IMPORTANT POINT
Section 5 of Limitation Act only applies to appeals and applications and not to a suit.

Indira Banerjee, J.—In this writ petition, the petitioners have challenged an order dated 6th October, 2015, passed by the learned Debt Recovery Appellate Tribunal dismissing Appeal No.373/2015, filed by the petitioners, thereby affirming an order dated 6th August, 2015, passed by the learned Debt Recovery Tribunal, dismissing the counter claim filed by the petitioners against the claim of the respondent-Bank only on the ground that the same was barred by limitation.

2. The respondent, HDFC Bank, (hereinafter referred to as HDFC Bank) instituted an original application No.39/2010 against the petitioner in the learned Debt Recovery Tribunal-III Delhi, for recovery of Rs.2,46,55,277.27 along with interest and costs from the petitioners. By an order dated 31st May, 2012, the learned Debt Recovery Tribunal III Delhi, closed the rights of the petitioners to file written statement and directed HDFC Bank to file ex parte evidence. The matter was directed to be listed before the Registrar on 2nd November, 2012, for filing evidence and exhibiting the documents.

3. On or about 6th May, 2014, the petitioners filed an application, praying for leave to file the written statement and counter claim out of time.

4. By an order dated 21st May, 2015, the learned Debt Recovery Tribunal III allowed the said application and took the written statement filed by the petitioners on record, subject to payment of costs of Rs.2500/-.

5. Aggrieved by the said order dated 21st May, 2015, HDFC Bank filed an appeal being Miscellaneous Appeal No.198/2015 therefrom, before the Debt Recovery Appellate Tribunal, Delhi.

6. By an order dated 6th August, 2015, the learned Appellate Tribunal disposed of the appeal, holding that the written statement would be taken on record, subject to payment of additional costs of Rs.25000/- and that the learned Tribunal would adjudicate whether the counter claim, filed by the petitioners, could be entertained.

7. By an order dated 6th October, 2015, the counter claim filed by the petitioners was dismissed on the ground that the same was barred by limitation.

8. The petitioners filed an appeal being Appeal No.373/2015, against the aforesaid order of the learned Tribunal, which has been dismissed by the impugned order of the Debt Recovery Appellate Tribunal.

9. Mr.Poddar appearing on behalf of the petitioners rightly submitted that a counter claim under Section 19 (8) of the Recovery of Debts Due to Banks and Financial Institutions Act 1993, (hereinafter referred to as the DRT Act) had to relate to cause of action, which had arisen before the filing of the original application, or before the filing of the written statement, on or before the last date fixed for defence of the respondent, Mr. Poddar also argued rightly that under Section 19 (9) of the DRT Act a counter claim had to be treated as a cross suit and tried along with the original application, so that all controversies and disputes could be settled in the same proceedings.

10. Mr. Poddar also argued, rightly that the Court had the discretion to permit a written statement including a written statement containing a counter claim to be filed belatedly, by condoning the delay in filing the written statement.

11. Mr. Poddar argued that in this case, though the petitioners had been permitted to file their written statement belatedly, their counter claim, which is part and parcel of their written statement was erroneously not entertained, on the ground that the same was barred by limitation.

12. Mr. Poddar argued that the cause of action, for which the counter claim was filed had arisen before the original application was filed by HDFC Bank, and in any case, before delivery of defence. He argued that the learned Debt Recovery Tribunal had the jurisdiction and power to condone the delay in filing an application under Section 19 of the DRT Act as well as a written statement, in view of Section 24 read with Section 2(b) of the DRT Act. The time for filing the written statem