K KANAKA RAJU vs CHAITANYA GODAVARI GRAMEENA BANK on 30 June 2022

ORDER

This applicant has prayed in this MA to condone delay of 535 days in filing the SA for reasons aforesaid and beyond control of applicant and due to Covid-19 pandemic situation since March, 2020 and passed such other and further orders as deemed fit in the interest of justice. The applicant has alleged that authorised officer of bank on the basis of time bared mortgage deed auctioned the mortgaged property under the provisions of SARFAESI Act. The applicant was also branch Marnager and now he is terminated from the service about the auction proceedings, al the facts came in the knowledge of applicant during the 1st week of December 2019 when his son visited their house. After that he tried to collect the papers. At last filed this petition under Sec. 5 of Limitation Act. The Respondent No.1 has filed counter and prayed to dismiss MA. The respondent has submitted that the SARFAESI proceedings were totally concluded on 22.04.2019. Hence present MA is not maintainable legally. The successful bidder has further alienated the part of property to other MA 97/ 2020 in SA UN person. The applicant did not pay the debt as per terms of sanction. The applicant has not disclosed valid reasons of delay. The Respondent No.2 submit that he is a bonafide auction purchaser for a value in good faith and much prejudice will be caused to respondent No.2. He also prayed to dismiss MA filed by applicant. Admittedly applicant was branch manager, he is terminated from the service on different allegations. He had taken loan but as per terms of the loan he has not paid the loan. The bank authorities as per provisions of SARFAESI Act has sold the schedule property. The petitioner has filed this MA to condone delay of 535 days in filing the SA. In this regard I would like to like to refer judgment of Hon'ble Calcutta High Court passed in on 30.04.2010 which is as follows: Theretore. 2 pure question of law anises for determination in this appeal as to whether an appicatson for condonation of delay in preferring an application under Scction 17( ) of the SAREAESI Act bey ond the period of 45 days prescribed under the said Act can be al bow cd b eiercrsing pow er under Section 5 of the Limitation Act In order tn apprec iate the aforesad qucstion. it will be profitable to refer to the Section and of the SARF AESI Act and Sect on 4 of the Recover of Debts Due to Banks and F inarc 1al Institutions Act 1993 and also Section 29 of the Limitat ion Act 1963 hch are quoted beiov 17Righ to appeal -1) Amy peTson (1ncluding borTower). aggrieved by any of the measures refered to n sub-section (4 of sectin 13 tak en by the secured credtor or his authoriscd cffer under thes Chapter. may make an apPplication along with such fee. as may be prescr. bed to the Debts Recv ery Tribunal hav ing Jurisdiction in the matter within yfive days from the date on whach such measures had been tak.en Prrded that di fferent 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 eretr 3ec lared that the communication of the reasons to the borrower by the secured re1tor for an ha ing ac cepted hrs representation or objection or the likely action of the red creditr at the staye of communcation of reasons to the borrower shall not entitle eperson (inc luding borroweT) to mak.e an applicat ion to the Debts Recovery Tribunal nder uh-section I o et D-brs Recover Tribuna! shall corsider whether any of the measures referred to in hon4 nf sect.on 13 taken by the secured creditor for enforcement of security are ac cordance ith the provisions of this Act and the rules made thereunder 31 he Debts Recovery Tribuna!. after examining the facts and circumstances of the case and evidence prod c ed b The parties, comes to the concusion that any of the eavres referred to in sub-section (4) of sect on 13. taken by the secured creditor is not in ac cordance th the prov isions of this Act and the rules made thereunder. and require restoration of the maragement of the secured assets to the borrower or restoration of ssessom of the secured assets to the borrow er it may by order. dec lare the recourse to arry one or mere measures refermed to in sub-section (4 of seuton I3 (47. the Debrs Recover Trmbunal dec lares the recourse tak en by a secured creditor under sbsectinn (4i of er 7is in accordance with the prov isions of this Act and the rules maxde thereunder then. rrtu ithstanding arything contained in any other law for the time being in force. the secured creditor shail he entitied to take recourse to one or more ot the measures specified under sub-section (4) of ection 1 to recover his secured debt

(5) Any application made under sub-section l shall he dealt with by the Debts Recover Tribunal as expeditiously as possible and disposed of within sixty days from the date ot such application Provided that the Debts Recovery 1ibunal may. Irom time to tume. estend the sard period tor reasons to be recorded in writing. so. however. that the total period of pendency of the application with the Debts Recovery Tribunal. shall not exceed four months from the date of making of such application made under sub-section ( 1)

(6) T1 the application is not disposed ofby the Debts Recovery Tribunal within the period ot tour months as specified in sub-section (5). any party to the application may make an application. in such form as may be prescribed. to the Appellate Tribunal for directing the Debts Recovery Iribunal for expeditious disposal of the application pending betore the Debts Recovery Tribunal and the Appellate Tribunal may. on such application. make an order tor expeditious disposal of the pending application by the Dcbts Recovery Tribunal Save as otlherw ise provided n this Act. the Debts Recovery Tribunal shall. as tar as may be. dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (SI of 1993) and the rules made thereunder

