Debts Recovery Tribunals and Appellate Tribunals
Smt Tunu Rani Dutta vs INDIAN OVERSEAS BANK on 28 June 2019
**DEBTS RECOVERY TRIBUNAL-II, KOLKATA**
**Jeevan Sudha Bldg. 7th Floor, 42/C J.L.Nehru Road, Kolkata-700071**
**Before Shri Makena Srinivasa Rao, Presiding Officer**
**Token No. : 216 of 2019**
**( Arising out of SA/56/2012)**
**In the matter of -**
1. 1. Smt. Tunu Rani Dutta, wife of Sri Prafulla Kumar Dutta, Village Bahina, P.O. Mollarpur, District Birbhum – 731216
2. 2. Sri Prafulla Kumar Dutta(Guarantor), Village Bahina, P.O. Mollarpur, District Birbhum – 731216
.....Applicants
Versus
Authorized Officer, Indian Overseas Bank, Kanachi Branch, Bahna More, Post Office Mollarpur, District Birbhum – 731216
..... Respondent
For Applicant : Ms Baisakhi Singha, Advocate **Date of Order : 28.06.2019**
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**FINAL ORDER**
**(Delivered on 28<sup>th</sup> June, 2019)**
1. The Misc. Applicants have filed the present Misc. Application on 01.05.2019 under Section 17(7) read with Section 22(g) of Recovery of Debts & Bankruptcy Act read with Section 151 CPC of the SARFAESI Act against the Respondent Bank, taking limitation/cause of action from the date of knowledge of the dismissal of the SA/56/2012 on 27.03.2019, praying for recall of the order dated 19.12.2017 and restoration of the SA/56/2012 in its original file.
The Misc. Applicants have filed an application under Section 5 of the Limitation Act for condonation of delay of 491 days in filing the present Misc. Application.
2. The Tribunal vide order dated 19.12.2017 has dismissed the SA being No 56/2012 for non-prosecution. Being aggrieved by the Tribunal's order dated 19.12.2017, the Misc. Applicants have filed the present Misc. Application on 01.05.2019 under Section 17(7) read with Section 22(g) of Recovery of Debts &
*M. S. S.*
Token No. 216/2019
Bankruptcy Act. The Registry of the Tribunal has declined registration of the Misc. Application since the Misc. Application has been filed after 497 days from the date of Tribunal's order dated 19.12.2017 dismissing the SA/56/2012. Hence, the Registry has allotted a Token Number to the Application and listed the matter before the Tribunal for hearing on the point of maintainability as well as on the issue of registration of the Misc. Application.
3. The matter being Token No. 216/2019 was taken up for hearing on 18.06.2019 and was heard, and the matter has been reserved for order.
4. At the outset the issue of application of Section 5 of Limitation Act in the SARFAESI Act is taken up. As per Section 17(1) any person(including borrower) aggrieved by any of the measures under Section 13(4) of SARFAESI Act taken by the secured creditor or his authorized officer may make an application along with requisite fee within forty five days from the date on which such measures had been taken. On the point of application of Section 5 of Limitation Act in case the Section 17 application is not filed within forty five days as aforesaid, Hon'ble High Court at Calcutta in the matter of Akshat Commercial Pvt. Ltd. & another Vs Kalpana Chakraborty & others, 2010(2) DRTC 362(Cal) decided on 30.04.2010 has held the proceedings under Section 17(1) of the SARFAESI Act is like that of a suit and hence the provisions of the Limitation Act have no application to the Section 17 application, the same being the original proceedings like a suit before a Tribunal. Hon'ble High Court at Calcutta has held that the time period of forty five days provided under Section 17 of the SARFAESI Act which is original in nature cannot be extended by taking aid of Section 5 of the Limitation Act. In view of above said judgment of Hon'ble High Court at Calcutta, the Tribunal is not vested with power to extend the limitation beyond forty five days in filing Section 17 application.
5. Now the issue of maintainability of the present Misc. Application for registration purpose, whether the Misc. Applicant is entitled to file application being aggrieved by the Tribunal's order beyond forty five days in the SARFAESI matter. In view of above said judgment of Hon'ble High Court at Calcutta, the Tribunal holds the view that when the aggrieved person including the borrower is not entitled to invoke Section 17 beyond forty days from the date of 13(4) measure, the same principle of law is applicable to the subsequent event of filing application in the SARFAESI matter for recall of dismissal order in the
Token no. 216/2019
SARFAESI matter accordingly for restoration of the same in its original file. The Misc. Applicant is not entitled to avail the benefit of Section 5 of Limitation Act for condonation of delay in filing application in the SARFAESI matter beyond forty five days as and in view of settled law that the Section 5 of Limitation Act is not applicable in invoking Section 17 of the Act. The Misc. Applicant is barred by settled law to file application beyond forty five days in the SARFAESI matter.
6. In view of above observation and finding, the present Misc. Application being Token No. 216/2019 arising out of SA/56/2012 is not maintainable, time barred and does not deserve registration and is liable to be dismissed, hence dismissed.
Order pronounced in open Tribunal on 28<sup>th</sup> June, 2019
Copy of the order be given to the parties.
File be consigned to Record Room.
(M.S. Rao) 28.06.2019
Presiding Officer Kolkata DRT No. 2