TANMAY TEX vs STATE BANK OF INDIA on 11 June 2024

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PAGE NO. ....Item No.....05

**DRT-II, AHMEDABAD**

CASE NO. ....MA/31/2024

<table border="1"> <thead> <tr> <th data-bbox="41 81 176 106">DATE</th> <th data-bbox="176 81 811 106">DESCRIPTION OF THE ORDER</th> <th data-bbox="811 81 950 106">REMARK</th> </tr> </thead> <tbody> <tr> <td data-bbox="41 106 176 978"> <p>11.06.2024</p> <p>Present</p> </td> <td data-bbox="176 106 811 978"> <p style="text-align: center;">M/S. TANMAY TEX &amp; ORS<br/>Vs.<br/>STATE BANK OF INDIA</p> <hr/> <p>Mr.Dhrumit D.Chauhan, ld.Counsel for Applicants.</p> <p>Arguments of ld. Counsel for Applicants, on the application for condonation of delay in filing SA have been heard and I have perused file.</p> <p>Ld. Counsel for Applicants submitted that he has filed the above application for condonation of <b>delay of 19 days in filing above SA on 08.05.2024</b> from the date of <b>auction sale notice dated 06.03.2024</b> issued by Respondent Bank on the ground that Applicants were not aware about the technicalities and niceties of law.</p> <p>He further submitted that Applicants are suffering from several financial crunch and hardship and therefore Applicants could not gather Court fee as well as advocate fee for filling present SA before this Tribunal and also due to some unavoidable circumstances and reasons beyond the control of Applicants , they could not approach before this Tribunal and as mentioned in <b>para 04 to 06 of application for condonation of delay.</b></p> <p>He further submitted that the delay caused, if any, in filing SA, is not intentional and the Applicants will suffer great hardship in case, if delay is not condoned and that the above application may be allowed and delay, if any, in filing the above SA may be condoned.</p> <p>He has also drawn my attention towards para 11 of MA &amp; submitted that, this Tribunal has inherent powers to condone the delay in filing SA in view of the observations made by Hon'ble Gujarat High Court in Mahesh Harilal Khamar Vs. B.N. Narasimhan (1982 GLC 700) and also in Manglesh Champaklal Gandhi Vs. Aditya Birla Finance Ltd in SCA no. 15765/2019 decided on 07.10.2019, <i>Hon'ble High Court of Madhya Pradesh in Aniruddhsinh V/s. ICICI bank Ltd., 2024, Law Suit (MP no. 5324 of 2023), decided on 03.01.2024</i> and Hon'ble Bombay High Court in case of Kanji Manji Kothari Vs UCO Bank decided on 12.02.2008 in which Hon'ble Court has held that delay can be condoned in filing SA u/s 17(1) of SARFAESI Act, 2002, u/s 5 of Limitation Act.</p> <p>According to Section 17 (1) of SARFAESI Act 2002, a Secueritization Application has to be filed <b>within 45 days from the date on which measures referred to under sub-section (4) of Section 13 have been taken</b> by secured creditor or his Authorised Officer under this Section. There appears to be no provision made for condonation of delay in filing SA according to above Section.</p> </td>

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<table border="1"> <thead> <tr> <th data-bbox="41 79 178 105">DATE</th> <th data-bbox="178 79 814 105">DESCRIPTION OF THE ORDER</th> <th data-bbox="814 79 953 105">REMARK</th> </tr> </thead> <tbody> <tr>

