NITEESH KUMAR SINGH, S/O LATE OM PRAKASH SINGH Vs. UNION OF INDIA THROUGH SECRETARY, BANKING DIVISION, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI

JUDGEMENT

(1.) The present writ petition has been filed for the following reliefs -

(2.) The short facts of the case according to the petitioners, who are the son and wife of the borrower, Om Prakash Singh (now deceased), are that the latter had taken housing loan/mortgage loan of Rs. 4 to 5 lacs from various banks such as, Syndicate Bank, Gaya Branch, Canara Bank, Gaya Branch, State Bank of India, Main Branch, Gaya, State Bank of India, Bazar Branch, Gaya as well as Allahabad Bank, Gaya by mortgaging the dwelling house in which the borrower as well as the petitioners had a share and in which they were residing. SARFAESI proceedings were initiated by the respondent-UCO Bank and finally the mortgaged property came to be auction sold on 27.05.2016. The petitioners filed S.A. No. 209 of 2016 before the Debts Recovery Tribunal (for short 'the DRT') on 30.11.2016, claiming that notices under Sections 13(2) and 13(4) of the SARFAESI Act has not been served. A limitation petition under Section 5 of the Limitation Act was also filed by the petitioners on the ground that the respondent-bank supplied details of the auction proceeding to the petitioners by e-mail dated 01.10.2016, thus claiming a delay of about 15 days in filing the SARFAESI Appeal and seeking condonation thereof. The DRT however dismissed the petitioners' S.A. No. 209 of 2016 along with the limitation petition, holding that there was suppression of material fact as they had not disclosed the fact that they had filed an affidavit dated 29.07.2016 in S.A. No. 82 of 2016 (which had been preferred by the Syndicate Bank). It was thus observed that the petitioners had deliberately avoided SARFAESI action and had filed SARFAESI Appeal after a delay of more than four months without showing sufficient cause for such delay. The petitioners then filed a review application in R.A. No. 02 of 2017 before the DRT, submitting that there was no suppression of material facts and sought for recall/review of the DRT order dated 09.01.2017 passed in S.A. No. 209 of 2016 and to restore the same to its original file. The DRT however, by its impugned order dated 01.09.2017 held that there was no provision for review of its judgment passed in the SARFAESI application and hence the review application was not maintainable, which was accordingly dismissed.

(3.) Learned counsel for the petitioner submits that the DRT has committed an error of law in failing to appreciate the true import of the legal provisions which duly empower it to exercise the power of review. It is submitted that Section 17(7) of the SARFAESI Act, 2002 (hereinafter referred to as 'the SARFAESI Act') adopts the provisions of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (rechristened the Recovery of Debts and Bankruptcy Act, 1993, and hereinafter referred to as 'the RDB Act') and the Rules framed thereunder for disposal of the SARFAESI application. In this regard Section 22 of the RDB Act provides the powers and procedure of the DRT as well as the Debts Recovery Appellate Tribunal (hereinafter 'the DRAT'). The powers of the Civil Court as enumerated in Section 22(2)(a) to (h) which, inter alia, includes "(e) reviewing its decisions" have been afforded thereunder. The Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as 'the 1993 Rules") provides the procedure to be followed by the DRT, Rule 5-A whereof specifically deals with review of an order of the Tribunal on account of some mistake or error apparent on the face of the record. It is therefore, submitted that these procedures applicable to the DRT under the RDB Act have been adopted for the purpose of SARFAESI Act which include the power of review by the DRT. Reliance is placed on an order dated 18.01.2017 passed by the Hon'ble Calcutta High Court in W.P. No. 27330(W) of 2016 (Bangla Bijuli Power Technologies Private Limited vs. The Authorized Officer, I.D.B.I. Bank Limited, Kolkata and Ors.) holding that the DRT would have the power to review its judgment.