Dr Nemala Rama Vara Sai Ram vs CANARA BANK on 27 February 2020

ORDER

The petition MA No. 145/2019 is filed by petitioner under section 17(1) of SARFAESI Act read with section 5 of Limitation Act to condone the delay of 58 days in filing the appeal, in the interest of justice.

2. According to the affidavit filed in support of the above petition, the case of the petitioner in brief is that petitioner is tenant into the property through lease deed dt: 01.01.2013 and land lord took loan from the respondent bank and respondent bank not considered petitioner being a protected tenant and being aggrieved by the actions of respondent bank approached Hon'ble High Court of AP vide WP and Hon'ble High Court of AP directed the petitioner to approach DRT and due to professional work and preoccupation, could not file the present appeal in time thereby causing delay of 58 days in filing the appeal and delay is neither willful nor wanton and therefore prayed to condone the delay of 58 days in file the present appeal.

3. Counter has been filed on behalf of respondent bank denying the averments made in the petition and further stated that the applicant cannot legally seek to condone the delay under section 5 of Limitation Act for the application filed under section 17 of SARFAESI Act; that DRAT has powers to condone the delay under section 5 of Limitation Act while entertaining appeal under section 18(1) of SARFAESI Act and no such powers can be exercised by DRTs under section 17(1) of SARFAESI Act in view of the judgment of Hon'ble Supreme Court in 2015(2) DRTC 310 (Supreme Court) and therefore the present MA is liable to be dismissed.

4 The point for consideration is whether the petitioner is entitled for condonation of delay of 58 days in filing the present SA as prayed for or not? Heard both sides. The Ld. Counsel for the Applicant submitted that the delay of 58 days is to be condoned and SA is to be numbered as there is no willful delay A handwritten signature in black ink, appearing to be "D. N. Rao" or similar, with a long horizontal line extending from the end of the signature.

in this matter by the petitioner. The Ld. Counsel for the Applicant further submitted that due to non service of notices under SARFAESI Act to the applicant and therefore the delay occurred and it is neither willful nor wanton and that this Tribunal has every right to condone the delay. On the other hand, the Ld. Counsel for the Respondent submitted that DRAT has powers to condone the delay under section 5 of Limitation Act while entertaining appeal under section 18(1) of SARFAESI Act and no such powers can be exercised by DRTs under section 17(1) of SARFAESI Act.

5. The point to be decided is whether the delay can be condoned or not, by applying Section 5 of Limitation Act. As per the decision of Hon'ble Supreme Court of India in the matter of BALESHWAR DAYAL JAISWAL Vs. BANK OF INDIA & OTHERS DATED 5-8-2015. In the above said decision, the point for consideration is whether under Section 18(1) of SARFAESI Act 2002 and under Section 20(3) of RDB Act where the Appellate Tribunal has the power to condone delay in filing an appeal under Section 18(1) and whether the Appellate Tribunal under SARFAESI Act 2002 was not a Court and therefore Section 29(2) of the Act 1963 was not attracted in this decision.

6. The Hon'ble Supreme Court has considered question whether the Appellate Tribunal under the SARFAESI Act, has power to condone the delay in filing an appeal under Section 18(1) of the said Act. The Hon'ble Supreme Court of India observed that Section 24 of RDB and FI Act makes Limitation Act applicable to an application made to a Tribunal. Section 36 of the SARFAESI Act makes period of limitation prescribed under the Limitation Act applicable to measures taken under Section 13(4). Thus, thereby, no exclusion of the Limitation Act. It is also further observed by the Hon'ble Supreme Court of India that provisions of Limitation Act can stand excluded not only by express provision of local or special Law. A scheme of SARFAESI Act by making the Limitation Act expressly applicable to measures under Section 13(4) of the Act impliedly excludes the said Acts from the appeals or other proceedings. In the same decision, the Hon'ble Supreme Court Held that " we have thus no hesitation in holding that the Appellate Tribunal under the SARFAESI Act has the power to condone the delay in filing an appeal before it by virtue of Section 18(2) of SARFAESI Act and proviso to Section 20(3) of the RDB Act".

7. In the above said decision, the Supreme Court approved the decisions of High Court of Andhra Pradesh in SAJIDA BEGUM Vs STATE BANK OF INDIA AIR 2013 AP 24 = MANU/AP/0546/2012 is based on applicability of Section 29(2) of the Limitation Act. 'In our view, Section 29(2) of the Limitation Act has no absolute application, as the statute in question impliedly excludes applicability of the provisions of A handwritten signature in dark ink, appearing to be 'W. B.' or similar initials, with a long, sweeping stroke extending from the right.