The provisions of this Act to override other laws.--The provisions of this Act shal have effect, notwithstanding anything inconsistent therew ith contained in any other law for the time being in force or any instrument having effect by virtue of any such law 36 Lmitation --No secured creditor shall be entitled to take all or any of the measures under sub-section (4) ot sectn |3. unless his claim in respect of the tinancial asset is made ithin the period of imitation prescribed under the Limitation Act. 1963 (36 opf

Applic ation _ot other laws not barred-- The provisions of this Act or the rules made thereunder shall be in addition to. and not in derogation of. the Companies Act. 1956 (I of I956 the Sceuritres Contracts Regulation Act. 1956 (42 of 1956). the Securities and hanee oard f India tt 1992 (I5 of 1992). the Recovery of Debts Due to Banks and Financial Institutons Act. T993 S1 of T993) or any other law for the time being in force Recovery of Debts Due to Banks and F inancial Institutions Act. 4Limitation --The provisions of the Lmtaton Act. 1963 (36 of 1963). shall. as far as may be. apply to an application made to a Iribunal I iton ct. 1963 20 Savine's- 1) Nothing in this Act shall affect section 25 ot the Indian Contract Act I872 9 ot 1872) Where any special or local law prescribes for any suit. appeal or application a period of limitation ditterent trom the period prescribed by the Schedule. the provisions of ection 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 special or local law. the provisions contained in sections application by any It ncusive shall apnly only in so far as. and to the extent to which. they are not enpresly encluded hy such special or local law (3) Save as otherw ise provided in any law for the ine beng in force with respect to narriage and divorce. nothing in this Act shall apply to any suit or other proceeding nder any such law

(4) Sections s and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the terntories to which the Indian Easements Act. 1882 (S of 1882). may Mr Agarw al. appear1ng in person. criticized the order passed h the learned Single Judye by contend1ng that the learned Single Judge erred in law in holding that Sectuon ot the Limitation Ac had application to the proceeding under Section )of the SAREATSI Act According to Mr Agarwal. the Supreme Courn in the case of Nahar Industrial L nterprises Lid vs Hong hong and Shanghar Bankmg Corporation reported in 2009 ( OJT TO9 hav ing specifically held that the Debts Recovery Tribunal i not a Court. ection ot the Limitation Act could not have been invoked to a for the time being extend

