Karnataka High Court
Sri V Thulasiram vs The Authorised Officer on 12 March, 2026
®
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WP No. 20193 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 20193 OF 2025 (GM-DRT)
BETWEEN:
1. SRI V.THULASIRAM
S/O VISHWANATH,
AGED ABOUT 53 YEARS,
R/A NO.53 LAKSHMIPURAM,
1ST MAIN ROAD, HALASURU,
BENGALURU
KARNATAKA - 560 008
2. SMT.BHUVANESHWARI,
W/O V.THULASIRA,
Digitally signed
by SUVARNA T AGED ABOUT 46 YEARS,
Location: HIGH
COURT OF R/A NO.53 LAKSHMIPURAM,
KARNATAKA
1ST MAIN ROAD, HALASURU,
BENGALURU,
KARNATAKA-560 008
...PETITIONERS
(BY SRI.D.R.RAVISHANKR, SENIOR COUNSEL FOR
SMT.SIRI RAJASHEKAR, ADVOCATE)
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AND:
1. THE AUTHORISED OFFICER
CANARA BANK,
MAGADI ROAD II BRANCH,
NO.46, MAGADI MAIN ROAD,
BESIDE ANJAN CUMEMAS,
BENGALURU,
KARNATAKA -560 023
2. SRIRAM APPADURAI,
S/O V SRIRAM,
AGED MAJOR,
NO.1/8, VAIDYANATHA,
VIJAYAM, ARTILLERY ROAD,
ULSOOR, BENGALURU,
KARNATAKA-560 008
...RESPONDENTS
(BY SRI.VIGNESH SHETTY, ADVOCATE FOR C/R1
SMT.APARNA N., ADVOCATE FOR
SMT.BHAVANA G.K., ADVOCATE FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER IN IA NO. 2576/2024 FILED IN SA NO. 597/2024
DATED 28.03.2025 PASSED BY THE DEBTS RECOVERY
TRIBUNAL-1 VIDE ANNEXURE -A.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 10.11.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
The present writ petition is filed seeking the following
prayer:
"PRAYER
WHEREFORE, the petitioner most humbly prays that
this Hon'ble court be pleased to:
a) ISSUE A writ of appropriate nature to set aside the
order in IA.No.2576/2024, filed in SA.No.597/2024,
dated 28.03.2025 passed by the Debts Recovery
Tribunal-1 vide Annexure-A; and
b) PASS such other orders as may be deemed
appropriate in the ends of justice and equity."
2. It is the case of the petitioners that the petitioners had
filed SA.No.597/2024 on 19.11.2024 seeking to quash/set
aside the sale notice dated 17.08.2024 by declaring it as illegal
and void ab initio on the ground that measures initiated by
respondent No.1 is in violation of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as 'Act'). The
petitioner also filed I.A.No.2576/2024 on 19.11.2024 under
Section 5 of the Limitation Act, 1963 read with Section 24 of
the Recovery Debts and Bankruptcy Act, 1993 praying to
condone the delay of 49 days in filing SA.No.597/2024 under
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Section 17(1) of the SARFAESI Act. SA.No.597/2024 came to
be dismissed on 28.03.2025 on the ground that SA is barred by
limitation and is not maintainable before the Tribunal.
Aggrieved thereby, the petitioners are before this Court.
3. Learned Senior counsel appearing for the petitioners
submits that "whether the Debts Recovery Tribunal has the
power to condone the delay beyond 45 days in filing an
application under Section 17 of the SARFAESI Act" is a question
which is directly pending consideration before the Hon'ble
Supreme Court in SLP(C).No.4754/2021 arising from the
judgment of the Kerala High Court dated 02.11.2020. The
Hon'ble Supreme Court upon being satisfied of the importance
of the issue had issued notice, thereby seizing itself of the
matter. It is submitted that the Division Bench of Madhya
Pradesh High Court in Aniruddh Singh Vs. ICICI Bank Ltd.1,
while interpreting provisions of Section 29(2) and Section 5 of
the Limitation Act had held that the action taken under Section
17 of the SARFAESI Act, by virtue of Section 29(2) of the
Limitation Act, the SARFAESI Act does not expressly exclude
1
2024 SCC Online MP 205
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the application of the provisions from Section 4 to 24 of the
Limitation Act including Section 5.
