Debts Recovery Tribunals and Appellate Tribunals
FEDERAL BANK vs BAJARANGI on 28 February 2023
**IN THE DEBTS RECOVERY TRIBUNAL-II AHMEDABAD
PRESENT : LAXMAN MADNANI, PRESIDING OFFICER**
**CHAMBER APPEAL NO.05 OF 2022**
Date of Order:- 28/02/2023
The Federal Bank Ltd.
...Applicant
**Versus**
Mr. Bajrangi Gaurishankar Chauhan & Anr.
...Respondents
**Present:**
Mr. Kapil C. Jha, Ld. Counsel for the Applicant-Bank
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**ORDER**
1. 1. The Applicant-Bank has filed the present Chamber Appeal against the order dated 08/12/2022 passed by Ld. Registrar declining registration of the proposed Original Application on the ground that the Original Application time barred.
2. 2. I have heard, Ld. Counsel for the Applicant-Bank.
3. 3. Ld. Counsel for the Applicant-Bank submitted that the property mortgaged in the account of the Defendants was sold by the Bank under SARFAESI Act and Sale Certificate was issued on 22/07/2021. The present Original Application has been filed by the Applicant-Bank before this Tribunal on 19/08/2022. He further submitted that the Applicant-Bank has filed the present Original Application for recovery of residual amount against the Defendants and therefore the period of limitation will be available to the Applicant-Bank after sale of the property. He also submitted that the present Original Application being filed within the prescribed period of limitation, there is no need to file any separate application for condonation of delay as directed by Ld. Registrar vide his impugned order dated 08/12/2022 and hence, he requested to register and number the proposed Original Application on the file of this Tribunal.
4. In support of his submissions, he relied of the following judgments:-
- ➤ Paul D'Souza and Ors. Vs. Canara Bank, Bangalore & Ors., MANU/KA/0079/2002.
- ➤ Visweswaran V. Vs. M/s. Sundaram BNP Home Finance Ltd., OP (DRT) No.208 of 2019, passed by Hon'ble High Court of Kerala at Ernakulam.
- ➤ Maars Software International Ltd. Vs. Axis Bank Ltd., MANU/DC/0001/2011, passed by Hon'ble DRAT, Chennai.
5. On perusal of the impugned order dated 08/12/2022 passed by Ld. Registrar, it appears that the Ld. Registrar has observed that there was no payment in the account of the Defendants after 19/09/2016 and the loan was recalled on 15/02/2017. Therefore, the period of limitation will be three years from the date of default / recall of the loan application. He further observed that the balance confirmation executed by the Defendants on 04/01/2020 was after expiry of limitation period and hence the Applicant-Bank cannot avail the benefit as per provisions of Section 19 of the Limitation Act. On this issue, the following observations made by the Hon'ble DRAT, Chennai in Maars Software's Case (Supra) are relevant and the same are reproduced hereinbelow:- "2. Learned Counsel Mr. V.V. Sivakumar appearing for the respondent Bank i.e. Axis Bank drew the attention of this Tribunal to Section 13(10) of the SARFAESI Act and stated that this provision has been enacted in the SARFAESI Act to enable to secured creditors to approach the DRT after the sale of one or all secured assets for the recovery of the balance amount due and that the period of limitation would start from the date of the last sale made by the secured creditor. He added that the period of limitation can also be reckoned under (Sic Article) Section 137 of the Limitation Act. Learned Counsel further stated that the order of the learned Presiding Officer is proper and has been passed after due consideration to the facts and circumstances of the case and that the learned Presiding Officer, DRT-I, Chennai may be directed to take up the SA filed by the secured creditor and dispose of the same in accordance with law within a specified time frame as public money is involved.
3. Heard the learned Counsel.
4. It is seen that the secured creditor can file an application under Section 13(10) of the SARFAESI Act and a reading of Section 13(10) reveals that an application under Section 13(10) can only be filed after the sale is over and that Section 137 of the Limitation Act applies in this case and therefore it can be concluded that the learned Presiding Officer was right in observing that the secured creditor is well within the period of limitation and the learned Presiding Officer was right in dismissing the application filed by the appellants in the Tribunal below."
In view of the aforesaid law laid down by the Hon'ble DRAT, Chennai and the settled position of law being that limitation is a mixed question of law and fact, I deem it proper to direct the Registry to place this matter with the observation regarding bar of limitation, before this Tribunal.
6. In view of the aforesaid, the impugned order dated 08/12/2022 passed by Ld. Registrar is required to be quashed and set aside. Hence, I pass the following order:-
**ORDER**
- ➤ The present Chamber Appeal is allowed.
- ➤ The order dated 08/12/2022 passed by Ld. Registrar is hereby quashed and set aside.
- ➤ The Registry is directed to number the Original Application presented by the Applicant-Bank.
➤ After registering the matter, the Registry is further directed to place the matter before this Tribunal on 10/03/2023 for consideration of the point of limitation.
Pronounced in open Court on this 28<sup>th</sup> day of February, 2023.
**(Laxman Madnani)** **Presiding Officer** **DRT-II, Ahmedabad**
\*pathey\*