Calcutta High Court (Appellete Side)
For The vs Kalpana Chakraborty & Ors. Has Laid Down ... on 27 January, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
8.
1.2012 C.O.2427 of 2011
Mr. Partha Sarathi Basu
Mr. Ganesh Chandra Chakraborty
...for the Petitioners
Mr. Siddhartha Banerjee
Mr. Victor Dutta
...for the Opposite Parties
The petitioners are aggrieved by the judgment dated 24.6.2011
passed by the Debts Recovery Appellate Tribunal at Kolkata (hereafter "the
Appellate Tribunal") dismissing Appeal No.51 of 2010 that was preferred by
them. The appeal was directed against order dated 13.7.2009 of the Debts
Recovery Tribunal No.-II, Kolkata (hereafter "the DRT"). The DRT had
dismissed the petitioner's application under Section 17(1) of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 on the ground that the same was barred by
limitation. In the process, the DRT also returned a finding of fact that the
notice under Section 13(4) of the Act had not been issued prior to expiry of
60 (sixty) days from date of receipt of the notice by the petitioners under
Section 13(2) thereof, as alleged.
To appreciate the point as to whether the DRT was right in
dismissing the application under Section 17 (1) of the Act or not, certain
facts need to be noticed.
The petitioners were served with notice issued by the opposite
parties proposing to take measures under Section 13 (4) of the Act on
2
7.5.2007. They did not approach the DRT within 45 (forty-five) days from
date of service of such notice. Instead, on 5.7.2007, the petitioners presented
a writ petition before this Court registered as W.P. 14603 (W) of 2007
questioning the propriety of the said notice dated 7.5.2007. The writ petition
was taken up for consideration by a learned Judge of this Court on
5.3.2008. Upon perusal of the materials on record, the learned Judge was
pleased to opine that the opposite parties, being the respondents in the said
writ petition, had the authority to take steps in accordance with the provisions of law and hence, it is not necessary to interfere. The writ petition stood dismissed with liberty to the petitioners to take steps in accordance with the provisions of law before the appropriate forum for appropriate order.
The application under Section 17(1) of the Act was thereafter filed by the petitioners on 26.3.2008. The DRT having been approached under Section 17(1) of the Act beyond 45 (forty five) days from 7.5.2007 and such time period being non-extendable, the application came to be dismissed as time barred.
Mr. Basu, learned senior advocate appearing for the petitioners, contends by referring to paragraph 19 of the revisional application that the DRT was not functioning regularly prior to 7.5.2007 and even thereafter; hence, the petitioners could not lay any challenge to the notice issued under Section 13(4) before it and they had no other option but to seek remedy before the writ Court.
It is also contended by him that the application under Section 17(1) of the Act having been preferred within 45 (forty five) days of dismissal of the writ petition, the same ought to have been treated to have been filed 3 within time. Alternatively, it is contended that they were entitled to the benefit of Section 14 of the Limitation Act. In support of the submission that the petitioners are entitled to the benefit of Section 14 of the Limitation Act, Mr. Basu places reliance on the following decisions:
1) A.I.R. 1975 Cal. 203;
2) (1975) 4 SCC 628;
3) A.I.R. 1985 SC 1669;
4) (2008) 7 SCC 169;
5) 2010 (4) CHN (Cal.) 999; and
6) A.I.R. 1958 SC 767.
I have heard Mr. Basu and considered the decisions cited by him. I may place on record that opportunity was given to the petitioners to liquidate the dues but inability was expressed on their behalf and the Court was requested to give its decision on merits.
It also requires to be placed on record that having perused the averments made in paragraph 19 of the revisional application on the earlier occasion, I had called for a report from the Presiding Officer of the DRT on the following points:
1) Whether between 7.5.2007 and 6.7.2007, there was any vacancy in the office of the Presiding Officer of the Tribunal No-II or not?
2) If Yes, whether any other Presiding Officer of the DRT was given charge of Tribunal No.-II during the aforesaid period?
3) Even if there was a vacancy, as alleged, whether such vacancy per se was a ground for the office of the Tribunal No.-II not to accept any 4 application proposed to be filed by any borrower or aggrieved party against the action taken by any secured creditor under Section 13(4) of the Act? If indeed applications under Section 17(1) of the Act had been filed by aggrieved parties during the aforesaid period, the particulars of the same may be provided.
It would be convenient to set out the response that has been received from the Presiding Officer of the DRT, reading as under:
1) Sri Satish Kumar demit the charge of post of Presiding Officer on regular basis with effect from 25.01.2006.
Thereafter there was no regular full time Presiding Officer for this Tribunal, till 16.09.2007.
So there was a regular vacancy in the office of the Presiding Officer of this Tribunal between the period 7.5.2007 & 6.7.2007.
2) Sri D. C. Thakur Presiding Officer on regular basis for DRT-3 Kolkata was given additional charge of this Tribunal with effect from 27.01.2006 till 02.06.2007(AN).
