STATE BANK OF PATIALA Vs. BALBIR SINGH

JUDGEMENT

(1.) HEARD parties' Counsel. The present appeal impugns the order dated 1.2.2012 passed by the Presiding Officer of DRT - I. Chandigarh, whereby the application (LA. No. 82/2006) filed by the 1st respondent herein for condonation of delay was disposed of with the observation that the Second Appeal being filed within 45 days of the date of receipt of the copy of the order of the High Court, was within limitation. It appears that the appellant Bank had sanctioned certain credit facilities to M/s. Prince Industries in 2002, but since the borrower failed to maintain financial discipline, the account was declared as Non Performing Asset (NPA) and the appellant Bank took measures under the SARFAESI Act. After serving demand notice under Section 13(2) thereof, the Bank took action under Section 13(4) of the said Act and the secured asset was duly put to sale by way of auction on 21.3.2005. Respondent No. 3, being the highest bidder, purchased the property in question. Thereafter, notice dated 5.4.2005 was issued to respondent No. 1 for handing over the possession of the property in question to the auction purchaser. Respondent No. 1 challenged the said notice before the Hon'ble Punjab and Haryana High Court by filing Civil Writ Petition No. 6292/2005 wherein further proceedings were stayed on condition of payment of certain amount and the said writ petition was finally disposed of by order dated 15.12.2005 with a direction that in case the petitioner chooses to avail of the statutory remedy, the period of limitation as prescribed under Section 17 of the SARFAESI Act would commence from that day, i.e., 15.12.2005. Thereafter, respondent No. 1 filed the concerned Second Appeal on 10.2.2006 before DRT -I, Chandigarh, in respect thereof the Registry raised objection of being barred by limitation. The appellant, thereafter, filed application (LA No. 82/2006) for condonation of delay, which has been disposed of by the impugned order, as mentioned above.

(2.) MR . S.N. Relan, appearing on behalf of the appellant Bank, points cut that instead of challenging the action of the Bank before the Tribunal below under Section 17 of the SARFAESI Act, the respondent No. 1, filed the writ petition before the High Court, wherein the Hon'ble Court, while finally disposing of the writ petition, had extended the period of limitation for availing the statutory remedy under the said section by observing that the period of limitation would commence from today, i.e., the date of order (15.12.2005). He submits that on computing the period of limitation of 45 days from that date, the Second Appeal was time -barred by 11 days and the Registry of the Tribunal had rightly raised the objection of limitation. He further submits that in his application (LA. 82/2006) the applicant had himself admitted that a delay of 11 days had occasioned in filing the Second Appeal, but against this averment, it was contended that the Second Appeal was filed within the period of limitation as the same was filed within 45 days from the date of the receipt of the certified copy of the order dated 15.12.2005 of the Hon'ble High Court. Mr. Relan points out that certified copy of the High Courts order was received on 16.1.2006 and the SA was filed on 10.2.2006. According to him the learned Tribunal below has erred in computing the period of limitation from the date of receipt of the certified copy of the order, which was prepared on 25.12.2005 and could have been obtained on 2612.2005 but it was obtained on 16.1.2006. and even on computing the period of limitation from 26.12.2005 the Second Appeal was time -barred by two days. He further submits that the learned Tribunal below has not considered the cause of delay and has disposed of the application by wrongly observing that as the Second Appeal has been filed within 45 days from the date of the receipt of the order of the Hon'ble High Court, it was within the period of limitation.

(3.) SECTION 17(1) of the SARFAESI Act provides that any person, aggrieved by any measure taken under Section 13(4) thereof by the secured creditor, may make an application to the DRT within 45 days from the date of taking of such measure. Admittedly, measure for taking possession of the secured asset was taken by issuing notice dated 5.4.2005. Since no application was made qua that measure before the DRT under the said section and it was challenged in the Writ Petition before the High Court, therefore, the Hon'ble Court had given liberty to the petitioner for seeking the statutory remedy and had said on 15.12.2005 that the period of limitation would commence from the date of order. The order was passed in the presence of the petitioner's Counsel, as is evident from the order (page 29 of the appeal). The application under Section 17 of the said Act should, therefore, have been filed within 45 days from 15.12.2005. There is no dispute that the Second Appeal has not filed within the said period and has been filed on 10.2.2006, i.e., 11 days after the expiry of 45 days from 15.12.2005 The period of limitation could not be computed from the date of the receipt of the certified copy of the order, as has been done by the learned Tribunal below. Even assuming that the Second Appeal could not be filed without obtaining the certified copy of the order of the High Court, but since it could have been obtained on 26.12.2005, therefore, the applicant was at fault in not receiving the copy of the order well in time. No cause has been shown as to why the certified copy was not obtained prior to 16.1.2006. The period of limitation could be computed only from 15.12.2005 as per order of the High Court, and not from 16.1.2006, as has been done by the learned Tribunal below. As the applicant/respondent has failed to show sufficient cause of delay in filing the Second Appeal in time, the application for condonation of delay is liable to be dismissed and the impugned order is liable to be set aside. Consequently, the appeal is entitled to be allowed and the same is accordingly allowed. The impugned order dated 1.2.2012 is set aside and the application for condonation of delay (LA. 82/2006) is accordingly dismissed. No order as to cost.