MA7 2020 in SA proceeding under Secton 1 of the SARF ASi Act Mr Agarwal further coteds thar the legrslature baving precribed a tume lmt of 45 days n sling ar appincato uner Sectmn1 of the SARFAESI Act the learned Semgle Jdge erred n law hoiding that Sectnon of the Lmitatnon Act had the application to such proceedings r Agarw al further comtended that an applscatom unJer e t ir of the At sor hvnai t nuasture and as such. Sectaon carnot have an appicat nom t ch cr gvund proceed v we assume for the ake of argument that the mstt a geera h thee appicat scon tr sn h proceedings Mr Chateryee the learnedsemior advocate appearnng on behaif of the petitioner respoendent. has however, oppused the aforesad subrmssaos of Mr Aarwal and haas comtended that m vnew of the pefic o rsaon contaned n ectan of the SARAESI Act read th ectom 4 of the Rec ery of Debts De to Rarnks and nanc val testitut vons Act there s no cope of doube that all the proV sOS o the mitata w Act nc haderg Sectuon thereot w ould be applc able Actondong to ChatteTyee. even by irtue of the prov esiOs contarned n ecta of the I m stat moen t the power under Sev fac thereof can be voked by the T ribunal Mr Chateryee therefore by uporting the order passed by the learned Single Jodpe prays for drsmrssamg the acal There fore the questnc thuat arvue for determinaton n thrs appeal n whether the pr rsom inn fthe Imatat mn AcT for condonation of delay applies to a proceedung under etn f the SAREAESIAct in ew of subsectson T of se tan of the SAREAEsi Act the Dcbe Recovery Tribunal shall a far as may be despose of the applucatson naccordance with the p n the Rexner of Debev Dur to Ranks and F rarnc al Inst itast uors Act 199 and the rules made thereunder tr furthe aearn that accrdang to nf thee Recovery of Detbes Due to Banks and Fman al Imtittcs AcT 1991 the pro som of the amtatwnct. 1963 shall. » far as ma be ap t a appincatvom made to a Tribuma The compount effect of Sectaon of the SARFAESI Act and Sc taon 4 of the Recovery of Detes Due Ranks and F erurc sal Imstituticos Act 1993 sthat un a proceeding under at of the ARI AISl AcT hoc h n ritertaned by a Debes Recovery Thenal the pro sw f rhe tat om Nct 196i shall as far as may be. appl A tethw h ert of the SARF AESI Act has been descnbed n the saad Act as the one er ng h f apeai herid by the Supreme Cout m the case of Mard-a (hemac.als & eportied n 2004 (4) SCC311 and aho n the case r A rreported n AIR 2007 I2 the prox eedanget uder es' the SA ME AB S Act m fact are not appeltate proc eedungs ard seems to be a rscer According to the Seupreme ort m fact. t s the nitial a 1en-hach s broagh before a forum as prescribed under the A rarung grey ance aparesf the ac taon or meares taken by e of the partues to the contractTherefore. acconJng Bo t/e ureme ( cart. f s the stagre of mitial proceed1ng ike filingg a sant n Cv ourt t has further been pornted out y Supreme ourt that as a matter of fact the procerdings under Se t n of the Act are n teu of aivl st whach remedy s rdina avas Labic brut for the bar reated under ecta t of the Act A fter the deciscon of the Suprene ourt in the case of Mardia Chemcab I td ( supra). the angage f Sie of the SARFAI Nl Act was amended and nstead of appeal the wrd appl icat c nwas introdced in the secton. although, the marginal note was not hanee1. n the subsequerit decison of the Supreme Court in the case of Ms Transcore (supra. the unreme out after tak ng nto consaderat s(on the armended provisions of Sectuon nounteu t that the marg inal note to ectun of the SARFAESI Act could no ntrd the test onter of Seron and by tollow ing the earfieT dec issos of the M a Chemcals I ta (supra reiterated that the secton exercises orginal jurisdictvon The fol levw ing nbeervat.ons n he Apex Coun in the above two cases are quoted below We may ike to oerrve that proceedinges under >euTm of the Act. n fact. are no arpel late nmceedin. seem to he a misomier In tacT it s the initial axtion whach es hr e ht hefore a frurm a rew ribed under the AcT raisin griev ance aganst the actan or h fe parties in the contracT I1Is he stage of nitial proc eeding lke ch I em s ~ter ot tact proc erdinus under Sectieon of the Act are MA 97/202O in SA UN in lieu of a civil suit which remedy is ordinarily available but for the bar under Secton 34 of the Act in the present case." (Paragraph 59 of Mardia (supra)) "II is true that Section 171 of the NPA Act states inter alia that a borrower aggrieved Dy action taken under Section 134) may make an application along with fees. as may be prescribed to the DRT having iurisdiction in the matter I is true that. the marginal note states that Section 17)is a right to appeal In our view. the marginal note to Secto 171cannot control the test and the content of Section17 (1) which. as stated above states that the borrower aggrieved by any of the measures in See nn 130 4) may make an application to the DRI The judgment of this Court in Mardia hemicals ( supra state that the DRT acts in an Orignal Jurisdiction under Secton 17 of the NP'A ACt In our opinion. as far as the levy of fee is concerned. the terminology makes no difierence Tact. the proviso to Secion 1 71) indicates that different fees may be prescribed 1or making an application by the borrower. The reason is obvious Certain measures takenn under Section 1 3 (4) like taking over the manayement of the fee vis-avs the securcd creditor tak ing possession of financial assets have to bear different fees Lach measure s required to he separately charged to the borrower (applicant) for which different lees could be prescribed. The said proviso indicates that the tribunal under Section!7 (1 exercises Original Jurisdiction and. therefore. as far as the lees are concerned. the terminoloyy,o original or appellate jurisdiction in the context of fees is irrelevant. " (Paragraph 60 of M/ Transcore( supra)) In view of the decision of the Supreme Court in the aforesaid two matters there is no controversy that a proceeding under Secton 17i) is in the nature of original proceeding and in such a case. even though the other relevant provisions of the Lunitation Act applies. Section 5 thereof at least has no application in view of the fact that the said section is not applicable to the original proceeding like suit. We have already pointed out that the Limitation Act in general will be applied in the proceedings under Section 1701) of the SA RFAESI Act "as far as may be" We. therefore. hold that although in a proceeding under Section 17(1) of the SARFAESI Act. the provisions of the L unitation Act applies in general "as lar as my be". yet. Sccuon 5of the Limitation Act in particular. however. has no application in view of the fact that the proceeding is original in nature like suit and Section 5 of the Limitation Act has no application to a suit. At this stage. we may profitably refer to the decision of the Supreme Court in the case of CopalSardar s Karuna Sardar reported in 2004(4) SCC 252 where the question was whether the provision of Sccton 5 of the Limitation Act applied to a proceeding for preemption under Section 8 of the West Bengal Land Reforms Act which is initiated by an application In that context the Supreme Court by relying upon the Division Bench decision of this Court in the case of Serish Maji vs. Nishit Kumar Doloi reported in 199 1) CHN 365) held that a proceeding initiated by an application under Section 8 of the West Bengal Land Reforms Act is to be construed as a suit for the purpose ofl tt.af teothA Apply ing the said principle to the facts of the present case. we are of the icw that the nature of proceeding under Seim 17 of the SARFALSI ACt being original in nature ike suit a held by the Supreme Court in two ditterent decisions indicated earlier. although it is initiated by an application. it should be deemed to be a suit like an application under Section 8 of the West Bengal Land Reforms Act as held in the case of Serish Maji (supra). In this connection. the following observations of the Apex Court are relev ant The Division Bench ot the Calcutta ligh Court in Serish Maji after elaborate consideration. referring to various decisions and on analysis of different provisions. in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section is to be construed as a "suit" for the purpose of the Lmitation ACI. We have good reason to approve the said view. This being the position. Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act." At this stage it will be profitable to reter to those paragraphs of the Division Bench decision of this coun in the case ot Serish Maji (supra). approved by the Apex Court which are quoted belo14

