VINU THOMAS Vs. SOUTH INDIAN BANK LIMITED

JUDGEMENT

(1.) The petitioner has approached this Court challenging Ext.P2 order passed in an un-numbered Securitisation Application, rejecting the Securitisation Application on the ground that it is barred by limitation. The undisputed facts are that the Chief Judicial Magistrate Court, Ernakulam, had issued an order under Sec. 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), for taking physical possession of the secured asset. The Advocate Commissioner had issued a notice on 29/7/2022, requiring the applicant to handover the vacant possession of the property within a period of 14 days. Pursuant to the said notice, the petitioner filed a Securitisation Application under Sec. 17 of the SARFAESI Act on 14/9/2022, and the same has been rejected on the ground that the Securitisation Application was not filed within a period of 45 days from 29/7/2022. According to the Tribunal, the application was delayed and was out of time by two days.

(2.) The learned counsel appearing for the petitioner states that the period of limitation cannot be counted from 29/7/2022. It is submitted that even on the completion of 14 days from 29/7/2022, the petitioner has a cause of action to file the Securitisation Application, as the threat of dispossession is imminent. It is submitted that the taking of physical possession of the secured asset is a cause of action in itself and therefore, the Tribunal ought not to have mechanically decided that cause of action arose on 29/7/2022 and not thereafter. It is submitted that the limitation would not commence from the date of issuance of notice by the Advocate Commissioner. It is contended that, in the present case, there is a continuing cause of action.

(3.) The learned counsel appearing for the respondent Bank submits with reference to the judgment of the Supreme Court in Varimadugu Obi Reddy v. Sreenivasulu, 2022 (6) KLT OnLine 1125 (SC), that Ext.P2 order is an appealable order under Sec. 18 of the SARFAESI Act and therefore the petitioner cannot seek to bypass the statutory remedy and approach this Court under Article 227 of the Constitution of India. It is submitted that the period of limitation would commence from 29/7/2022 and the petitioner was clearly out of time by two days to file the Securitisation Application. He contended that the petitioner should have filed the Securitisation Application on or before 12/9/2022, but the same was filed only on 14/9/2022. It is also submitted that the liabilities of the petitioner are huge. He does not dispute the fact that on the Advocate Commissioner actually taking possession of the secured asset, the petitioner will have a cause of action to approach the Tribunal. In other words, according to the respondent Bank, on physical possession being actually taken, an application could be filed within 45 days from the date of taking possession.