O R D E R

1. This Appeal is against Order dated 06.08.2022 in TSA 118/2016 (SA 187/2010) of DRT-II, Ernakulam. 2. Brief facts leading to this Appeal are as follows:-

Appellant herein filed SA 187/2010 before DRT, Ernakulam, and subsequently, on establishment of another DRT, SA is transferred to DRT-II, Ernakulam, which is renumbered as TSA 118/2016. Appellant challenged Sale Certificate dated 11.09.2009 issued by Respondent No.2 in favour of 5th Respondent, contending that he purchased the property from 3rd Respondent herein through a registered Sale Deed and Bank has no right to sell said property.

Respondent No.1 and 2 Bank opposed said Application contending that property is mortgaged in favour of Bank on 21.05.1998 by deposit of original title deeds, and Sale Deed in favour of Appellant, is of year 2005, therefore, Sale, if any, shall be subject to mortgage, and Bank has right to proceed under SARFAESI Act, 2002. Bank also contended that the Securitisation Application, as filed, is not maintainable, and it is also time barred.

Tribunal below, on a consideration of contentions and rival contentions of both parties, framed as many as four points, and decided them against Appellant, consequently dismissed the Application; aggrieved by which present Appeal is preferred.

3. Both Appellant and Respondent Nos. 1 and 2 Bank filed their Written Arguments and reiterated the same at the time of oral submissions.

4. Advocate for Appellant submitted that right to initiate proceedings under Section 17 of SARFAESI Act, 2002, commences either from the date of taking measures or from the date of knowledge of such measures, and SA is filed within 45 days from the date of knowledge, but, Tribunal below failed to appreciate the same, and held that, it is barred by limitation. It is submitted that said finding is not correct. He further submitted that Respondents have colluded together to take away property of Appellant through provisions of SARFAESI Act, 2002, and it is nothing but a gross abuse of power by Respondent Bank, and it amounts to fraud. It is further submitted that Tribunal below decided the matter arbitrarily without proper application of mind. He submitted that Tribunal below failed to observe that Appellant had no direct knowledge about SARFAESI proceedings, and only after coming to know about Sale Certificate, SARFAESI Application is filed, within 8 days. It is further submitted that findings of Tribunal below are not legal, they cannot be sustained, and Appeal has to be allowed.

5. On the other hand, Advocate for Respondent Nos. 1 and 2 Bank submitted that, the Securitisation Application filed under Section 17 (1) of SARFAESI Act, 2002, is beyond 45 days even from the date of issuance of Sale Certificate, and on this ground alone, the Appeal has to be rejected. He further submitted that it is settled law that Section 5 of Limitation Act, 1963, has no application to the Application filed under SARFAESI Act, 2002, which is also held by this Tribunal in MA (SA) 32/2021, relying on the judgement of Division Bench of Hon’ble High Court of Madras and Judgement of Hon’ble Supreme Court. He further submitted, Civil Suits are pending in respect of claim of Appellant. He further submitted that 3^rd Respondent herein filed Writ Petition before Hon’ble High Court of Kerala challenging the SARFAESI proceedings, so also, Respondent No.4 herein filed Writ Petition, and Hon’ble High Court, by Order dated 20.07.2009, directed first Respondent herein, i.e., Bank, to consider the representation of 3rd Respondent, and in compliance of Order of Hon’ble High Court, one property was sold by private sale to 5^th Respondent herein, and issued Sale Certificate in compliance of SARFAESI Act and Enforcement Rules, 2002. It is submitted, the Appeal is devoid of merits and liable to be dismissed.

6. I have perused the material papers and impugned Order dated 06.08.2022.

7. In Written Arguments filed on behalf of Appellant, it is stated that fraud is committed, Re