INDIAN OVERSEAS BANK Vs. DIGITAL AVENUE LTD.

JUDGEMENT

(1.) WHETHER the provisions of Sections 4 to 24 (inclusive) of the Limitation Act, 1963 was applicable to an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), 2002 fell for consideration in the revisional application.

(2.) THE order impugned herein was a rejection of an appeal filed at the instance of a bank against an order passed by the Presiding Officer, Debts Recovery Tribunal allowing an application under Section 17 of the SARFAESI Act, 2002 at the instance of an alleged debtor, on the ground that Sections 4 to 24 of the Limitation Act, 1963 had no manner of application to such appeal. In arriving at such finding the Appellate Tribunal relied upon the view to such effect expressed by the Madhya Pradesh High Court in All India Reported 2011 Madhya Pradesh page 205 (M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Ors.). The Appellate Tribunal also relied heavily on : 1974 Volume 2 Supreme Court Cases page 133 (Hukumdev Narain Yadav v. Lalit Narain Mishra) to return a finding that Section 5 of the Limitation Act, 1963 stood excluded in its application to an appeal under Section 18 of the SARFAESI Act, 2002 by implication. The Debts Recovery Appellate Tribunal did not follow the view expressed by the Andhra Pradesh High Court in the judgment reported at All India Reporter 2013 Andhra Pradesh page 24 (Smt. Sajida Begum v. State Bank of India, Hyderabad) on the ground that the Andhra Pradesh High Court did not consider Hukumdev Narain Yadav (supra).

(3.) THE petitioner claimed that, in view the ratio of the decision reported at : All India Reporter 2010 Calcutta page 138 (Akshat Commercial Pvt. Ltd. & Anr. V. Kalpana Chakraborty & Ors.) a proceedings under Section 17 of the SARFAESI Act, 2002 was an original proceedings and, therefore, the provisions of Section 3 of the Limitation Act, 1963 were attracted and, as such, such proceedings being initiated beyond 45 days from the date of the measures under Section 13(4) of the SARFAESI Act, 2002 being July 18, 2011, such proceedings were barred by limitation and, therefore, not maintainable. Apart from the point of limitation the petitioner contended that, the mortgage made by the opposite parties was valid and that, the issue of mortgage was also an issue for decision in the pending proceedings under Section 19 of the RDB Act, 1993.