SUSHILA DEVI BANSAL Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) HEARD Mr. Garg on application (I.A. No. 26/2012) filed under Section 5 of the Limitation Act read with the provisions of the SARFAESI Act and rules, by the appellant for condonation of delay occurred in filing the appeal. None is present for the respondent Bank despite the matter is being taken up on the revised call after the pass over on the first call. Mr. Garg points out that there is a delay of only three days in filing the appeal, which had occasioned as the Counsel for the appellant was suffering from high fever on 23.12.2011, when the appeal against the order dated 23.11.2011 should have been filed, but since 24.12.2011 and 25.12.2011 being Saturday and Sunday were holidays, the appeal could be filed on 26.12.2011. He also contends that the delay was neither deliberate nor intentional but was with a bona fide reason.

(2.) HE also points out that in a recent judgment rendered on 4.9.2012 by the Andhra Pradesh High Court in I : (2013) BC 24: Writ Petition No. 22317 of 2012, Smt. Sajida Begum v. State Bank of India, SARC Nampally, Hyderabad, the Division Bench of the Court, while observing that the decision of the Madhya Pradesh High Court in M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Anr., I : (2013) BC 667 : AIR 2011 MP 205, is contrary to the ratio of the judgment of Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboo -backer, : AIR 1995 SC 2272, has held that it does not lay down correct law. He also points out that the Andhra Pradesh High Court has further held that Section 29(2) of the Limitation Act is clearly attracted and thereby Sections 4 to 24 (both inclusive) of the Limitation Act would be applicable to the proceedings under Sections 17 and 18 of the SARFAESI Act before the DRT as well as DRAT and as such the DRAT has power under Section 5 of the Limitation Act to condone the delay in filing the appeal under Section 18 of the SARFAESI Act.

(3.) IN M/s. Seth Banshidhar Kedia Rice Mill's case (supra) the Division Bench of the Madhya Pradesh High Court, while comparing the provisions of the RDDBFI Act and the SARFAESI Act, more particularly Sections 18 of the SARFAESI Act and Section 20 of the RDDBFI Act, has found that the period of limitation for filing an appeal under Section 18 of the SARFAESI Act has been reduced from 45 to 30 days with no discretion to condone the delay, whereas, power to condone the delay was given to the Appellate Tribunal under the proviso to Section 20(3) of the RDDBFI Act and 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 Hon'ble 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 Apex Court made in the cases of Fair Growth Investments Ltd v. Custodian, IV ( : 2004) CLT 156 (SC) : VI (2004) SLT 376 : (2004) 11 SCC 472 and Hukumdev Narain Yadav v. L.N. Mishra, : AIR 1974 SC 480 and while observing that the Legislature has consciously excluded the applicability of the provision 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 under the said section.