(1.) Taken up for hearing by consent of learned Advocates appearing . Heard submissions. This Writ Petition is preferred in respect of an order dated 5 th January 2011 passed by Debts Recovery appellate Tribunal , Mumbai and an order dated 17th March 2009 passed by Debts Recovery Tribunal, Nagpur whereby it is held that the provisions of Limitation Act are applicable to an appeal under Section 30 of the Recovery of Debts Due to Banks and financial Institutions Act ( Briefly referred as RDDBFI Act ). The question raised is as to whether the provisions of section 5 of the Limitation Act or its principles are applicable to appeal filed under section 30 of the RDDBFI Act.
(2.) The facts which gave rise to filing of the writ petition may be summed as under: The Petitioners are owners of Apartments in the building known as 'Jupiter Complex' Situated at Vaishali Nagar, Binaki, Nagpur. The Petitioners claim that they were handed over possession of their respective apartments in the building pursuant to an agreement for sale of undivided share in the land and building construction executed in the year 1987.The respondent Central Bank of India , on the ground that the borrower had executed the mortgage of the plot along with the structure of the open foundation in its favour on 14/05/1997 to enforce recovery certificate had put the property for sale through DRT , Nagpur The Petitioners on or about 3/3/2004 filed an application/objection under Rule 11 and 15 of the second schedule of the Income Tax Act, 1961 and other enabling provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI Act) for release of attachment and cancellation of proposed Sale. On 29/03/2005 the Recovery officer, DRT Nagpur passed a common order whereby the objection of the Petitioners was accepted on the ground that the Petitioners legally possessed the Apartments much prior to the Mortgage and the so called Mortgaged property did not exist in the form of description given in the Mortgage deed .Thus it was held that the said property was not liable to be sold .The respondent bank challenged the order passed by the recovery Officer in the DRT , Nagpur by filing an Appeal under Section 30 of the RDDBFI Act along with an application for condonation of delay of 74 days in filing the Appeal with reference to section 5 of the Limitation Act. DRT, Nagpur had allowed the application for amendment of Appeal and for condonation of delay, impleading the Petitioners as respondents in the appeal as well as in the application for condonation delay in filing the Appeal. The Petitioners contested the application filed under section 5 of the Limitation Act for condonation of Delay on the ground that section 5 of the Limitation Act is not applicable to the appeal filed under Section 30 of the RDDBFI Act and therefore no period of delay can be condoned .On 17/03/2009 the DRT , Nagpur passed an order holding that provision of section 5 of the Limitation Act is applicable to an appeal file under section 30 of the RDDBFI Act. Upon challenge the DRAT , Mumbai upheld the order passed by the DRT , Nagpur, on the ground that the definition of the term "application" provided in the Rules , which includes an Appeal under Section 30, can be considered even though the "application" defined by the Act defines it as an Application under Section 19 i.e. original proceedings (and not an appeal under Section 30 of the RDDBFI Act).
(3.) It is contended on behalf of the Petitioners that the impugned Judgment is contrary to the provisions of the RDDBFI Act as it is self contained Code providing for the remedy of Appeal as also the period of limitation within which the Appeal has to be filed. The provisions of the Limitation Act ,1963 shall apply, as far as may be, to the application made to the Tribunal .According to the Petitioners the "application" defined in Section 2(b) of the RDDBFI Act means an application made to Tribunal under Section 19 of the RDDFBI Act. Thus it is implied that the Limitation Act is applicable only for filing the original application under section 19 of the RDDFBI Act. In view of section 29 (2) of the Limitation Act , section 5 of the Limitation Act can not be made applicable to the appeal filed under section 30 of the RDDBFI Act in as much as there is no proviso mentioned in Section 30 similar to the proviso of section 20 for to entertain an appeal from the order of the Tribunal to the Appellate Tribunal even after expiry of the period of Limitation upon satisfaction as to sufficient cause for not filing an appeal within period of limitation prescribed in Section 20 of the RDDBFI Act. The learned advocate for the Petitioners therefore making reference to section 19, 20 and 30 of the RDDBFI Act submitted that the provision of section 5 of the Limitation Act is excluded by the said Act to the appeal filed under Section 30 of the RDDBFI Act in terms of Section 29 (2) of the Limitation Act, 1963.The contradictory definition of the "application" appearing in Rule (under the Rules framed under the RDDBFI Act) can not override the definition of the term "application" in Section 2(b) of the RDDBFI Act. It is thus submitted that the DRT and DRAT committed error of law which is apparent and manifest. It is submitted that the legislature having regard to expeditious disposal of Appeals under Section 30 of the RDDBFI Act, did not intend to give benefit of section 5 of the Limitation Act to the filing of Appeal under section 30 of the RDDBFI Act, consciously by not making a specific provision as made for the applicability of section 5 of the Limitation Act in cases of Application under Section 19 and 20 of the RDDBFI Act.