THE APPELLATE TRIBUNAL :

Instant appeal has arisen against the order dated 10.01.2019 passed by learned DRT, Cuttack in M.A. No. 1162 of 2017 arising out of Dy. No. 745 of 2017 whereby M.A. 1162 of 2017 was allowed and the delay in filing the SARFAESI application was condoned. Further, Registry was directed to register the S.A. and list the matter on 17.01.2019 which was registered as SA No.03 of 2019. Feeling aggrieved the appellant who is the successful auction purchaser, respondent no.3 in the S.A., preferred the appeal.

2. As per pleadings of the party the appellant herein namely, Nawal Kumar Agarwal, is a successful auction purchaser in respect of the land and factory put to sell by the respondent no.1 namely, State Bank of India, u/s 13(4) of the SARFAESI Act, 2002 (hereinafter referred to as ‘the Act’) on 20.05.2014. He was declared highest bidder who deposited the bid amount of Rs.1,34,50,000/- and sale certificate was issued in favour of him on 01.08.2014. Possession was also delivered on 18.08.2014. Respondent no.2 herein, Sri Manoj Kumar Dash, Managing Director of M/s. Kamyab Exports Pvt. Ltd. had filed the application u/s 17 of the Act before the learned DRT, Cuttack with the prayer to cancel the sale deeds and sale certificates and redeem the property in his favour. SARFAESI application was moved inter alia with an application for condonation of delay on the ground that he had no knowledge of the notices issued u/s 13(2) and 13(4) of the Act and thereafter he could not arrange fund for moving the application. He was taken into judicial custody on 14.09.2014 and released on 23.11.2016. After releasing from the judicial custody, he preferred the S.A. along with the M.A. for condonation of delay.

3. The application was opposed by the bank as well as by the appellant herein on the ground that application u/s 17 of the Act has to be filed within 45 days as prescribed under the Act and there is no provision for calculating the period of limitation of 45 days from the date of knowledge. Further, it was contended that notices issued under the Act were duly served and were also published in two leading newspapers. Auction was also conducted in accordance with law. Sale proceeds was duly credited to the borrower’s loan account. Physical possession was delivered to the auction purchaser. Borrower challenged the action of the bank by preferring different writ petitions which were dismissed by the Hon’ble High Court. S.A. was barred by limitation.

4. Learned DRT Cuttack recorded the finding that the DRT has power to condone the delay in preferring an application u/s 17 of the Act. It was held that the object of providing legal remedy is to repair the damage caused by reason of legal injury. Learned DRT consequently allowed the M.A. 1162 of 2017 with the above finding and condone the delay in filing application u/s 17 of the Act.

5. Feeling aggrieved by the impugned order appellant auction purchaser preferred the appeal.

6. I have heard the learned counsel for the parties and perused the records.

7. Learned counsel for the bank as well as learned counsel for respondent no.3 have adopted the submission of the learned counsel for the appellant.

8. Learned counsel for the appellant challenged the impugned order on the ground that there was a delay of 1327 days in preferring the application u/s 17 of the Act. It is further submitted that no ground is made out in the application for condonation of delay in preferring the S.A. Application is moved on the ground that due to non-arrangement of fund for preparing demand draft even after the date of knowledge, filing of S.A. has been delayed, hence, delay may be condoned. Learned counsel submits that date of knowledge of the proceeding under the Act is not disclosed in the application for condonation of delay. It is further submitted that sale notice was issued on 12.04.2014 and auction sale was held on 20.05.2014. Sale certificate was issued on 01.08.2014. Physical possession was delivered to t