4. Learned Senior counsel had relied on the judgment of
the Division Bench of Punjab & Haryana High Court in case of
Surinder Mahajan Vs. Debts Recovery Appellate Tribunal2
and submits that it is held that in the absence of any provision
under the Act excluding the applicability of the Limitation Act to
the proceedings before the DRT under Section 17 would not be
proper. Learned Senior counsel had also relied on the judgment
of the Division Bench of High Court of Telangana in case of
Porus Laboratory Private Limited Vs. Indian Bank3,
wherein relying upon the judgment of the Hon'ble Apex Court in
Baleshwar Dayal Jaiswal Vs. Bank of India and others4, it
is held that the DRT may exercise similar powers as exercised
by the DRAT and may entertain application filed beyond the
prescribed period. Learned counsel had relied on the judgment
of the Madras High Court in case of Ponnusamy Vs. Debts
2
2013 SCC Online P&H 7088
3
2018 SCC Online Hyd 161
4
(2016) 1 SCC 444
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Recovery Tribunal5, wherein it is held that the SARFAESI Act
does not exclude the application of the provisions of the
Limitation Act and remedy under Section 17(1) is in respect of
right of redemption and to say Section 5 of the Limitation Act
will not apply to an SA would virtually defeat the valuable right
of redemption. He had relied on the judgment of the Co-
ordinate Bench of this Court in case of H.V. Gopal & Ors Vs.
The Bangalore Souhardha Central Co-operative Bank Ltd
arising out of WP.No.21349/2022 dated 08.07.2024, the
Court had held that provisions contained in Section 5 of the
Limitation Act would be applicable to an application/appeal filed
before the DRT under Section 17 of the SARFAESI Act.
5. It is submitted that "whether this Court must defer the
consideration of the petition in WP.No.20193/2025 since the
question of law is pending before the Apex Court
notwithstanding a decision of Division Bench in
WP.No.11273/2024". It is submitted that Coordinate Bench
Ruling in Kailasam P Vs. Karnataka Bank Limited6 itself is
liable to be revisited in the light of the Hon'ble Apex Court's
5
2009-1-L.W.954
6
2025 SCC OnLine Kar 16631
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judgment and Review Petition which is pending consideration.
It was not brought to the notice of the Division Bench regarding
the pending SLP(C).No.4754/2021. When the Hon'ble Supreme
Court has ceased of the matter, the Division Bench ought not to
have delved upon the matter. It is submitted that the Hon'ble
Apex Court alone has the authority to settle questions of law
when the matter is ceased before it. Until such settlement is
made to decide the matter, may render an order that could
soon stand in conflict with the Hon'ble Supreme Court
judgment, creating needless multiplicity and prejudice to the
parties. It is submitted that in such circumstances, judicial
discipline and constitutional propriety demand that this Court
defer consideration of the issue until the Hon'ble Supreme
Court renders its authoritative pronouncement. To proceed and
decide a matter on which the Hon'ble Supreme Court has
already issued notice, it would undermine the constitutional
scheme and might lead to possibility of conflicting rulings and
may be contrary to what the Hon'ble Supreme Court may
ultimately hold.
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6. It is also submitted that the Hon'ble Apex Court in case
of Indian Overseas Bank Vs. Ashok Saw Mills7 had held
that the action taken by the bank under Section 13(4) of the
SARFAESI Act is a continuous cause of action in context of
Section 13(8) and therefore, the DRT would have jurisdiction to
consider and adjudicate with regard to Section 13(4) events. It
further held that DRT has been vested with jurisdiction to
declare any such action as invalid and necessarily implies that
borrower are entitled to question the action taken by the
secured creditor and the transactions entered into by virtue of
Section 13(4) of the Act. Therefore, if the action of respondent
No.1 in issuance of Sale Certificate is to be taken then the
period starts from 08.11.2024 or 09.10.2024, then the SA is
filed within time.
7. It is submitted that this Court vide order dated
27.09.2024 had directed the parties to maintain status quo as
on that day in relation to possession and title of schedule
property. When the matter was listed on 08.11.2024,
respondent No.1 made submission that the sale certificate is
issued and the Court records the same and interim order stands
7
(2009) 8 SCC 366
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vacated. Notwithstanding the fact that there was interim order
operating against respondent No.1 to maintain status quo with
respect to possession and title of the property, the bank had
committed an act of contempt violating the interim order
passed on 27.09.2024. It is submitted that the Hon'ble Apex
Court in case of Vidur Impex & Traders Pvt. Ltd. & Ors Vs.
Tosh Apartments Pvt. Ltd. & Ors8, had held that person
cannot acquire right in violation of the injunctive order and
lacked legal sanctity or bonafide status. Such transactions are
tainted and cannot be recognised in law.
8. It is submitted that the appeal filed before the DRAT
was withdrawn by the petitioner. The petitioner had filed
withdrawal application on 23.07.2023 before the DRAT and on
01.08.2025, the Tribunal had passed an order and dismissed as
withdrawn. As such, the respondent cannot contend that the
petitioner is still pursuing the matter before the DRAT. It is
submitted that the petitioner had challenged the sale notice
dated 17.08.2024 in WP.No.25944/2024 on the ground that
there was non compliance of Section 13(4) of the SARFAESI Act
and Rule 8(5) of the Security Interest (Enforcement) Rules,
8
2012 8 SCC 384
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2002. A Co-ordinate Bench of this Court by order dated
27.09.2024 directed the parties to maintain status quo as on
that day in relation to possession and title of the schedule
property. On 08.11.2024, respondent No.1 made submission
that the sale certificate is issued and the Court recorded the
same and interim order stands vacated. It is submitted that the
bank had committed an act of contempt violating the interim
order passed on 27.09.2024. The petitioner immediately filed
I.A.No.1/2024 seeking to recall the order dated 08.11.2024 in
WP.No.25944/2024. Parallelly, the petitioner approached the
DRT and instituted SA.No.597/2024 on 19.11.2024 seeking to
quash the sale notice dated 17.08.2024. It is submitted that in
the light of the clear violation of the earlier orders and the fact
that the Court ought to have condoned the delay, the writ
petition is liable to be allowed.
9. Learned counsel appearing for respondent No.1/bank
has filed the written argument stating that on 19.11.2024, the
petitioner had filed SA.No.597/2024 under Section 17 of the
SARFAESI Act, 2002 calling in question the sale notice dated
17.08.2024. Along with the said SA, I.A.No.2576/2024 was
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filed under Section 5 of the Limitation Act and the same was
dismissed by the DRT and consequently, dismissed
SA.No.597/2024 as the same is barred by limitation. It is
submitted that the only question that arises for consideration
before this Court is whether the DRT has power to condone the
delay under Section 5 of the Limitation Act in filing application
under Section 17 of the SARFAESI Act. It is submitted that as
per Section 17 of the SARFAESI Act, any person aggrieved by
any of the measures referred to in sub-section (4) of Section
13, can approach the Debts Recovery Tribunal within 45 days
from the date on which such measure had been taken. It is
submitted that a period of 45 days is envisaged as per the
provisions of the Act.
10. It is submitted that the issue whether the DRT has
the power to condone the delay or not is no more res integra in
the light of the judgment of the Division bench of this Court in
Kailasam's case referred supra, wherein the Division Bench
had categorically held that the DRT does not have the power to
condone the delay and the period of 45 days under Section 17
is mandatory. It is submitted that the reliance placed by the
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petitioner on Baleshwar Dayal's case is misconceived. In
Baleshwar Dayal's case, the Hon'ble Apex Court was
considering the question of condonation of delay by DRAT
under Section 18, which is an appeal provision. In fact, the
Division Bench of this Court in Kailasam's case referred supra
after considering Baleshwar Dayal's case has come to the
conclusion that delay in filing Section 17 application cannot be
condoned since a proceeding under Section 17 is original
proceedings and difference has to be maintained between the
original and appellate proceedings. It is submitted that the
question whether delay under Section 17 can be condoned,
whether the ratio of Baleshwar Dayal's case should apply to
Section 17 proceedings is pending before the Hon'ble Supreme
court in SLP(C).No.4754/2021. It is submitted that in case of
Mardia Chemicals Ltd. vs. Union of India9, the Hon'ble
Supreme Court had held that the proceedings under Section 17
are not appellate proceedings but are in the nature of initial
proceeding like filing an original suit in Civil Court and he relied
on paragraph No.59 of the judgment which reads thus:
9
(2004) 4 SCC 311
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"59. We may like to observe that proceedings under
Section 17 of the Act, in fact, are not appellate
proceedings. It seems to be a misnomer. In fact it is
the initial action which is brought before a forum as
prescribed under the Act, raising grievance against
the action or measures taken by one of the parties to
the contract. It is the stage of initial proceeding like
filing a suit in civil court. As a matter of fact
proceedings under Section 17 of the Act are in lieu of
a civil suit which remedy is ordinarily available but
for the bar under Section 34 of the Act in the present
case. We may refer to a decision of this Court
in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393]
where in respect of original and appellate
proceedings a distinction has been drawn as follows:
(SCC p. 397, para 15)
"There is a basic distinction between the right of suit
and the right of appeal. There is an inherent right in
every person to bring a suit of civil nature and unless
the suit is barred by statute one may, at one's peril,
bring a suit of one's choice. It is no answer to a suit,
howsoever frivolous to claim, that the law confers no
such right to sue. A suit for its maintainability
requires no authority of law and it is enough that no
statute bars the suit. But the position in regard to
appeals is quite the opposite. The right of appeal
inheres in no one and therefore an appeal for its
maintainability must have the clear authority of law.
That explains why the right of appeal is described as
a creature of statute."
11. Learned counsel has also relied on the judgment of
the Division Bench of Calcutta High Court in Akshat
Commercial Pvt. Ltd. Vs. Kalpana Chakraborty10, wherein
it is held that the provisions of the Limitation Act applies in
general 'as far as may be', yet Section 5 of the Limitation Act
has no application to Section 17 as the proceeding is original in
10
2010 SCC OnLine Cal 1361
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nature like suit and Section 5 and Section 29(2) has no
application to proceedings before the Tribunal. It is submitted
that Section 17(5) of the SARFAESI Act provides that an
application made under sub-section (1) shall be dealt with by
the DRT as expeditiously as possible and disposed of within 60
days from the date of such application. The proviso to Section
17(5) further provides that any extension of time for disposal of
such application must be for reasons recorded in writing and
the total period of pendency of the application with the DRT
shall not in any case exceed 4 months. It is further submitted
that prescription of an outer limit for disposal is indicative of
the legislative intent to exclude the provisions of the limitation
act for condoning the delay.
12. Learned counsel has also relied on the judgment of
the Hon'ble Apex Court in Bank of Baroda Vs. Parasaadilal
Tursiram Sheetgrah (P) Ltd.11, wherein the Hon'ble Apex
Court had observed that the reason for providing a time-limit of
45 days for filing an application under Section 17 can easily be
inferred from the purpose and object of the enactment. In case
11
(2023) 19 SCC 751
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of Transcore Vs. Union of India12, it is held that the
SARFAESI Act is enacted for quick enforcement of the security.
It is unfortunate that proceedings where a property that has
been brought to sale and third party rights created under the
provisions of the Act have remained inconclusive even after a
decade. Learned counsel had relied on the judgment of the
Hon'ble Apex Court in case of CCE & Customs Vs. Hongo
India (P) Ltd.13, wherein the Court was deciding the question
as to whether the High Court can condone delay beyond period
prescribed under Section 35-H of the Central Excise Act. The
Court held that in the absence of any clause condoning delay
by showing sufficient cause after prescribed period, there is
complete exclusion of Section 5 of the Limitation Act. Even in a
case where the special law does not exclude provisions of
Limitation Act by an express reference, it is open for the Court
to examine as to what extent the nature of special law and its
scheme exclude their operation.
13. Further, it is submitted that mere pendency of a
matter before the Hon'ble Supreme Court is not a ground for
12
2008 (1) SCC 125
13
(2009) 5 SCC 791
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the petitioner to submit that the binding judgment of the
Division Bench should not be followed. It is submitted that in
case of Ashok Sadarangani Vs. UOI14, the Hon'ble Supreme
Court had held that till such time as the decisions are not
modified or altered in any way, they continue to hold the field
and mere pendency of reference to a larger bench does not
mean that all other proceedings involving same issue would
have to be stayed. Similarly, in Rajnish Kumar Rai Vs. Union
of India15, the Hon'ble Supreme Court had held that a decision
which is referred to larger bench continues to hold the field and
has binding status until decision of larger bench. It is submitted
that the writ petition is liable to be dismissed.
14. Learned counsel appearing for respondent
No.2/auction purchaser has also placed the written submissions
before this Court stating that respondent No.2 had purchased
the property vide sale notice dated 17.08.2024 and auction
conducted on 06.09.2024 by respondent No.1/Bank. It is stated
that the petitioners had approached the DRT by filing
SA.No.597/2024 and in that, they had filed I.A.No.2576/2024.
