filed an appeal SR No.97/2010 on 1.9.2010 under section 18 of the SARFAESI Act before the Debts Recovery Appellate Tribunal, Allahabad (in short the Appellate Tribunal). They filed an application under section 5 of the Limitation Act seeking condonation of delay of 2 days because the appeal was not filed within the prescribed period of 30 days from the date of receipt of the copy of order of the Tribunal. It appears that the auction of the mortgaged properties could not materialize on 29.7.2010 and a fresh auction was scheduled for 22.9.2010. The Appellate Tribunal, after considering the application for stay filed by the petitioners, passed an interim order dated 20.10.2010 to the effect that auction may go on but the sale shall not be confirmed. The Bank thereupon raised a preliminary objection in the appeal that the Appellate Tribunal had no jurisdiction to extend the period of limitation by condoning the delay. The Appellate Tribunal, relying upon its two earlier decisions in Misuki Exports Pvt. Ltd. v. State Bank of India III (2008) BC 51 (DRAT) and State Bank of India v. Sudarshan Doors (P) Ltd. II (2008) BC 72 (DRAT), by order dated 21.1.2011 dismissed the appeal on the ground it had no power to condone the delay. It is against the order dated 21.1.2011 the petitioners have filed the present petition.

5. The learned counsel for petitioners argued that the provisions of the SARFAESI Act do not exclude either expressly or impliedly the application of the provisions of the Limitation Act, 1963 and, therefore, the Appellate Tribunal had full powers under section 29(2) of the Limitation Act, to consider on merits the question of condonation of delay in filing appeal as per section 5 of the Limitation Act. In support of his argument the learned counsel relied upon a decision of the Bombay High Court in UCO Bank v. Kanji Manji Kothari 2008 (4) Mh LJ 424 and also a decision dated 9.2.2009 of the Madras High Court in Punnu Swami v. The Debts Recovery Tribunal 2009 (3) BJ 401. In these decisions both Bombay High Court and Madras High Court have taken a view that section 5