<p>Hon'ble High Court of Judicature at Madras in CRP (NPD) nos. 3785 to 3787 of 2012, WP (31251) of 2018, <b>Velar Engineering Works Pvt Limited Vs. Authorized Officer, Indian Bank</b>, MANU/TN/5046/2019 decided on 05.09.2019, and affirmed by Hon'ble Supreme Court in <b>SLP Civil (Dairy No) 7023/2020 decided on 09.07.2020 in the same matter and reported in MANU/SCOR/32577/020</b> has held that proceedings of SA are akin to the Original Civil Suit, to which section 5, Limitation Act does not apply and this Tribunal has no power to condone the delay, if any, in filing the above SA u/s 5, of Limitation Act read with section 17 (7) of SARFAESI Act 2002 and section 24 of RDB Act, 1993. As according to section 17 (1), an application u/s 17 of Act, 2002, may be filed within 45 days from the date for which measures have been undertaken by secured creditor u/s 13(4) and there is no provision for condonation of delay in filing SA u/s 17(1) beyond this period. Further, Hon'ble High Court of Judicature at Madras in <b>Velar Engineering , Surpa</b> in para 7, 8 &amp; 9 has held as follows:</p> <p><i>7.On a perusal of Section 17 of the SARFAESI Act, it is clear that there is no provision made under the said Section for condoning the delay in filing the SARFAESI Application. The SARFAESI Application must be filed within 45.days.</i></p> <p><i>8.There being a specific time-limit of 45 days for invoking the original jurisdiction of Section 17 of the SARFAESI Act, which has been found to be, in essence, a suit and a further tentative time-limit of 60 days for disposal of the proceedings, and giving a right to the party to complain before the Appellate Forum for compliance of such provisions alleging violation thereof if not completed within four months, it was never the intention of the legislature to apply Section 5 of the Limitation Act to such original proceedings by giving power to entertain the application under Section 17(1) of the SARFAESI Act by merely showing sufficient cause for the delay without putting any restriction upon the Tribunal and we, therefore, hold that the time period of 45 days Page <a href="http://www.judis.nic.in">http://www.judis.nic.in</a> 12 / 24 C.R.P.(NPD) Nos.3785, 3786, 3787 of 2012 and W.P.No.31251 of 2018 provided in Section 17 of the SARFAESI Act which is original in nature cannot be extended by taking aid of Section 5 of the Limitation Act.</i></p> <p><i>9.The SARFAESI Application filed under Section 17(1) of the Act is like that of a suit and that the Limitation Act applies as far as may be applicable by virtue of Sections 17(7) and 24 of the two Special Laws, therefore, Section 5 of the Limitation Act has no application in the original proceedings like a suit before Debts Recovery Tribunal. Going by the amended Section, the proceedings under Section 17 of the Act is not an appellate proceeding, but rather an original proceeding, which is brought before a Forum prescribed under the Act and is like a suit under the Code of Civil Procedure, 1908. Thus, as a matter of fact the proceedings under Section 17 of the Act are in lieu of the Civil Suit, which remedy is ordinarily available, but for the bar under Section 34 of the SARFAESI Act and an application under Section 19(1) of the Recovery of Debts Due to Banks and</i></p> </td>

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<table border="1"><thead><tr><th data-bbox="45 83 178 106">DATE</th><th data-bbox="178 83 814 106">DESCRIPTION OF THE ORDER</th><th data-bbox="814 83 953 106">REMARK</th></tr></thead><tbody><tr><td data-bbox="45 106 178 978"></td><td data-bbox="178 106 814 978"><p><i>Financial Institutions Act, 1993 are similar provisions in its non-applicability of Section 5 of the Limitation Act. The Debts Recovery Tribunal exercises original jurisdiction while entertaining an application filed under Section 17(1) of the SARFAESI Act.</i></p><p>Thus, it is clear from the above observations and finding of Hon'ble Madras High Court that provision u/s 17 are like that of a regular Civil Suit in which section 5 of Limitation Act is not applicable.</p><p>It may also be noted that the above findings of Hon'ble Madras High Court have been <i>affirmed by Hon'ble Supreme Court in SLP Civil Dairy No 7023/2020 as above in which</i> Hon'ble Supreme Court, vide its order dated 09.07.2020 was not inclined to interfere with impugned order passed by the Hon'ble High Court of Madras the above SLP was dismissed accordingly.</p><p>It may also be noted that auction sale notice dated 06.03.2024 issued by Respondent Bank is said to be received by Applicants themselves and thus, the above SA ought to have been filed within 45 days from 06.03.2024. However, the above SA has been filed online on 08.05.2024. Thus, there is a delay of 19 days approximately. The reason for delay is said to be caused due to ignorance of technicalities and niceties of law and further, delay in arranging funds for payment of Court fees as well as Advocates' fees, due to financial crises as mentioned in para 04 to 6 of MA, which do not appear to be sufficient cause from preventing the Applicants from filing the above SA within limitation and ignorance of law is no excuse.</p><p>In view of the above discussion &amp; ratio as laid down by Hon'ble Madras High Court and affirmed/not interfered by Hon'ble Supreme Court, this Tribunal is of the view that application for condonation of delay in filing the above SA is not maintainable and delay in filing SA cannot be condoned u/s 5 of Limitation Act r/w section 17(7) of SARFAESI Act, 2002 and 24 of RDB Act, 1993 and no sufficient cause has been shown by Applicants, thus the above application <b>MA 31/2024 (Dairy No. 718/2024)</b> for condonation of delay in filing SA as well as <b>Dairy No.702 of 2024 (SA)</b> and pending I.A, if any, deserves to be dismissed and disposed-off <b>at the admission stage itself.</b></p><p>Order Accordingly,</p><p>Let file be consigned to records.</p></td><td data-bbox="814 106 953 978"></td></tr></tbody></table>

(ANIL KUMAR GUPTA) I/c. PRESIDING OFFICER DRT-II, AHMEDABAD 11.06.2024