The words "application" and "suit" have been detined in section 2(b) and 2)of the Iinmitation Act as follows:

(h) application" includes a petition (1suit" does not include an appeal or an application:

Both are judicial proc eedings. The word "proceeding" refers not only to a complete remedy but also to a tep that ispart of a larger action or special proceeding The

definition of the word "proceeding" in Black's Law Dictionary. 5th Edition at page 1083 gives a description of the characteristics of a suit: The word may be used synonymously with 'action' or 'suit' to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry ofa final judgment. or may be used to describe any act done by authority of a court ot law and every step required to be taken in any cause by either party The proceedings of a suit embrace all mattes that occur in its progress judicially 26 Following from the de finition it may safely be said that there are two broad categories of proceedings. first. a proceed1ng which is the entire course of action and second. a proceeding which is a step ancillary to or taken in course of the first. A suit is a complete or independent proceeding falling within the first class of proceedings. Applications. according to the Limitation Act. are governed by Articlc 118 to 137. Characteristically. they are in connection w ith or ancillary to a suit. its decree or execution. They are not. in thrs sense. an inde pendent or complete proceeding. An application in the sense used in the I imitat ion Act thus falls within the second class of proceeding

An application under the Lin itation Act also does not initiate an action The sections of the Limitation Act namely. sections 4. 6.7. 11. 15. 16. 17. 21 and 3I all talk of institution of suits and making of applications. An appeal is preferred The meaning of the word institute" Is to begin or orig1nate. Therefore a proceeding under the Limitation Act can be initiated or begun and the mach1nery of law set in motion only by a suit not by an application 28 The other distinction between suits and applications which appears from the Limitation Act is that suits primarily decide issues or causes of action. For example. section 14 of the Limitation Act grants exclusion of time in suits when the same matter is in issue or prosecuted in good faith in a Court which from defect of jurisdictiion etc. is unable to entertain it Sub-section (2) of section 14 however allows an exclusion of time in an application. if the applicant has been prosecuting another civil proceeding for the same relief Sce. S K Dutt vs. Purnachandra Sinha AIR 1949 Cal 24. 43 para 57)

I would there fore conclude that for the purpose of the Limitation Act a suit may be de fined as an independent proceeding which must be initiated for the final determination of an ssue or issues of fact or law between the parties

This definition finds support in Black's Law Dictionary. 5th Edition. w here "suit" has been defined as Suit A generic terms. of comprehensive signification. referring to any proceeding by one peTson or persons against another or others in a court of justice in which the plaintiff pursues. in such court. the remedy which the law affords him for the redress of an injury or the enfurc ement of a right. whether at law or in equity."

The words "application" and "petition" often refer to the form and not to the substance fthe procecding. This interchangeability has led to semantic confusion and the suostanti ve right has been defined with reference to the procedure prescribed for en forcement of the nght Tne procedure cannot define the right and no distinction can be made between the ame suhstantive rnghts merely on the basis of the procedure involved. If this were so then ng a particular proc edure a party could deternine the period for enforcing the 33 Theapplicant has however contended that only those proceedings which are initiated hy 7raint can he termed to be a suit for the purpose of the Limitation Act If we were to accept thrs submission of the applicant we would fall into the semantic trap noted above an 1 a'n come a conc lusion contrary to the authorities on the point In construing the word Suit in section of the Code of Cvil Procedure the preme Cuurin anufuran Ram hardi. Mandlik Gharee 1989 Supp 2) SCC 627 said Shantiha Rameh.andra Inis comprehensive sense the word 'sut iss understood to apply to any proceeding in a court of justice by which an indiv idual pursues that remedy which the law affords The modes of proceedings may be arious hut that if a right litgated between parties in a court of justice the prox eed r by whch the decision ot the couit is sOught may be a suit f mphasis supplied)

here are several instances where suits are initiated otherwise by filing a plaint Scclion 20(2 of the Arbitration Act. 1914o provides that an application to file an arbitralion agreenment in Court shal1 be registered and numbered as a suit and the parties are described as plaintift and defendant respectively. Similarly. matrimonial suits under the Indian Divorce Act. 1869 are originated by filing a petition (Vide Chapter XXXVA of the Original Side Rules of this Court). A testamentary suit is also initiated by an application lor grant of probate or letters of administration [Vide Rules 40) and 28 of Chapter XXXV of the Original Side Rules of this Court. An Origir filed and numbered as an ordinary suit ( Vide Chapter XIII of the Original Side Rules of this Court). ng Summons suit is initiated by summons supported by an afidavil and is

36. Even section 26 of the Code of Civil Procedure. 1908 provides that "every suit shall be instituted by the presentation of plaint or in such other manner as may be prescribed".

37. It is true that the Privy Council decision in Hansraj vs. Dehradun- Mussorie Llectric I ramway Co Lid. AIR 1933 PC 63 said: "The word 'suit' ordinarily means. and apart from some context must be taken to mean. a CI proceeding instituted by the presentation of a plaint".

