ASHOK GULABCHAND BAID vs MELIORA ASSET RECONSTRUCTION COMPANY on 5 October 2023

**ORDER**

1. 1. The Applicants have filed the present application for condonation of delay of one day in filing Securitization Application for challenging the action taken by the Respondent ARC under the SARFAESI Act and Rules framed thereunder and for other incidental reliefs. The Applicants have averred that the Respondent ARC issued notice under Section 13(4) of the SARFAESI Act, 2002 on 17.03.2023. The Applicants had contacted their Advocate about the said notice on 24.03.2023. The Applicants have further stated that it took considerable time in providing /

required documents to their Advocate pertaining to the present case. The concerned Advocate of the Applicants, after preparing a draft of the Securitisation Application, sent the same to the Applicants on 20.04.2023. The Applicants also took some time in finalizing the draft of the Securitisation Application and the process of finalization concluded on 29.04.2023. The Applicants have further averred that the Applicants were facing some financial crunch and were required to make arrangement for payment of court fees and other expenses. In these circumstances, delay of one day from the date of last measure under SARFAESI Act, 2002 has taken place. The delay is not intentional on the part of the Applicants and hence the same may please be condoned.

1. 2. On behalf of the Respondent ARC, Ld. Counsel has submitted that appropriate orders may be passed.

2. 3. Ld. Counsel for the Applicants submitted the following judgments with respect to condonation of delay:

1. (a) Manglesh Champaklal Gandhi V/s. Aditya Birla Finance Ltd., reported in MANU/GJ/2154/2019;

2. (b) V.Senthur and Anr. V/s. M.Vijayakumar., reported in 2021 SCC Online SC 846;

3. (c) K.J.George & Anr. V/s. The Authorised Officer, Indian Bank & Ors., in SLP(C) No.4754/2021 decided on 26.03.2021 (Hon'ble Supreme Court); /

1. 4. I have heard the Ld. Counsel for the parties at length and perused the judgments relied on by them in support of their respective submissions.

2. 5. Considering rival submissions of parties and law prevailing on the point of limitation, it would be pertinent to refer to the recent judgment of the **Hon'ble Debts Recovery Appellate Tribunal, Mumbai dated 12/04/2023 in Appeal No.246/2009 in the case of Pravin H. Kantaria and another V/s. Mahanagar Coop. Bank Ltd. And others.** It has been held therein as under:

*"After an anxious consideration of the rival contentions and the materials placed, it is found that the proceedings under the SARFEASI Act are before a statutory Tribunal, and cannot be placed on par with proceedings before a Court. The decisions relied upon by the Ld. Counsel for the Appellants are all with regard to proceedings before the Courts. The Tribunal shall have no powers to condone delay unless expressly conferred by the Statute creating it. In Sakuru v. Tanaji, 1985 (3) SCC 590: AIR 1985 SC 1279, the Hon'ble Supreme Court observed thus:*

*"3. ... that the provisions of the Limitation Act, 1963 apply only to proceedings in 'Courts' and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under S.90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him. But even in such a situation, the relevant special Statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provision of S.5*

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of the Limitation Act shall be applicable to such proceedings. Hence, it becomes necessary to examine whether the Act contains any such provision that entitles the Collector to invoke the provisions of S.5 of the Limitation Act for condonation of the delay in the filing of the appeal....."

*The scheme of the SARFAESI Act manifestly precludes application of the Limitation Act. The intention of enacting special statutes is to expedite the disposal of cases. If delays are to be condoned by application of Section 5 of the Limitation Act, the very purpose of the statute will get frustrated. There is 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 the essence, of the statute, and also looking into the fact that a further time limit of 60 days for disposal of the proceedings, and giving a right to the party to appeal 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 proceeding by giving the 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 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. The Appellants had approached the DRT more than two years after the Sarfaesi measures were initiated by the Respondent Bank. That apart, there also does not seem to be sufficient reason for condoning delay. The law does not come to the aid of those who sleep over their rights. The Ld. Presiding Officer has rightly dismissed the application for condonation of delay, and this Tribunal finds no reason to interfere with that finding.*

*The appeal lacks merits and is therefore dismissed."*

1. 6. At this stage, a reference also deserves to be made to the judgment of Hon'ble High Court of Judicature at Madras in

CRP (NPD) Nos.3785 to 3787 of 2012, WP (31251) of 2018, **Velar Engineering Works Pvt. Ltd. vs. Authorized Officer, Indian Bank**, MANU/TN/5046/2019 decided on 05.09.2019, and affirmed by Hon'ble Supreme Court in SLP Civil (Dairy No.) 7023/2020 decided on 09.07.2020 in the same matter and reported in MANU/SCOR/32577/020 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 the 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 Velar Engineering (Supra) in para 7, 8 & 9 has held as follows:

*"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.*

*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*

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*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 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.*

*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 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."*

1. 7. 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.

2. 8. It may also be noted that the above findings of Hon'ble Madras High Court have been affirmed by Hon'ble Supreme Court in SLP Civil Dairy No.7023/2020 as above in which 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 and the above SLP was dismissed accordingly.

9. In view of the above ratio as laid down by Hon'ble DRAT, Mumbai and the Hon'ble High Court of Madras, as affirmed 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. As such, the above Misc. Application filed for condonation of delay in filing SA is hereby dismissed and disposed of accordingly.

10. Let file be consigned to records.

• Pronounced in Open Court on this the 5^th day of October, 2023.

(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

/smita/