Limitation Act to the extent a different scheme is adopted. If no provision of Limitation Act was expressly adopted, it may have been possible to hold that by virtue of Section 29(2) power of condonation of delay is available. The Hon'ble High Court of Andhra Pradesh in SAJIDA BEGUM case in holding the Tribunal to be Court, has relied on Section 22 & 24 of the RDB Act. Section 22 vests powers of Civil Court on the Tribunal only for purposes mentioned therein, such as summoning witnesses, discovery and production of documents, receiving evidence, issuing commission for examining witnesses etc. and deems Tribunals to be courts for specified purposes'.

8. It is also further observed by Hon'ble Supreme Court of India that "we are also in agreement with the principle that even though Section 5 of the Limitation Act may be impliedly inapplicable, principle of Section 14 of Limitation Act can be held to be applicable even if Section 29(2) of the Limitation Act does not apply. Therefore, Hon'ble Supreme Court held that delay in filing an appeal under Section 18(1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20(3) of RDB Act read with Section 18(2) of SARFAESI Act. The Hon'ble Supreme Court overruled the judgments of Madhya Pradesh High Court in between SETH BANSHIDGHAR MEDIA RICE MILLS PVT LTD in which contrary view taken by the Madhya Pradesh High Court.

9. As per the above said decision, the Hon'ble Supreme Court has approved the decision of Andhra Pradesh High Court in between Sajida Begum Vs State Bank of India and Others. In the decision of Hon'ble High Court of Andhra Pradesh in between Sajida Begum Vs SBI in WP No.22317 of 2012 reported in AIR 2013 AP 24. As per this decision, it was observed in Para No.37 of the said decision that though " Section 17 of SARFAESI Act is styled as a right to appeal, it is, in fact, a forum for original proceedings against the security measures. Sub-section (7) of Section 17 provides that any application made under Section 17 of SARFAESI Act shall be disposed of in accordance with the provisions of the DRT Act and the Rules made there-under. Section 18 of SARFAESI Act provides a right to appeal to DRAT against orders of DRT passed under Section 17 of SARFAESI Act. Such appeal is also required to be disposed of in accordance with the provisions of the DRT Act and the Rules made there-under. In Para No.7, the Hon'ble High Court of AP in Sajida Begum vs State Bank of India that " the following provisions of the DRT Act may also be noticed. The DRT and DRAT are established under Section 3(1) and 8(1) respectively and the respective exclusive jurisdiction of the Tribunal or Appellate Tribunal are provided for under Section 17 of the DRT Act. In Para No.12 of the said judgment, the Hon'ble High Court observed that "we are of the view that Section 29(2) of the Limitation Act is clearly attracted and thereby Sections 4 to 24 of the Limitation Act would be applicable to the proceedings under Section 17 and 18 of the SARFAESI Act before the DRT as well as DRAT'.

10. In view of the above said observation of the Hon'ble High Court of Andhra Pradesh, the DRT has got power to condone the delay of the appeals filing under Section 17 of SARFAESI Act. Therefore, if Section 5 of the Limitation Act 1963 would made inapplicable to the application under Section 17(1) of the Act, it would virtually defeat valuable right of redemption available to the mortgagor.

However, application of Section 5 of the Act 1963 to the proceedings under Section 17(1) of the Act 2002 would neither defeat rights of secured creditor nor cause irreparable hardship to the secured creditor. Thus it would be more appropriate to made Section 5 of the Limitation Act 1963 applicable to the proceedings initiated under Section 17(1) of the Act 2002. Therefore, in view of the above said decision, I am of the opinion that the provision of Section 5 of Limitation Act would also applicable to the appeals filed under Section 17(1) of SARFAESI Act and I am of the further opinion that this Tribunal by invoking Section 5 of Limitation Act and by applying principles laid down in the above said decisions, can condone the delay in filing the above said SA. On perusal of the petition averments, the petitioner stated that the delay occurred for filing SA due professional reasons and preoccupation. However, A handwritten signature in dark ink, appearing to read "Dwee" or similar, with a long horizontal stroke extending to the right.

in the interest of justice, it would be just and necessary to give an opportunity to the petitioner to contest his case and to redress his grievances as stated in the petition, the delay can be condoned. Therefore, I am of the opinion to allow the petition by condoning the delay of 58 days in filing the SA.

In the result, MA No.145/2019 is allowed however without costs and the delay of 58 days in filing the SA is hereby condoned. The Registry is directed to number the SA if otherwise is in order.

Let the copy of the order be made available to the parties as per rules. [Typed to the dictation, corrected and pronounced by me in the open court on this 27^th day of February, 2020]

27/2/20 PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM