Manishbhai Gunvantbhai Patel vs IDFC FIRST BANK LTD on 31 August 2023

**ORDER**

1. 1. The Applicants have filed the present Miscellaneous Application seeking condonation of delay of 73 days in filing Chamber Appeal against the order dated 23/03/2023 passed by Ld. Registrar declining registration of the proposed SA in view of the fact that the Respondent Bank has not taken action u/s 13(4) of the SARFAESI Act .

2. 2. I have heard Ld. Counsel for the Applicants and perused the record.

3. 3. Ld. Counsel for the Applicants submitted that the Respondent Bank issued notice u/s 13(2) on 03/06/2021

and thereafter issued notice u/s 13(4) on 31/05/2023. The Applicants filed Securitisation Application before this Tribunal upon issuance of notice u/s 13(2) of the SARFAESI Act and therefore it was declined to be registered by Ld. Registrar vide order dated 23/03/2023. The Applicants were unaware about legal provisions of law and therefore could not prefer Chamber Appeal against the order of Ld. Registrar. Ld. Counsel for the Applicants further submitted that the Respondent has issued notice u/s 13(4) on 31/05/2023, which was received by the Applicants on 02/06/2023. As such, now the present SA has come within the purview of the provisions of SARFAESI Act and the same is maintainable.

1. 4. It appears that admittedly when the Applicants sought to file SA u/s 17 of the SARFAESI Act, the Respondent Bank had not taken any action 13(4) of the SARFAESI Act. In this context, it would be pertinent to refer to and reproduce Section 17(1) of the SARFAESI Act, which reads as under:

***"17. (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed, to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken:***

*Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.*

*Explanation.—For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section (1) of section 17."*

1. 5. On perusal of the aforesaid provision, it becomes clear that this Tribunal cannot entertain Securitisation Application of the Appellant in absence of any measure having been initiated / taken by the Respondent Bank. Though the Respondent Bank has issued Possession Notice dated 31/05/2023 u/s 13(4), the same is issued subsequent to order dated 23/03/2023 passed by Ld. Registrar declining registration of the SA.

2. 6. In this context, it would be worthwhile to reproduce the provisions of Rule 5 of Debts Recovery Tribunal (Procedure) Rules, 1993, which read as under:

**"5. Presentation and scrutiny of applications. –**

*(1) The Registrar, or, as the case may be, the officer authorized by him, shall endorse on every application the date on which it is presented or deemed to have been presented under rule 4 and shall sign endorsement.*

*(2) If on scrutiny, the application is found to be in order, it shall be duly registered and given a serial number.*

*(2A) After registration of the application under sub-rule (2), the Tribunal shall issue summons to the defendants in Form IV.*

*(3) If the application, on scrutiny, is found to be defective and the defect noticed is formal in nature, the Registrar may allow the party to rectify the same in his presence and if the said defect is not formal in nature, the Registrar, may allow the applicant such time to rectify the defect as he may deem fit.*

*(4) If the concerned applicant fails to rectify the defect within the time allowed in sub rule (3), the Registrar may by order and for reasons to be recorded in writing, decline to register the application.*

*(5) An appeal against the order of the Registrar under sub-rule (4) shall be made within 15 days of the making of such order to the Presiding Officer concerned in chamber whose decision thereon shall be final."*

1. 7. As per aforesaid Rule 5(5) of the DRT Procedure Rules, the Applicants ought to have preferred Chamber Appeal within 15 days before this Tribunal against the impugned order dated 23/03/2023. However, the Applicants have failed to do so and they have filed the present Application for condonation of delay of 73 days before this Tribunal on 08/07/2023. Ld. Counsel for the Applicants have shown no provision of law empowering this Tribunal to condone the delay in filing Chamber Appeal against the order passed by Ld. Registrar.

2. 8. In the result, present Miscellaneous Application for condonation of delay in filing Chamber Appeal is hereby dismissed with no order as to costs. However, the Applicants shall be at liberty to file a fresh SA on the cause of action, if any, having arisen in his favour.

Pronounced in open Court on 31^st day of August, 2023.

(Laxman Madhani) Presiding Officer DRT-II, Ahmedabad

\*ykb\*