The initiation of a mortgage suit in a civil court constitutes a valid claim that preserves the creditor's right to enforce security, preventing the limitation period from expiring. Transferring such proceedings to a tribunal does not alter the substantive nature of the mortgage-based claim.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. In this Application, UCO Bank has assailed an order dated March 30, 2017 passed by the Debts Recovery Appellate Tribunal at Calcutta(in short DRAT) in Appeal No. 442 of 2013 arising out of SA No. 722 of 2011. By the said order, DRAT dismissed the bank’s appeal and affirmed the order of the Debts Recovery Tribunal, Kolkata(in short DRT) dated November 7, 2013, by which he allowed opposite party no. 1’s application filed under section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(in short SARFAESI Act of 2002). Said application under section 17 was filed challenging a notice under section 13(2) dated April 26, 2010 and a possession cum sale notice dated July 29, 2010 issued by the Bank.

2. While answering the question as to whether notice under section 13(2) was issued in accordance with SARFAESI Act of 2002 or not, DRT held that the bank failed to establish that its mortgage right/security interest was not time barred under Article 62 of the Limitation Act 1963(in short Act of 1963) either before the mortgage suit was filed or before the notice under section 13(2) was issued and it was held that the notice was not in accordance with the provision of the SARFAESI Act of 2002 and the bank is not entitled to initiate action under the SARFAESI Act of 2002 for enforcement of mortgage, since the claim of the bank is time barred, within the meaning of Section 36 of the Act of 2002 read with Article 62 of the Act of 1963.

3. The DRT further set aside the possession cum sale notice dated July 29, 2011 including the sale conducted by the authorized officer of the bank in furtherance to such notice. The bank was directed to refund the sale price along with interest applicable to term deposits to the purchaser within a period of 45 days of the order, subject to the purchaser joining with the defendant/bank in cancelling the conveyance deed.

4. Aforesaid order of the DRT was challenged before DRAT in an appeal filed by the bank, which was dismissed by the impugned order dated 30th March, 2017.

5. Being aggrieved by the aforesaid orders learned counsel for the petitioner Mr. Roy submits that the bank instituted a suit in the Barasat Court on February 29, 1992. The suit was for enforcement of mortgage under the provision of Order XXXIV of CPC. The petitioner herein as plaintiff claimed for a declaration that the suit properties being the immovable properties described in scheduled II of the plaint remain mortgaged to the plaintiff as security for payment of the plaintiff’s claim. The petitioner herein also claimed decree under Order XXXIV, Rule 4 of CPC in respect of the mortgaged/scheduled mentioned properties. The averments in the plaint clearly demonstrates that the petitioner relied upon the balance sheet as on June 30, 1988, signed by the first defendant and in the said balance sheet, the claims of the petitioners have been acknowledged and admitted within the period of limitation and such suit was for enforcement of mortgage but both the DRT and DRAT failed to appreciate the factum of institution of suit under order XXXIV of CPC within the period of limitation, which has a direct bearing on the secured creditor’s right to take all or any of the measures under Section 13 and more particularl