Mrs Darshana Dayanand Shirke vs ICICI BANK LIMITED on 20 October 2023

**ORDER**

1. 1. This order of mine shall dispose of the Miscellaneous Application bearing No.130 of 2023.

2. 2. The Additional District Magistrate, Thane has passed Order dt.06.04.2023 under Section 14 of the SARFAESI Act,

2002 in respect of Flat No.G4, Ground Floor, A wing, Maya Apartment CHS Ltd., Opp. Ostwal Park No.2, Chandan Park, Bhayander (East), Village Khari, S. No.27/P/ 28/4,5, Dist. Thane. Therefore, the Applicant filed the Securitisation Application in this Tribunal.

3. It is the plea of the Applicant that there is delay of 29 days in filing the Securitisation Application and the delay is on account of financial difficulty and due to ill health of the Applicant, she could not approach the Advocate to take instructions for filing the Securitisation Application. The counsel for the Applicant submits that there is no wilful delay caused by the Applicant. There is just and sufficient cause to condone the said delay. So, the present M.A. has been filed to condone the delay of 29 days in filing the Securitisation Application.

4. The question in this case is whether the delay of 29 days can be condoned or not. In the opinion of this Tribunal, the present application for condonation of delay is not maintainable and the delay cannot be condoned for the reason that in the SARFAESI Act, 2002, limitation of 45 days for filing an application under Section 17 has been provided keeping in view the purpose and object of the enactment. In

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Transcore Versus Union of India and other, (2008) 1 SCC 125, the Hon'ble Supreme Court has held that the SARFAESI Act, 2002 is enacted for quick enforcement of the security. Also, in case of *Indian Bank Circle Office, Ernakulam Versus K.J. George*, 2021 ACD 31 (Ker), the Hon'ble Kerala High Court has held that neither the DRT has power to condone the delay while exercising the powers under Section 17 of the SARFAESI Act nor this Court can extend the time of limitation for entertaining an application under Section 17 of the SARFAESI Act, 2002.

5. The Hon'ble Madras High Court in the case of *M/s. Velar Engineering Works Pvt. Ltd. Kancheepuram Versus Authorised Officer/Chief Manager, Indian Bank, Circle Office, Kanchipuram*, AIR OnLine, 2019 Mad 596 has observed that on a perusal of Section 17 of the SARFAESI Act, it becomes 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. 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

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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 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 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 4Dharm

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. 6. In an un-reported judgment dated 03.05.2019 made in Civil Appeal No.4582 of 2019 [Ganesan rep by its Power Agent G.Rukmani Ganesan Vs. The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board & Ors.], the Hon'ble Supreme Court held as follows: "39. The most elaborate judgment holding that the Limitation Act applies only to courts and not to the Tribunals is the judgment of this Court in M.P.Steel Corporation Vs. Commissioner of Central Excise, 2015(7) SCC 58, Rohinton Fali Nariman, J. speaking for the Court reviewed all earlier judgments of two-Judge and three-Judge Benches of this Court. In paragraphs 11 to 35 all earlier judgments have been considered. In the above case Commissioner of Customs (Appeals) dismissed the appeal filed by the appellant on the ground that appeal is barred

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by time and the Commissioner (Appeals) had no power to condone delay beyond the period specified in Section 128 of the Customs Act. In the above case, benefit of Section 14 of the Limitation Act was sought. It was contended before this Court that while Section 2 of the Limitation Act, Section 14 of the Limitation Act was also applied to criminal, special or local law. This Court noticed the ingredients of applicability of Section 14. Two-Judge Bench has held that relying on earlier judgments of this Court that provisions of the Limitation Act are applicable only to suits, appeals and applications filed in Courts. Section 29(2) was also considered by this Court and following was laid down in paragraph 33:

33 ... Section 29(2) states:

29. Savings - (1) \*\*\*

(2) where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the

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provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."

A bare reading of this Section would show that the special or local law described therein should prescribe for any suit, appeal or application a period of Limitation different from the period prescribed by the Schedule. This would necessarily mean that such special or local law would have to lay down that the suit, appeal or application to be instituted under it should be a suit, appeal or application of the nature described in the Schedule. We have already held that such suits, appeals or applications as are referred to in the Schedule are only to courts and not to quasi-judicial bodies or tribunals. It is clear, therefore, that only when a suit, appeal or application of the description in the Schedule is to be filed in a Court under a special or local law that the provision gets attracted. This is made even clearer by a reading of Section 29(3). Section 29 (3) states:

29. Savings - (1) (2) \*\*\*

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in

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this Act shall apply to any suit or other proceeding under any such law.

When it comes to the law of marriage and divorce, the section speaks not only of suits but other proceedings as well. Such proceedings may be proceedings which are neither appeals nor applications thus making it clear that the laws relating to marriage and divorce, unlike the law of limitation, may contain proceedings other than suits, appeals or applications filed in Courts. This again is an important pointer to the fact that the entirety of the Limitation Act including Section 29(2) would apply only to the three kinds of proceedings mentioned all of which are to be filed in Courts."

The ratio laid down by the Hon'ble Supreme Court in the above referred judgment applies to the present case. The application filed under Section 17(1) of the SARFAESI Act before the Debts Recovery Tribunal is an original proceeding, hence, Section 5 of the Limitation Act is not applicable for condoning the delay in filing the application under Section 17.

7. Furthermore, the Hon'ble Supreme Court in the case of Nahar Industrial Enterprises Ltd. Versus Hong Kong and ahum 20/10/2023

Shanghai Banking Corporation reported in 2009 (10) JT 109:2009 AIR SCW 6262 has specifically held that the Debts Recovery Tribunal is not a Court and so, Section 5 of the Limitation Act could not have been invoked to a proceeding under Section 17(1) of the SARFAESI Act.

8. So, in view of the pronouncements made by the Hon'ble Supreme Court and various Hon'ble High Courts, this Tribunal is of the view that this Tribunal is not empowered to condone the delay of 29 days as sought by the Applicant. Hence, Miscellaneous Application No.130 of 2023 is hereby dismissed being not maintainable.

*Arun Kumar* (ARUN KUMAR SINGAL) PRESIDING OFFICER DRT-III, MUMBAI At : VASHI,

Typed By - SS Bhandari