Sri Thakur on completion of his tenure demit the charge of the post of Presiding Officer from DRT-3 Kolkata as also from this DRT with effect from 2.6.2007 afternoon.
Thereafter Dr. S.D. Singh Presiding Officer on regular basis from DRT I Kolkata was given additional charge of Presiding Officer of this tribunal and he joined this Tribunal on 12.07.2007 till 16.09.2007.
3) Even though there was a vacancy, however, such vacancy was not a ground for not accepting any application under Section 17(1) of the Act. In fact filing and registration of application continues irrespective of vacancy position in the post of Presiding Officer in the Tribunal.
A list of applications under Section 17(1) of the Act filed by the aggrieved parties during the period from 7.5.2007 to 6.7.2007 are enclosed at Annexure -A (Xerox copy of the relevant pages of the suit register of applications filed under Section 17(1) are enclosed.
Furthermore, a list of such matters under Section 17(1) of the Act whose hearings were conducted before the Ld. Presiding Officer during the period from 7.5.2007 to 6.7.2007 are also enclosed at Annexure -B. 5 It is clear that although there was no Presiding Officer in charge of the DRT from 2.6.2007 till 12.7.2007, yet, that did not stop prospective applicants from approaching it for filing their applications under Section 17(1) of the Act. The annexures to the report of the Presiding Officer of the DRT bear ample testimony that its office had indeed been receiving applications, as and when filed and hearing was also conducted. The contention of the petitioners that the DRT remained non-functional to a large extent and hence they were prevented from approaching it, does not, therefore, commend to me to be worthy of acceptance.
Much emphasis has been laid by Mr. Basu on Section 14 of the Limitation Act and the last paragraph of the order of the writ Court dated 5.3.2008 granting liberty to the petitioners to take steps in accordance with the provisions of law. According to Mr. Basu, the entire period during which the writ petition was pending ought to be excluded for the purpose of computation of the period of limitation. Therefore, the DRT having been approached within 3 (three) weeks from date the writ petition stood dismissed, the DRT fell in error in rejecting the application as time barred.
It does not appear from the order dated 5.3.2008 passed by the learned Judge of the writ Court that any direction had been given to the DRT to entertain the application under Section 17(1) of the Act, if an approach is made within 45 (forty five) days thereof. If indeed such a direction were given, the same would be in excess of the Court's jurisdiction for no Court can extend the period of limitation.
In so far as the provisions regulating the conduct of proceedings before the DRT is concerned, the Hon'ble Division Bench of this Court in its 6 judgement reported in AIR 2010 Calcutta 138 : Akshat Commercial Pvt. Ltd. & anr. Vs. Kalpana Chakraborty & ors. has laid down the law that a proceeding under Section 17(1) of the Act is an original proceeding and in essence a suit, and any proceeding initiated beyond 45 (forty five) days of steps taken under Section 13(4) of the Act by the secured creditor would be time barred and the delay in approaching the tribunal having jurisdiction cannot be condoned by applying Section 5 of the Limitation Act, since it was never the intention of the legislature.
In view of such decision of the Hon'ble Division Bench, the DRT was under an obligation to ascertain as to whether it had been approached by the petitioners within 45 (forty five) days of receipt of the notice under Section 13(4) of the Act or not. Even the writ Court was approached by the petitioners beyond 45 (forty five) days of such receipt. Dismissal of the application on the ground that the same is time barred, cannot, therefore, be faulted.
This now takes me to the question of applicability of Section 14 of the said Act. In my view, the petitioners could have been entitled to take the benefit of Section 14 of the Limitation Act had the writ Court been approached within 45 (forty five) days from date the notice under Section 13 (4) of the Act was served on them. Once the petitioners allowed the statutory period of 45 days to expire, even if they had taken steps to move this Hon'ble Court in its writ jurisdiction on the advice of their learned advocate in good faith, that would not cure the defect of not approaching either the DRT or the writ Court within the period of 45 (forty five) days of Section 13(4) action. None of the decisions cited by Mr. Basu lay down the law that Section 14 7 would be attracted even if the aggrieved party had approached the Court of incompetent jurisdiction beyond the period fixed by law within which the competent forum were to be approached. The decisions being distinguishable do not have any application in the facts and circumstances of the present case.
In the result, I do not see any reason to hold that the DRT or for that matter the Appellate Tribunal had erred in the exercise of their respective jurisdiction in holding the application under Section 17(1) of the Act to be barred by limitation.
The revisional application is devoid of any merit. The same stands dismissed without costs. Interim order, if any, stands vacated.
Dismissal of the revisional application, however, shall not preclude the petitioners to approach the DRT in future, according to law, if occasion therefor arises in respect of any cause of action subsequent to steps taken under Section 13 (4) of the Act.
Records of W.P.14603 (W) of 2007 shall stand detagged. Mr. Basu, prays for stay of operation of the order. The prayer is considered and refused.
Urgent certified photostat copy of this order if applied for, be supplied to the parties expeditiously.
(DIPANKAR DATTA,J.)