The decision was rendered in the content of the Linitation Act. 1908 Besides the observation expressly recognises that a suit in a certain context need noi necessarily be instituled by a plaint. It would depend on the context whether the proceeding is a suit oor not.

39. Thus in Balram Singh vs. Dudh Nath AlR 1949 AII 100, a Division Bench of the Allahabad High Court held that an application under section 12 of the U.P. Agriculturists Reliet Act. 1934 was a suit and that the decision whether the proceedings under the 1934 Act were a suit or not would not depend merely on the fact that the proceeding were initiated by an application. Conversely in considering whether an application for execution was barred under Article 182 of the Limitation Act. 1908. the Supreme Court said that "it may be plausibly argued that the plaint, which makes a request to the court. is an application"

The decisions cited by the appellants viz. Antala iope vs Sarbo Gohain AIR 1962 Patna 489: Paus Fernandes vs. M.E. Qucoros AIR 1963 AlI 153 and Mst. Puinbasi ahiani vs. Shiba Bhue AIR 1967 Orissa 41 are not relevant. The first decision was in respect of the applicability of the Court Fees Act. 1970 to proceedings under the Hindu

1. arriage Act. 1955. In the second and third decision the applicability of the Court Fees Act to the Succession Act. 1925 was considered. The Courts were considering the nature of proceedings for the purpose of levying Court Fees. The context. the object and the language of the Court Fees Act are materially different from the L imitation Act

There is another aspect of the matter A preemptive right under the I imitation Act. 1963 is one w hich is entforceable only by way ofa suit. Thus section 8 provides: Nothing in section 6 or in section 7 applies to suits to enforce

8. Special exceptions. rights of preemption. or shall be deemed to extend. for more than three years from the cessation of the d1sability or the death of the person affected thereby. the period of Iimitation for any suit or application.

Artc le 97 of ihe Limutation Act prov ides for the period to en torce a right of pre- cmption and is contained in the first divistOn of the schedule to the Limitation Act, 1963 which deals with suits.

43. In 1act. a pre-emptive righi is ordinarily enforced by way of a suit [vide Sk Moharnmed Ratiq vs Khalilul Rehman AIR 1972 SC 2162. Rampher vs. Ayodhya Singh AIR 192s Outh 369, Ramulal & Ors s Chisaram & On. appears trom Prem Singh & rs. vs. Jomder Sunyh & Ors: 1997 (10) sCC 19s that the right of pre-emption under the Punjab Pre-emption Act. 1913 is to be filed by making an application for pre-emption Significantly holding that the right of pre-emption in favour of Kingstolk was unconstitutional in Atamprakash vs. State of Haryana 219 the proceedings have been reterred to as suits [see also Rakjilal vs. Ghisaranm (supra)] 1996 (7) SCC 507]. It 1986 (2) SCC

44The distinction between "sut" and "application" do not appear to have ben argucd and as such not decided in the Kerala State lectricity Board. Irivandrunm s Kunhalliumma AIR 1977 SC 282 when it observed he changed definition of the words 'applicant' and application' contained in section 2a) and 2(b) of the 1963 Limitation At indicates the objecI of the Imtaton AcT to Include petitions, original or otlherwise. under special laws 45The appellant has exphasised the use of the word "orignal" n this serntence he Scntence cannot be construed as a statute [Se M/s Amar Nath Omprakash vs Sutc ol Punjab AlR 1985 SC 218: Gashet Radiators Pivate Limiled vs Lmployees Stale surance Corporation : 1985 (2) SCC 681. The observation must be read in the context of the issue which was being decided in that case. The only issue was whether Ariclc 7 applied to application which were not under the ode of Civil Procedure. he Supree Court held that Article 137 was not confined to applications under the Code his ratio has in lact been followed in several decisions eg The Additional Special T.and Acquisition Oflicer vs. Thanboredas AIR 1994 SC 2227.

46. In this background and conming more specifically to proceedings under section 8 ot the WBLRA, it s not in dispute that it is an original and independent proceeding initiated betore the Munsif whiclh culminates finally in his order. I does not matter that this tinal order is not called a decree. Merely because civil procecdings before Courts are normally conducted according to the Civil Procedure Code does not mean all civil proceedings must be so conducted or that the terminology of the Code should be seen as defining the nature of proceedings under other statutes. In any event a "decree" according to the Code mcans "the tormal expression of an adjudication which. so far as regards the Court expressing it. conclusIvely dctermines the rights of the parties with regard to all or any of the matters in cOntroversy n the suit"

47. The decision of the Munsif on the right of the applicant to claim preenption subject to appeal under sccuon 9, is tinal and in that sense is a decree.

48. In 1act an application under section 8 was treated as a suit in Debabrata Bhowmick vs Nani Bala Some: 83 CWN 82 (DB). The question whether an additional ground for pre- emption could be introduced in an application under secton 8 by way of amendment was resolved with reference to principles governing amendments of causes of actions in suits Allowing the application, il was said "When an application for amendment is made beyond the period of limitation, the Court is to consider whether by relusing such anendment an injustice will be made to the party seeking the amendment and also whether by granting such amendment an injury would be caused to the other side

49. 11ecton S of the Lmitat1on Act were applicable to applications under section 8 of the only consideration would have been whether the applicant had sulticient cause for not apply ng on the additional ground of preemption earlier

50. It was then said by the applicant that under section 8 every application pending before the Revenue Oticer after the commencement of section 7 of the West Bengal Land Reforms Act. 1972 (Amendment Act) stood transferred to and was to be disposed of by the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application is to be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of the WBLRA. as amended by the West Bengal Land Reforms (Amendment) Act. 1972. In was submitted that it is clear therefore that the application before the Munsif is nothing but the same application or nature of application betore the Revenue Officer. otherwise the phrase "Irom tlhe stage at which it was so transferred'" would not have been used Iu is said that this clenly proves that the said applicauon under sceton 8 is not a suit The subnission is misconceived. A proceeding may change its nature with the forum. For eample with the creation of Administrative Tribunals under the Adininistrative Tibunals Act. 1985 all pending proceedings including application under Aticle 226 covering matters over which the Tribunals had jurisdiction were transterred to the Tribunal of the Act The writ proceedings ceased to be applications under sceon under \rticle 2'n by sIch transler ( See

1. Chandra Kumar is Union of India: AlR I997

MA 97/2020 in SA UN Indeed i was argued by the appellant himelt that the provisions of the T iilaton Act no apply to proceedings under Seclon 8 because the Munsif is a Court. As already held civil proceedings before a Court can be a suit or application That being so. it would follow that section 8 ot the WBLRA will have to be construed to see vhich ol the provisions of the Lmitauon At apply to such proceedings or he reasons stated we hold that tlhe view enpressed by Chatterjec. J. in Minor Subir Rajan Mondal Vs. Sitanath Mukherje that section 5 does not apply to procecdings under secton S of the WBLRA tO a correct view and also hold that the view held by Guha. 1nhandra Sekh.r is Bndynath Ghoh (supra) does not correctly represent the aw. On the same analogy. the proceedings under Section 171 should also be treated as a suit and thus. Sectuon of the Limitation Act at least does not apply to sucl proceedngs although other relevant provisions of the said Aet may apply. So tar as the Division Bench decision of the Bombay ligh Court in the case of Uco Bank A Kan1 Mandii hothari & Co & Ors. reported in 2008() Bank CLR 773 is concered. which was strongly relied upon by Mr. Chatterjee. the learned senior advocatee appearng on behalf ot the writ-petitioner. we find that the Division Bench in the said case did not take note of the aforesaid decision of the Supreme Court in the case of (Gopa Sardar Vs. Karuna Sardar (supra) as also the point as to whether a prOCeeding under Section t 7(1) of the SARFAESI Act should be treated to be suit for thie purpose o application of Section s of the Limitation Act. Therefore, the said decision cannot be relied as a precedent in the facts of the present case. The Tearned Single Judge. as it appears from the order inpugned. turned down the resad point by placing reliance upon two Supreme Court decisions relied upon by Mr h.atterieeviz. Kerala Stte ecuicity Board P Kunthaliunma reported in AR 97 SC282 (Paragraph 21 of the report) and Asia Resorts I imnited vs. Usha Breco I ud reported in( 200) 8 SCC 710 (paragraph 18 of the report) In the case of Kerala State Electricity Board (supra). the question before the Supreme Court related to the period of limitation lor filing an application under Section 16 of the Telegraphs Act According to the Supreme Court. no period of limitation having been preerbed n the said Act. Arlicle 137 of the I imitation Act would be applicable. While rrngat such conclusion. the Supreme Court rejected the contention that Article 137 applied only to an application filed under the Code of Civil Procedure. According to the Apes Court. rticle 137 of the 1963 Limitation Act would apply to any petition or application filed under any Act to a civil court if no period of limitation was fined for such application under the said Act Their Lordships disagreed with the view taken by the two udge bench of that Court in Athani Municipal Council case reported in (1969) i ScC 873 and held that Article 137 of the 1963 I mitation Act was not con fined to applications contemplated by or under the Code of Civil Procedure. In the case before us. specific period of limitation is tised in the Act itself being 45 days and the Debts Recovery Tribunal i not a civil court as held by the Supreme Court in the case of Nahar Industril Fierprises Lid (supra) Therefore. the decision in the case of Kerala State Electricity Board (supra). is not at all applicable for the purpose of deciding the question whether son a of the Limitation Act would be applicable to a proceeding filed before a Tribunat w hich is not a civil court In the contest of a case where the proceedings were admittedly before a Civil Court. the Apex Court in paragraph 21 of the judgement observed that the changed definition of the words "applicant and "application" contained n ections 2as and 2b) of the 1963 Limutation Act indicated the object of the Limitation Atwas to include petitions. original or otherwise. under special laws. meaning thereby. that if ay application whethher original or interlocutor. is made under the Special La he fore an cnil court tor w hich no period of limitation is preseribed. the Article 137 of the Limitaion Act would be applicable for the purpose of deciding the period of limitation of that application. Their Lordships in that case had no occasion for deciding the question of maintainability of an application under Section s of the Limitation Act to an original prceeding betore a tribunal. v hich is not a civil court. and for which specific period of Timitation has been prescribed in the Special Law itself. In the cae fAa Resot Ltd (supra an app!lication under Sevtion 20 of the Arbitration Act was tiled before a learned Sngle Judge ot the High Court nlo held that the period of Imitation tor tiling such application is governcd by \itnle T i7 of the I imitaon Act and that in ien of ackno ledgenment made by the detendant within the meaning of Section I8 ofthe Act, the appication was not barred by lmitation (On appeal. the Division Bench of the igh Court overruled the said inding and held that there was no acknovledgement within the meaning of Scctuon T8 of the Timitation Act. and thus. dismissed the application as barred by lmitation The applicant under Section 20 of the Act approached he Supreme ourt and filed a Iresh application under Sectun S of the Linmitation Act for condonation of delav n tilin the applhcaion under Secun 20 and n such circumstances.

