PRADEEP CHUGH Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) HEARD parties Counsel on application (I.A. No. 55/2013) filed by the appellant for condonation of delay in filing the accompanying appeal. No formal reply to the application has been filed by the respondent Bank. Though the appellant, in Clause (4) of the appeal memo, relating to the limitation, has stated that the appeal is within limitation as prescribed under the SARFAESI Act, yet in the application it has been stated that the appeal could not be filed within the stipulated time as the certified copies of the order impugned and other relevant documents could not be received by the appellant in time. Mr. Charak has submitted that after receiving the copy of the order and the relevant documents, the appellant had approached the Delhi State Legal Services Authority to get the appeal filed and in that process the prescribed period of limitation has expired. According to him, the delay was neither intentional nor deliberated. According to the office report, the appeal is time -barred by 26 days. It, however, appears from the record that the certified copy of the order impugned dated 26.11.2012 was ready on 3.12.2012 but its delivery was taken on 13.12.2012, as has been stated in Clause (4) of the appeal memo. The limitation period of 30 days, from the date of receipt of the order of the Tribunal below, was to expire on 12.1.2013, but the appeal has been filed on 21.1.2013 and as such there is a delay of 9 days in filing the appeal.

(2.) SO far as the question of condonation of such delay is concerned, this Tribunal has not been conferred with any power to condone the delay under the SARFAESI Act. The question whether or not this Tribunal is empowered to condone such delay under Section 5 of the Limitation Act was considered at length by a Division Bench of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. v. State Bank of India & Am.,, I (2013) BC 667=AIR 2011 M.P. 205. The High Court, while comparing Section 20 of the RDDBFI Act with Section 18 of the SARFAESI Act, having found that the period of limitation for filing an appeal under Section 18 has been reduced from 45 to 30 days with no discretion to condone the delay whereas the power to condone the delay has been given to the appellate Tribunal under the proviso to Section 20(3) of the RDDBFI Act, came to the conclusion that the Legislature has consciously decided not to confer the power to condone delay with the Appellate Tribunal under Section 18 of the SARFAESI Act. The High Court has also considered the application of Section 29(2) of the Limitation Act to the DRAT in the light of the observations of the Supreme Court in Fair Growth Investments Ltd. v. Custodian, : V (2004) CLT 156 (SC)=VI (2004) SLT 376=(2004) 11 SCC 472 and Hukumdev Narain Yadav v. L.N. Mishra, : AIR 1974 S.C. 480 and while observing that the Legislature has consciously excluded the applicability of the provisions of Sections 4 to 24 of the Limitation Act so far as they relate to Section 18 of the SARFAESI Act, ultimately held that the appellate Tribunal has no power to condone the delay in filing the appeal before it.

(3.) MR . Charak has also relied upon the judgment of the Bombay High Court in W.P. No. 3652 -12, Manilal Govindji Khona v. Indian Bank, decided on 29.8.2012, and upon the order dated 31.1.2013 of the Allahabad High Court on CM. Stay Application No. 29743/2013 in Writ -C No. 5367/2013, M/s. Kashyap Trading Company v. State Bank of India & Ors., in support of his submissions. Both the cited matters, however, do not relate to the present controversy qua the power of this Tribunal in respect of the condonation of delay in filing the appeal under the SARFAESI Act.