ORDER :

(Sheel Nagu, J.)

This petition filed under Article 227 of Constitution of India invoking supervisory jurisdiction of this Court, assails final order dated 02.09.2023 (Annexure-P/9) passed in S.A. No.806/2022 by Debt Recovery Tribunal, Jabalpur (for brevity “DRT”) dismissing the said SA filed u/S.17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity “SARFAESI Act”) for being barred by limitation, having been filed beyond the period of 45 days stipulated in Section 17(1) of SARFAESI Act.

2. Learned counsel for rival parties are heard extensively on the short question as to whether benefit of provisions of Limitation Act, in particular Section 5, are available in respect of an application preferred u/S.17(1) of the SARFAESI Act or not ?

3. The judgments of Apex Court as well as various High Courts have been cited for and against the said question.

4. Short facts giving rise to the present dispute are that petitioner on 16.09.2022 filed an application (S.A. No.806/2022) u/S.17(1) of SARFAESI Act assailing demand notice, possession notice and auction notice issued in respect of the secured assets in question.

4.1 Along with the aforesaid S.A. No.806/2022, petitioner had moved an application u/S 5 of Limitation Act seeking condonation of delay in preferring the same. Delay sought to be condoned was of 46 days.

4.2 DRT by the impugned order dismissed S.A. No.806/2022 for being time barred. It was held by DRT that an application u/S.17 is in the nature of suit and, therefore, the provisions of Section 5 of Limitation Act are inapplicable. Thus, by relying upon Apex Court’s decision in the case of Bank of Baroda & Another Vs. M/s Parasaadilal Tursiram Sheetgrah Pvt. Ltd. and Ors. (C.A. No.5240/2022) judgment dated 11.08.2022, DRT declined to interfere.

5. The Apex Court in Bank of Baroda (supra) did not decide the question which is posed herein. Instead, Apex Court was required to answer the question as to whether High Court of Allahabad was correct in staying the order of DRAT which had set aside the order of DRT passed in review jurisdiction. DRT had allowed the review application on the ground that one of the Directors of the Company had expired on 18.09.2012 which was before the date of auction, without his legal representative being noticed. Relevant paragraphs 8, 9 & 14 of the said judgment in the case of Bank of Baroda (supra) are explicit about the issue therein. Relevant extracts are reproduced hereinbelow :

“8.The above referred order was challenged in review. The DRT by its order dated 08.08.2016 allowed the review on the ground that Shri Rakesh Sharma had expired before the auction had taken place and that his legal representatives were not issued notice. It is rather strange that the DRT not only entertained the Review Petition, but has allowed the same on the aforesaid ground.

9. The order in review was challenged before the DRAT, which found no difficulty in allowing the appeal on the ground that there has never been an error apparent on the face of record for exercising the review jurisdiction. It is this order of DRAT that was challenged before the High Court in the Writ Petition filed by the Company, its Directors and also the legal representatives of the deceased Director. This very same ground was raised, that one of the Directors had expired and that his legal representatives were not given notice before the secured asset was brought to sale.

14. For the reasons stated above, we are of the opinion that the High Court was not justified in staying the operation of the order of the DRAT which came to the conclusion that there was no error apparent on the face of record for the DRT to invoke the review jurisdiction and recall its order dismissing the application under Section 17 of the Act.”

5.1 From the aforesaid, it is evident that the issue of applicability of provisions of Limitation Act to an application u/S.17 of SARFAESI Act were not under consid