the Apex Court by relying upon the decision of Kerala State Electricity Board (supra). opined that Anicle 1 37 of the Act governed the period of lumitation and by rely ing upon a dvsio bench decision in the case of Union of ndia vs Vijay Construction Co. reported in AIR 1981 Del 193 held that Section 5 of the Limitation Act was also applicable lo such proccedings under Section 20 of the Arbitration Act. By taking a clue from the said decision. the learned Single Judge was of the opinion that a proceedings under Section 20 of the Arbitration Act is also an original proceeding and i Section 5 of the Limitation Act applies to such original procecdings there is no reason why it should not be made applicable to the original proceedings under Section17)o the Act With great respect to His Lordship. we are unable to subscribe to the said view for the follow ing reasons: His Lordship totally overlooked the faci that in the case of Asia Resorts (supra). the question betore the Supreme Court was whether Article 137 of the LmitatOn Act was applicable to a proceeding under Section 20 of the Arbitration Act and the Court answered hat question in affirmative. Thereafter, the Bench by relying upon the Division Bench decision of the Delhi High Court held that Section 5 of the Limitation Act was applicable to such proceeding and thus. allowed the said application; but there was no discussion as to whether Seetion 5 could be applicable to the original proceedings like the one under ccion 20 of the Arbitration Act which is treated as a suit. either in the said case. or n the Delhi deccision relied upon by the Supreme Court. The following observation in paragraph 18 of the Judgement of the Supreme Court is quoted below: "The appellant herein has filed an application under Section 5 of the Limitation Act praying that the delay in filing the application under Section 20 of the Act be condoned. Section 5 of the Limitation Act says any appeal or any application. other than the application under any of the provisions of Order 21 of the Code of Civil Procedure. 1908. may be adimitted after the prescribed period. if the appellant or the applicant satisfies the coun that he had suflicient cause for not preferring the appeal or making the application wilhin such period. The applicant can show sutficient cause for not filing the application in time. It appears that this Court had no occasion to consider whether Section 5 of the Limitation Act. 1963 could be applied in the case of an application to be filed under Section 20 of the Arbitration Act. 1940. The Division Bench of the High Court of Delhi in Union of ndiav. Vijay Construction Co.5 held that the benefit of Section S of the Lmitation Act can be availed by the applicant for an application under Section 20 of the Arbitration Act. Going by the provision contained in Section S of the Act. we are also of the view that in an appropriate case the cou1 can extend the benefit of the said section." The relevant portion of the judgement of the Delhi High Court dealing with the question of applicability of the Section 5 of the Act, apparently relied upon by the Supreme Court is also quoted below: "Mr. Kumar at this stage orally prayed for being given the benefit of Section 5 of the Limitation Act as, according to him. there was sulticient cause for filing the application late. He says that application under Scction 20 was filed on 4th September. 1978. in the bona fide belief that limitation would run from the date of the issue of the notice on 17th November. 1976. Considering that the learned single Judge has not only in the present case but in other cases also held the same View, we cannot say that the belief of the respondent was in any way unreasonable. The learned single Judge has already directed he appontment of the arbitrator as provided by the arbitration agreement. We may. however. note the concession which was made by Mr. Kumar regarding the claim which was filed along with the application. Mr. Kumar has stated that he does not intend to pursue claims Nos. 6 and 7. The same, therefore, may be deemed to be deleted from the list of claims. The dispute and the claim which the respondent is claiming will be now restricted to the clain1 filed by him except items 6 and 7 which stands deleted. We are not happy that the Government Agency. like the Railways. should deny the citizens right by taking the plea of mitation Governinental agencics should normally have the matter adjudicated on merits and succeed or tail on the justilication or otherw ise of the claim." Therefore. it is apparent. that in neither of those two deciSions, there was any question raised as to whether Section 5 should be applicable to a proceeding. which is treated as a suit, whereas such question was specifically dealt with in Gopal Sardar (supra). Therefore. in our view there w as no justification ol gnoring the decision of Gopal Sardar (supra) specifically deal1ng w ith the aforesaid qucstion by relying upon Asia Resort (supra). which Is. at the most. an autlhonty tor the poposition of law that Secuon 5 applies to a proceeding under Section ot the Arbitration Act although the question whether sechon S of the Act applies to a proccedings which is. in essence. a suit was not dealt with. The said decision is thus nota precedent for the proposition that Scction 5 applies to an application under Seton 17 of the Act belore the Iribunal Secondly, the learned Single Judge in the present case. in relying upon the aforesaid two decisions. did not follow the well-established principles of law that a decision is an authority for what it actually decides and not what can be logically deduced from it. In this connection we may appositely reler to the following observations of the Apex Court in the case ofRL Jain vs DDA reporned in (2004) 4 SCC 79 while dealing with the question of application ot a deciSion as a precedent: "It is well settled that a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made therein. (See Krishena Kumar v. Union of India, Municipal Corpn. of Dellhi v Gurnam Kaur and Orien1 Paper and ndustries Lid v. State of Orissa.)" Theretore, the learned Single Judge did not appreciate the specific law laid down in the case ofGopal Sardar vs. Karuna Sardar (supra). approving Serish Maji (supra). and erred in law in holding that Section under Section I7() of the Act by placing reliance upon the principles laid down in the decisions of the Apex court in the case of Kerala State Electricity Board and Asia Resorts Lid (supra) which have no application to a proceeding before the Tribunal. of the Limitation Act applies to a proceedings We have alread pointed out that the by virtue of he provisious contained in Sectio