14
(2012) 11 SCC 321
15
(2023) 14 SCC 782
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When the DRT rejected I.A.No.2576/2024 and consequently
dismissed SA.No.597/2024 on 28.03.2025, the petitioners on
16.05.2025 had approached the DRAT challenging the order
passed by DRT. Suppressing these facts, the present petition
has been filed seeking to set aside the order of the DRT dated
28.03.2025. It is submitted that the Hon'ble Apex Court had
only issued notice in the matter and no interim order/stay has
been granted. The Hon'ble Supreme Court has only taken
notice of the counsel's submission and has not provided any
reasoning or finding on the question raised. It is submitted that
there is no statutory provision prohibiting the learned Single
Judge of a High Court from hearing and passing orders in
matters, solely because a similar question is pending before the
Hon'ble Supreme Court, notwithstanding the decision of the
Division Bench of the same High Court on the same question. It
is submitted that the judicial discipline prescribes that the
learned Single judge follow the decision of the larger bench of
the same court, irrespective of pendency of similar question
before the Hon'ble Supreme Court where there is no interim
order or prohibitory order to decide the said question.
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15. In this regard, learned counsel has relied on the
judgment of Hon'ble Apex court in case of Union Territory of
Ladakh and Others Vs. Jammu and Kashmir National
Conference and Others16. He has also relied on the judgment
of the Division Bench of this Court in case of Union of India
Vs. M/s. Johnson & Smith Co. and Others arising out of
W.A.No.7333/2000 dated 30.10.2012. For the same
proposition, he had relied on the judgment in case of
T.V.Sundaram Iyengar & Sons Ltd. and Another Vs. State
of Karnataka and Another17. It is submitted that the Division
Bench of this Court has laid down in Kailasam's case, that the
DRT does not have power to condone the delay in respect of
applications under Section 17 of the SARFAESI Act. This
decision has not been challenged before the Hon'ble Supreme
Court. It is submitted that only SLP has been preferred against
the decision of the learned single Judge of the High Court of
Kerala, where it is held that beyond 45 days the delay cannot
be condoned. In that, notice was issued and no stay has been
16
2023 SCC OnLine SC 1140
17
ILR 1999 Kar 1828
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granted. It is submitted that in the light of the law laid down by
the Division Bench, the writ petition needs to be dismissed.
16. Having heard the learned Senior counsel for the
petitioner, the respective counsels for the respondents, perused
the entire material on record. In the light of the submissions
made on behalf of the parties, the issues that falls for
consideration before this Court is "whether the DRT has the
power to condone the delay by entertaining the
application filed under Section 5 of the Limitation Act",
"whether this Court can entertain and decide this writ
petition as the similar issue is pending consideration
before the Hon'ble Apex Court."
17. Before considering the issue with regard to
condonation of delay, it is appropriate to look at the Legislative
Intent behind enacting the SARFAESI Act. The whole purport of
the Act is to enable the banks and financial institution to
recover secured debts quickly without intervention of Civil
Courts, expeditious recovery of non-performing assets,
empowering secured creditors to enforce security interest,
reducing delay in recovery litigation and ultimately
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strengthening the banking system. The Hon'ble Apex Court in
case of Mardia Chemicals Ltd. referred supra had considered
the object of the SARFAESI Act and observed that it is to
provide a speedy remedy to secured creditors, while still
preserving the borrower's right to challenge the action before
the Tribunal. Hence, the whole purport of the act is for speedy
recovery of the amounts to the banking and financial
institutions.
18. At this juncture, it is appropriate to have a look at
Sections 17, 35, 36, 37 of the SARFAESI Act and Sections 5
and 29 of the Limitation Act which reads thus:
"Section 17 of the SARFAESI Act
17. [Application against measures to recover secured
debts].--(1) Any person (including borrower),
aggrieved by any of the measures referred to in sub-
section (4) of section 13 taken by the secured
creditor or his authorised officer under this
Chapter,1[may make an application along with such
fee, as may be prescribed,] to the Debts Recovery
Tribunal having jurisdiction in the matter within
forty-five days from the date on which such measure
had been taken:
[Provided that different fees may be prescribed for
making the application by the borrower and the
person other than the borrower.]
[Explanation.--For the removal of doubts, it is hereby
declared that the communication of the reasons to
the borrower by the secured creditor for not having
accepted his representation or objection or the likely
action of the secured creditor at the stage of
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communication of reasons to the borrower shall not
entitle the person (including borrower) to make an
application to the Debts Recovery Tribunal under this
sub-section.]
[(1A) An application under sub-section (1) shall be
filed before the Debts Recovery Tribunal within the
local limits of whose jurisdiction--
(a) the cause of action, wholly or in part, arises;
(b) where the secured asset is located; or
(c) the branch or any other office of a bank or
financial institution is maintaining an account in
which debt claimed is outstanding for the time
being.]
[(2) The Debts Recovery Tribunal shall consider
whether any of the measures referred to in sub-
section (4) of section 13 taken by the secured
creditor for enforcement of security are in accordance
with the provisions of this Act and the rules made
thereunder.
[(3) If, the Debts Recovery Tribunal, after examining
the facts and circumstances of the case and evidence
produced by the parties, comes to the conclusion that
any of the measures referred to in sub-section (4) of
section 13, taken by the secured creditor are not in
accordance with the provisions of this Act and the
rules made thereunder, and require restoration of the
management or restoration of possession, of the
secured assets to the borrower or other aggrieved
person, it may, by order,--
(a) declare the recourse to any one or more
measures referred to in sub-section (4) of section 13
taken by the secured creditor as invalid; and
(b) restore the possession of secured assets or
management of secured assets to the borrower or
such other aggrieved person, who has made an
application under sub-section (1), as the case may
be; and
(c) pass such other direction as it may consider
appropriate and necessary in relation to any of the
recourse taken by the secured creditor under sub-
section (4) of section 13.]
(4) If, the Debts Recovery Tribunal declares the
recourse taken by a secured creditor under sub-
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section (4) of section 13, is in accordance with the
provisions of this Act and the rules made thereunder,
then, notwithstanding anything contained in any
other law for the time being in force, the secured
creditor shall be entitled to take recourse to one or
more of the measures specified under sub-section (4)
of section 13 to recover his secured debt.
[(4A) Where--
(i) any person, in an application under sub-section
(1), claims any tenancy or leasehold rights upon the
secured asset, the Debt Recovery Tribunal, after
examining the facts of the case and evidence
produced by the parties in relation to such claims
shall, for the purposes of enforcement of security
interest, have the jurisdiction to examine whether
lease or tenancy,--
(a) has expired or stood determined; or
(b) is contrary to section 65A of the Transfer of
Property Act, 1882 (4 of 1882); or
(c) is contrary to terms of mortgage; or
(d) is created after the issuance of notice of default
and demand by the Bank under sub-section (2) of
section 13 of the Act; and
(ii) the Debt Recovery Tribunal is satisfied that
tenancy right or leasehold rights claimed in secured
asset falls under the sub-clause (a) or sub-clause (b)
or sub-clause (c) or sub-clause (d) of clause (i), then
notwithstanding anything to the contrary contained
in any other law for the time being in force, the Debt
Recovery Tribunal may pass such order as it deems
fit in accordance with the provisions of this Act.]
(5) Any application made under sub-section (1) shall
be dealt with by the Debts Recovery Tribunal as
expeditiously as possible and disposed of within sixty
days from the date of such application:
Provided that the Debts Recovery Tribunal may, from
time to time, extend the said period for reasons to be
recorded in writing, so, however, that the total period
of pendency of the application with the Debts
Recovery Tribunal, shall not exceed four months from
the date of making of such application made under
sub-section (1).
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(6) If the application is not disposed of by the Debts
Recovery Tribunal within the period of four months
as specified in sub-section (5), any part to the
application may make an application, in such form as
may be prescribed, to the Appellate Tribunal for
directing the Debts Recovery Tribunal for expeditious
disposal of the application pending before the Debts
Recovery Tribunal and the Appellate Tribunal may, on
such application, make an order for expeditious
disposal of the pending application by the Debts
Recovery Tribunal.
(7) Save as otherwise provided in this Act, the Debts
Recovery Tribunal shall, as far as may be, dispose of
the application in accordance with the provisions of
the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993) and the rules
made thereunder.]"
Section 35 of the SARFAESI Act
The provisions of this Act to override other laws.--
The provisions of this Act shall have effect,
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force
or any instrument having effect by virtue of any such
law.
Section 36 of the SARFAESI Act
Limitation.--No secured creditor shall be entitled to
take all or any of the measures under sub-section (4)
of section 13, unless his claim in respect of the
financial asset is made within the period of limitation
prescribed under the Limitation Act, 1963 (36 of
1963).
Section 37 of the SARFAESI Act
Application of other laws not barred.--The provisions
of this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Companies
Act, 1956 (1 of 1956), the SecuritiesContracts
(Regulation) Act, 1956 (42 of 1956), the Securities
and Exchange Board of India Act, 1992 (15 of 1992),
the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993) or any other law
for the time being in force.
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Section 5 of the Limitation Act
Extension of prescribed period in certain cases.--Any
appeal or any application, other than an application
under any of the provisions of Order XXI of the Code
of Civil Procedure, 1908 (5 of 1908), may be
admitted after the prescribed period if the appellant
or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or
making the application within such period.
Section 29 of the Limitation Act
Savings.--(1) Nothing in this Act shall affect section
25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any
suit, appeal or application a period of limitation
different from the period prescribed by the Schedule,
the provisions of section 3 shall apply as if such
period were the period prescribed by the Schedule
and for the purpose of determining any period of
limitation prescribed for any suit, appeal or
application by any special or local law, the provisions
contained in sections 4 to 24 (inclusive) shall apply
only in so far as, and to the extent to which, they are
not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the
time being in force with respect to marriage and
divorce, nothing in this Act shall apply to any suit or
other proceeding under any such law.
(4) Sections 25 and 26 and the definition of
"easement" in section 2 shall not apply to cases
arising in the territories to which the Indian
Easements Act, 1882 (5 of 1882), may for the time
being extend."
19. The party who is aggrieved by the measure taken by
the Bank can approach the Debts Recovery Tribunal under
Section 17 of the Act. The words employed in Section 17(1) of
the Act are that the aggrieved party can make an application
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within 45 days from the date on which such measures had been
taken. The words used "within forty five days" shows that the
statute is silent on extension of time. In those circumstances, it
has to be presumed as mandatory. The Act is a complete code
in itself, the application of the Limitation Act is not automatic.
Section 18 of the Act which deals with the appeal to the DRAT
contains express provision for condonation of delay, whereas
Section 17 of the SARFAESI Act is silent. The legal maxim
"expressio unius est exclusio alterius" i.e., express mention of
one implies exclusion of another applies in this case. It clearly
demonstrates what is the intention of the legislature,
legislature consciously granted the power to condone the delay
under Section 18 of the Act, but not under Section 17 of the
Act. The omission is deliberate, meaningful and in the pursuit of
speedy recovery of debts to financial institutions. Section 29
(2) of the Limitation Act envisages that Section 5 of the
Limitation Act applies unless it is expressly excluded by special
or local law. When it comes to Section 17 of the SARFAESI Act,
though it is not express exclusion but it is by way of implied
exclusion by clearly mentioning the rigid time limit of 45 days
and not giving any room for extension of time. The expression
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within forty five days is not an incidental expression, it is a
deliberate legislative command.
20. Section 29(2) of the Limitation Act says that if a
special law prescribes its own limitation, the Limitation Act
applies only if not expressly or impliedly excluded. In the light
of the language employed in Section 18 of the SARFAESI Act
which is conspicuously absent in Section 17 of the Act, it is
clear case of implied exclusion of Section 5 of the Limitation Act
and satisfies the test of necessary implication. The Courts have
to adopt the purposive construction while interpreting the
provisions of the Act which advances the object of the Act,
another contrary interpretation will not serve the legislative
intent. The Debt Recovery Tribunal is a creature of statute, the
Tribunal cannot assume powers which are not expressly
conferred upon it by the legislation. By fixing the time limit of
45 days, there is an implied exclusion of the provisions of the
Limitation Act. When the intention of the legislature is evident,
it is impermissible for the Courts to supplement its view by
introducing words which are not used by the legislature. The
role of the Courts is to interpret law, but not to legislate under
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the guise of interpretation. The intention of the legislature
prevails over literal or equitable considerations.
21. It is the general argument that procedural
laws/provisions should be liberally construed, delay should be
condoned in the interest of justice. This would not apply in
cases where the provision speaks in clear terms and it is
designed for a strict frame work and with an avowed object to
be achieved. The legislative intent underlined under Section 17
of the SARFAESI Act is to provide a non extendable limitation
period of 45 days and any interpretation and applying Section 5
of the Limitation Act is nothing but acting contrary to the
purport of the SARFAESI Act and same is impermissible. When
it comes to the appeal, the position is slightly different. The
Hon'ble Apex court in Baleshwar Dayal's case referred supra
held that DRT may condone the delay in appropriate cases. But
the power is limited discretion.
22. Learned Senior counsel appearing for the petitioner
submits that in the light of the law laid down in Baleshwar
Dayal's case, it applies to Section 17 of the SARFAESI Act also.
That contention of the learned Senior Counsel is liable to be
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rejected for the reason that Baleshwar Dayal's case is with
regard to the appeal provision, but the proceedings under
Section 17 of the SARFAESI Act are in the nature of original
suit. Hence, same analogy cannot be applied to the original
proceedings.
23. The Division Bench of this Court in Kailasam's case
referred supra had considered the judgment of the Hon'ble
Apex Court in Baleshwar Dayal's case referred supra and held
that Section 5 of the Limitation Act will not apply. The relevant
paragraphs of the judgment are paragraph Nos.4.2 and 4.6
which reads thus:
"4.2. The above view gains support from the Apex Court
decision in BANK OF BARODA vs. M/S.PARASAADILAL
TURSIRAM SHEETGRAH PVT. LTD.. In more or less
similar facts the borrowers had approached the DRT by
invoking Sec.17 of 2002 Act. "...DRT dismissed the
Sec.17 application on the ground that it was filed
beyond the statutory period of limitation of 45 days...
The above referred order was challenged in review. The
DRT by its order dated 08.08.2016 allowed the review...
It is rather strange that the DRT not only entertained
the Review Petition, but has allowed the same... The
order in review was challenged before the DRAT, which
found no difficulty in allowing the appeal on the ground
that there was never been an error apparent on the face
of record for exercising the review jurisdiction...". At
para 12 the Apex Court has further observed as under:
"The reason for providing a time limit of 45 days for
filing an application u/s.17 can easily be inferred
from the purpose and object of the enactment. In
TRANSCORE vs. UNION OF INDIA & ANOTHER this
court held that the SARFAESI Act is enacted for
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quick enforcement of the security. It is unfortunate
that proceedings where a property that has been
brought to sale and third party rights created under
the provisions of the Act, have remained
inconclusive even after a decade."
4.6. Learned Counsel for the Petitioner Mr. Manu
Kulkarni in support of his contention banks upon the
Apex Court decision in BALESHWAR DAYAL JAISWAL vs.
BANK OF INDIA, to contend that DRT has power to
condone delay because Section 17(7) is pari materia to
Section 18(2) of the SARFAESI Act. The subject matter
of this case involved Section 18 and not Section 17.
Since the Privy Council days, if not before, difference is
maintained between institution of original proceedings
and that of appellate proceedings; proceedings u/s 17
of the Act belong to the class of former whereas those
u/s 18 pertain to the class of latter. This position is
fairly admitted at the Bar. It hardly needs to be
reiterated that a decision is an authority for the
proposition it lays down in a given fact matrix and not
for all that, that would logically follow from what has
been so laid down vide Lord Halsbury in QUINN vs.
LEATHEM. Added, when a special legislation grants a
right of action subject to certain conditions and creates
a Forum for its effectuation, that right becomes
exercisable on satisfying such conditions, and not
otherwise. Limitation period is one such condition. After
all, judiciary being a branch of the State, has to show
due deference to the decisions of co-ordinate branches
i.e,. legislations. This is founded on the doctrine of
separation of powers which is held to be a Basic Feature
of the Constitution vide KESAVANANDA BHARTI vs.
STATE OF KERALA."
24. In the light of the Division Bench judgment which is a
binding precedent on this Court, the contention of the petitioner
is liable to be rejected.
25. The other submission made by the Senior counsel is
that the Hon'ble Apex Court had seized of the matter with
regard to condonation of delay, as such, the judicial discipline
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demands that the Courts have to wait till the authoritative
pronouncement is made by the Hon'ble Apex Court. This Court
is not able to appreciate this submission also. The Hon'ble Apex
Court has issued notice and no interim order is granted. In
these circumstances, there is no bar for this Court to entertain
this writ petition and particularly in the light of the order
passed by the Division Bench of this Court.
26. In the light of the above discussion, this Court comes
to the irresistible conclusion that Section 5 of the Limitation Act
has no application and the Tribunal has no power to condone
the delay in an application filed under Section 17 of the
SARFAESI Act. Both the issues are held against the petitioner.
Hence, this Court is passing the following order:
ORDER
i. Accordingly, the writ petition is dismissed.
ii. All I.As. in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE MEG, List No.: 1 Sl No.: 2