177) of the SARFAESI Ac and Section 24 f the Recovery of the Debis Due tu Banks and Financial lnstitutions Aci, the provisions of the Linitution dd would "as far us may be" applicable but not all he provisions of the said Act. The legislature having conscioushy applied the provisious of the Limitation Aca "as far as may be" by canjoint elfeci o[ Sectiows 17(7) and 24 uf the two Speciul Acis, there is no scape of urther applicatian of Scction 292) of the Linitation Act o the procecdings before the Tribunal so us to apply Sections 4 to 29 thereof over ugain. Our aforesaid interpretation of Section 17) geis support from the intention of the legislature as recflected in the said Sectio1 itself vlhere in sub-section (5) ihereof, u time- limit of 60 days has been given _for the disposal of such application and according to b-section (6), il the upplicution is not disposed o[ by the Tribuna within 4 months, an party lo 1lhe application_mU nahe an_upplication, in uch forn1 as may be prescrilbed, to the Appellate Tribunal lor directing the Debis _Recover Tribunal for epeditious disposal of the upplication peeding hefore the Dehis Recovery Tribunal Therefore, there being specific tie-linmit of 45 days for invohiug the _original jurisdiction of Section 17 of the SARFAESI AcL which has been found to be, in essence, a suit and a furtlher_lentative time-linit of 60 days for disposal of the proceediugs, and giving a riglht to the parir 0 complain before the appellate forum for compliance of such provisions aleging violation ihereof ifot completed within four mwnths, it was ever lhe intentio! of ihe legislature to upply Sectivn 5 of the Limitution Act tosch original procecding _by giving pOver_t enlertain he_ upplication under Section J7(1) of the SARIALSI Aci by merely showing sufficient cause for the delay without pufting anr restrictin upon ihe Tribunal and we, therefore, hold that the time period of 45 days provided in Sectio 17 of the SARFAESI ACt which is original in muture cannot be extended by tuking uido/ Secion S of the Limitation At Once wee hold thui the proceediugy under Sca tion 7(1) uf the Act is like thaf ofa suit and tha the LimitationAd applies us fur us ay be applicable by virtue of Section

11) und 24 uf the wo Speciul Lavs, S n 29L O[ 1he Linmitution_ Ai has n0 application and thus, the various decisios citcd on behulf of the respandent by slhowing tihe applicabilit af Section 29) v1 ihe Limitation Aci cannot lhave uny application to the original proceedings like a uilbefore_ tribuual. The other_ provisions of he I imitatinn A for instance, Scctions 4, , 7, 9, 19, 11, 12, 14, 15, 16,17, /8 etc should, howeve, upply in uppropriate cases. 'e, herefore, hold that the leurned Single Judge erred in law in holdiug thar Sce tion Sof the Limitatiun Act applies to a procecding under Sectin 17 uf the SARFAESI ACL We. consequently. set aside the order impugned and hold that the learned Debts Recovery Tribunal righ1ly refused to condone the delay in filing the application under Section 17 of the SARFAESl Act belore it and any subsequcnt order passcd in the said proceedings are liable to be quashed for want of authority of the Tribunal to enter into the nnerit on condonation of de lay" On the basis of the above principle laid down by Hon'ble High Court. I find that provisions under Sec. 17(1) of SARFAESI Act is like that of a suit. reover this condone delay is also not properly explained by the applicant . Sec.5 of Limitation Act is not applicable under Sec. 17(1) of SARFAESI Act. On the basis of above discussion I dismiss this MA on contest. (Dictated to Steno, transcribed by her, corrected and pronounced by me in the open court on this 30th day of June, 2022) PRESIDING OFFICERR DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM