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[Cites 26, Cited by 0]

Gujarat High Court

M/S G.A. Industries vs Bank Of Baroda, Authorised Officer on 29 August, 2019

Author: Biren Vaishnav

Bench: Biren Vaishnav

       C/SCA/14659/2019                                         ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 14659 of 2019

==========================================================
                       M/S G.A. INDUSTRIES
                              Versus
              BANK OF BARODA, AUTHORISED OFFICER
==========================================================
Appearance:
MR.ASHOK L. SHAH, ADVOCATE for ADITYA A GUPTA(7875) for the
Petitioner(s) No. 1,2,3
MOHIT A GUPTA(8967) for the Petitioner(s) No. 1,2,3
MR AR GUPTA(1262) for the Petitioner(s) No. 1,2,3
MR.NARENDRA KHARE, ADVOCATE for MR VIRENDRA M GOHIL(3244)
for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

                            Date : 29/08/2019

                             ORAL ORDER

1. Heard Mr.Ashok L. Shah for Mr. Gupta for the petitioners, Mr.Narendra Khare with Mr.Virendra Gohil for the respondents.

2. The prayer in the petition, filed under Article 226 of the Constitution of India is as under:

"43(a) YOUR LORDSHIPS BE PLEASED to a writ of certiorari, order or any appropriate writ, order or direction to quash and set aside the impugned judgment and order dated 08.07.2019 passed by DRT­II at Ahmedabad in Miscellaneous Application No.576 of 2019 in Securitisation Application No.162 of 2019, at AnnexureG to this petition in the interest of justice"

3. Under challenge before this Court is the decision dated 08.07.2019 passed by the Debts Page 1 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER Recovery Tribunal-II, at Ahmedabad, in Securitization Application No.162 of 2019 along with Misc. Application (IA) No.576 of 2019.

4. The brief facts arising before this Court are as under.

5. The petitioners, aggrieved by the respondent­ bank's actions taken under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short) especially under Section 13(2) and 13(4) of the SARFAESI Act, approach this Court by filing Special Civil Application N`o.32 of 2019. The Court while considering the issue on hand, noticed the facts which read as under:

"1. The petitioners have challenged the action taken by the respondent Bank under Section 13(2) and Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act'), in declaring the account of the petitioner as NPA on 30.3.2018, demand notice dated 3.7.2018 and the possession notice dated 16.10.2018 on the ground that the same were issued in violation of the principles of natural justice and in violation of the guidelines issued by the Reserve Bank of India (RBI) as contained in the framework on Revival and Rehabilitation of MSMEs and other guidelines of the RBI.
2. The short facts as transpiring from the memo of the petition are that the petitioner Company is a small enterprise as covered under the Micro, Small, and Medium Enterprises Development Act, 2006, and as per the certificate dated 4.3.2015 issued by the General Page 2 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER Manager, District Industries Centre, Rajkot. The petitioner Company had availed finances from the respondent Bank like Cash Credit Limit of Rs.6 crore and Term Loan of Rs.43.40 lac. However, due to the implementation of the demonetization and GST, the petitioners could not repay the instalments as agreed upon. The petitioners, therefore, had requested the respondent Bank for restructuring of the accounts as per the guidelines of RBI being Framework for Revival and Rehabilitation of MSMEs. The petitioners had requested the respondent Bank to forward their letter dated 26.4.2018 to the Restructuring Committee for further process, however, the respondent did not forward the same and replied vide the letter dated 26.6.2018 to the effect that no restructuring was possible in the case of the petitioners. It is further case of the petitioner that the respondent thereafter issued the notice under Section 13(2) of the SARFAESI Act on 3.7.2018, to which the petitioners responded by submitting its objections on 5.9.2018. The respondent Bank considered the said objections as per Section 13(3­A) of the SARFAESI Act vide its letter dated 18.9.2018, and thereafter issued the possession notice in the local daily on 16.10.2018 under Section 13(4) of the SARFAESI Act. Hence, the petition has been filed.
3. The bone of contention raised by the learned Advocate Mr.Aditya Gupta for the petitioners is that the respondent Bank could not have initiated the proceedings under Section 13 of the SARFAESI Act in violation of the guidelines issued by the RBI for revival and rehabilitation of MSMEs, and therefore, all the actions and proceedings taken against the petitioners were dehors the SARFAESI Act. According to Mr.Gupta, the provisions of the SARFAESI Act being not applicable to the petitioners' case, the petitioners did not approach the DRT under Section 17 of the SARFAESI Act.
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4. At the outset, it may be stated that the petitioners without availing the statutory alternative remedy to challenge the measures taken by the respondent Bank under Section 13(4) of the SARFAESI Act, by approaching the DRT as contemplated under Section 17 of the SARFAESI Act, have straightaway filed the present petition. The petitioners earlier also had not challenged the action of the respondent Bank in declaring their account as NPA. It is for the first time all the proceedings prior to and after the measures taken under Section 13(4) of the SARFAESI Act have been challenged by way of the present petition. This Court while dealing with similar issues raised in Special Civil Application No.690 of 2019 has held in the order dated 7.1.2019 as under:­

"6. At this juncture, it may be noted that the Supreme Court has strongly deprecated the tendency of the High Courts in entertaining the writ petition filed under Article 226 of the Constitution of India by the petitioners, without availing the alternative efficacious remedy available to them, and more particularly in the matters which arise under the SARFAESI Act. In case of Authorised Officer, State Bank of Travancore and Anr. Vs. Mathew K.C. reported in (2018) 3 SCC 85, the Supreme Court recently while dealing with the alternative remedy available with the SARFAESI Act has held as under:

"3. The SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Page 4 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same.
4. xxx... xxx... xxx
5. xxx... xxx... xxx
6. xxx... xxx... xxx
7. xxx... xxx... xxx
8. The statement of objects and reasons of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act') Act states that the banking and financial sector in the country was felt not to have a level playing field in comparison to other participants in the financial markets in the world. The financial institutions in India did not have the power to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mounting non­performing assets of banks and financial institutions. The Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had suggested enactment of new legislation for securitisation and empowering banks Page 5 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER and financial institutions to take possession of securities and sell them without court intervention which would enable them to realise long term assets, manage problems of liquidity, asset liability mismatches and improve recovery. The proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as 'the DRT Act') with passage of time, had become synonymous with those before regular courts affecting expeditious adjudication. All these aspects have not been kept in mind and considered before passing the impugned order.
9. xxx... xxx... xxx
10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under section 17 before the Tribunal and the appellate remedy under section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :­ "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions.
Page 6 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER
In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi­judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
* * *
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."

11. xxx... xxx... xxx

12. xxx... xxx... xxx

13. xxx... xxx... xxx

14. xxx... xxx... xxx Page 7 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER

15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex­parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:­ "46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured Page 8 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation.

Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v.

Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

7. The Supreme Court in the subsequent order dated 05.10.2018 in the case of ICICI Bank Ltd. Vs. Umakanta Mohapatra in Civil Appeal No.10243 to 10250 of 2018 observed as under:

"Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in Authorized Officer, State Bank of Travancore and Anr. vs. Mathew K.C., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non­Performing Assets (NPAs).
Page 9 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:­ "18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. Vs. Prem Heady Engineering Works (P) Ltd. and Anr. (1997) 6 SCC 450, observing:­ "32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."

The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside"

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6. Considering the scheme of the SARFAESI Act and relying on the decision of the Supreme Court in case of United Bank of India v. Satyavati Tondan and others reported in 2010 (8) SCC 110 and several other judgments, the petition filed by the petitioner was dismissed on the ground that the petitioner had an alternative remedy under section 17 of the SARFAESI Act. It will be in the fitness of things to reproduce the operative portion of the order:

"8.In view of the aforestated clear legal position settled by the Supreme Court, and in view of the fact that the petitioners have not exhausted the alternative remedy available to them under section 17 of the SARFAESI Act for challenging, the measures undertaken by the respondent Bank under section 13(4) of the SARFAESI Act, the present petition could not be entertained and deserves to be dismissed in limine.

9.Mr.Shah for the petitioners though had sought to submit that the account of the petitioners could not have been declared NPA in view of the guidelines issued by the RBI, and that there was noncompliance of the provisions contained in sub section (3A) of Section 13 of the SARFAESI Act and therefore, the measures under section 13(4) were not required to be challenged before the DRT under section 17 of the Act, the said submission of Mr.Shah could not be accepted in view of the powers conferred upon the DRT under section 17(3) of the SARFAESI Act, which reads as under:

"17. Application against right measures to recover secured debts:
1. xxx ... xxx... xxxx
2. xxx ... xxx... xxxx Page 11 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER
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 sub­section (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;

(b) restore the possession of the secured assets or management of secured assets to the borrower of such other aggrieved person, who has made an application under sub­section (1), as the case may be; and

(c) pass such order 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."

10. From the bare reading of the said provision, it clearly transpires that if the DRT 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 subsection (4) of section 13, taken by the secured creditor were not in accordance with the provisions contained in the Act and the rules made thereunder, and require restoration of the management or restoration of possession of the secured assets to the borrower, it has jurisdiction to pass necessary orders as mentioned Page 12 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER therein. It is needless to say that the issue of noncompliance of any of the provisions including the provision contained in sub sections (2), (3) or (3A) of Section 13 of the SARFAESI Act could be agitated by the petitioners before the Tribunal in the application under section 17 challenging the measures taken by the respondent Bank under section 13(4) of the SARFAESI Act. The petitioners have not challenged any of the said proceedings or the orders or measures taken by the respondent Bank under section 13 of the SARFAESI Act before the DRT or the Court and have approached this Court at the last minute, when pursuant to the order passed by the District Magistrate on 30.10.2018, the respondent Mamlatdar and Executive Magistrate has issued notice dated 12.12.2018 for taking over the possession on 18.01.2019. It is needless to say that the writ jurisdiction is an equitable jurisdiction and delay defeats equity. The petitioners having not challenged the earlier orders, actions and measures undertaken by the Respondent Bank, before the appropriate Forum at the appropriate stage, it cannot be permitted to invoke the extraordinary jurisdiction of this Court without exhausting the alternative, efficacious statutory remedy available to them."

7. In compliance of the order so passed by this Court, the petitioner filed an application being Securitization Application No.162 of 2019 before the Debt Recovery Tribunal. Since the application was beyond the prescribed period of limitation, the petitioner also filed Misc. (Delay) Application No.576 of 2019 before the Debt Recovery Tribunal, requesting the Tribunal, to condone the delay of 102 Page 13 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER days in approaching the Tribunal under Section 17 of the SARFAESI Act.

The application is on record. The relevant portion of the application praying for condonation of delay reads as under:

"3.That on 29.11.2018 the Writ Petition being No. SCA No.32 of 2019 was filed before the Hon'ble High Court. The said Petitioner was thereafter dismissed by the Hon'ble Court on 05.02.2019 on the ground of availability of alternative remedy before the Hon'ble DRT under Section 17 of the SARFAESI Act, 2002 and a certified copy of the order was applied on 11.02.2019 and was delivered on 19.02.2019. A copy of the case status obtained from the website of the Hon'ble High Court is annexed herewith and marked as Annexure P1.
4. That the time period from 29.11.2019 to 19.02.2019, may be excluded on account of Section 14 of the limitation Act, 1963 in the humble submission of the applicant. That after receipt of the order dated 05.02.2019 on 19.02.2019, the Applicants came to meet the Ld. Advocate on 23.02.2018 and sought advise from him as to whether appeal should be filed or the remedy before the Hon'ble DRT may be pursued. The Ld. Advocate applied his mind and advised on 27.02.2019 to file appeal. That the Petitioner intimated the Ld. Advocate to file appeal on 27.02.2019. That the Ld. Advocate started preparing the matter whereas the Applicants made arrangements to arrange the court fees of Rs. 1 lakhs.
5. That the Ld. Advocate prepared the papers for filing of the matter on 07.03.2019 and the Applicant No. 3 visited the Ld. Advocate on 11.03.2019 for signing Page 14 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER and notarisation of the Petition."

8. The respondent­bank opposed this application. The reply indicates that the objection of the bank was that delay cannot be condoned in view of the fact that the delay was unjustified and since the 45 days had expired much earlier prior to the filing of the petition, there was no sufficient cause under Section 5 of the Limitation Act for the Tribunal to condone the delay. It was contended that the provisions of the Limitation Act do not apply to the Tribunal.

9. Taking into consideration the application filed for condonation of delay and the affidavit in reply filed by the respondent, the Tribunal after hearing the learned counsel for the parties, extensively reproduced the order of this Court in Special Civil Application No.32 of 2019, which has been referred to herein above. Going through the judgments cited at bar, the Tribunal rejected the application for condonation of delay.

The reasons on which the Tribunal rejected the application will require reproduction.

"9. I have gone through the judgment cited on behalf of applicants that court should take liberal view or while condoning delay in filing of petition before Court if accompanied with delay condonation application. Now question is whether there was bonafide mistake or bonafide act to approach Hon'ble High Court or there were some ulterior motive. At this stage no such Page 15 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER comments can be made on such intention but certainly if we allow the benefit of Section 14 of Limitation Act, certainly that would go against the verdict and sprit of judgment passed by Hon'ble Supreme Court in Satyavati Tondon's case and other related subsequent cases decided by Hon'ble Supreme Court refraining litigants to directly approach Hon'ble High Court under Article 226 of the Constitution of India by by avoiding efficacious remedy provided under Act, 2002. Here in the present case, the applicants filed objections against Demand Notice and they were well aware about the provisions of Securitization Act and remedy available to them but despite that they opted to approach Hon'ble High Court of Gujarat under Article 226 of the Constitution of India. It was a calculated risk of applicants with conscious mind that in case they fail to get any relief from Hon'ble High Court they would have option to approach Debt Recovery Tribunal. In such situation, it is appropriate for this Tribunal to decline the benefit of Section 14 of Limitation. Even if we give the benefit of Section 14 by excluding days spent before Hon'ble High Court, the applicants have approached this Tribunal after a delay of 31 days and thus the application is barred by limitation and applicants have no right to claim simultaneous benefit of Section 14 and Section 5 of Limitation Act."

10. Mr.Ashok L. Shah learned counsel for the petitioner assailed the order of the Tribunal in refusing to condone the delay. The gist of submissions of Mr.Shah are as under:

(I) In a suggestion that the petitioner ought to approach the Appellate Tribunal, extensive reliance is placed on Section 17 of the Act to contend that Page 16 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER only if an order is passed wherein measures under Section 13(2) or 13(4) of the SARFAESI Act are undertaken, could an appeal lie ?
(II) Mr.Shah further submits that the Tribunal was in error in observing that the benefit of section 14 of the Limitation Act would not be available and the observation of the Tribunal that "It was a calculated risk of applicants with conscious mind that in case they fail to get any relief from Hon'ble High Court they would have option to approach Debt Recovery Tribunal. In such situation, it is appropriate for this Tribunal to decline the benefit of Section 14 of Limitation." So the Tribunal further observed that even if the benefit is given, there is delay of 31 days.
(III) Mr.Shah further submits that the remedy under section 18 is not available against the order refusing to condone the delay and at best, this Court in exercise of powers under Article 226 ought to exercise jurisdiction to condone the delay and then the petitioner be relegated to the alternative remedy under Section 18 of the Act.
(IV) Mr.Shah placed reliance upon Collector, Land Acquisition, Anantnag and Ors. v. Katiji and Ors.

reported in AIR 1987 SC 1353. He has invited my attention to paras 5 and 6 of the judgment to suggest that a justice oriented approach should be adopted in condonation of delay application. He further invited Page 17 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER my attention to the decision of the Bombay High Court in case of Team Global Logistics Private Limited v. Commissioner of Service Tax ­ V reported in 2018 SCC OnLine Bom 14908, in support of his submission that the provisions of Section 14 of the Limitation Act would apply to a Tribunal too. Specific mention was made on para 7 of the judgment.

11. Learned counsel for the respondent bank Mr.Khare has invited my attention to Section 18 of the SARFAESI Act. Section 18 of the SARFAESI Act reads as under:

"18. Appeal to Appellate Tribunal.--
(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under section 17, may prefer an appeal along with such fee, as may be prescribed] to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

[Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:] [Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:

Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty­five per cent. of debt referred to in the second proviso.
(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, Page 18 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

12. Reading of Section 18 according to Mr.Khare would indicate that the aggrieved person can approach the Tribunal against any order made by the Tribunal. In his submission therefore, an order refusing to condone the delay would fall within the realm of Section 18 and therefore an appeal would lie before the Debt Recovery Tribunal.

13. Mr.Khare drew my attention to the judgment of the Supreme Court in case of Authorized Officer, State Bank of Travancore and Another v. Mathew K. C. reported in (2018) 3 SCC 85 in support of his submission that this Court under Article 226 of the Constitution of India should be loath in exercising such powers when there is an inbuilt extensive legislation of the SARFAESI Act which provides an alternative remedy. He also relied upon the decision of the Supreme Court in case of ICICI Bank Ltd. Etc. v. Umakanta Mohapatra etc. passed in Civil Appeal Nos.10243­10250 of 2018, wherein, the Supreme Court relying on the decision in the case of Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another reported in (1997) 6 SCC 450, held that High Court should not be permitted to get into judicial adventurism and it is time that such tendency should be stopped.

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14. In short, his submission was that the petitioner ought to be relegated to a remedy by way of filing an appeal under Section 18 to the Debts Recovery Tribunal.

15. I have gone through the documents placed on record. The peculiar facts of this case is to be noted.

(I) The petitioner has approached this Court against measures taken by the respondent­bank under Sections 13(2) and 13(4) of the SARFAESI Act. True it is that at that point of time, a remedy under Section 17 was available. Despite that position of law, the petitioner undertook the exercise by his choice to approach this Court under Article 226 of the Constitution of India by filing Special Civil Application No.32 of 2019.

(II) True it is too that by an order dated 05.02.2019, this Court dismissed the petition and relegated the petitioner by way of filing an application under Section 17 of the Act.

(III) It is under this background of facts that, rather than approaching the Tribunal at the first instance, the petitioner invoked the remedy under Article 226 of the Constitution of India. At this stage, it will be relevant to reproduce Section 14 of the Limitation Act which reads as under:

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"14 Exclusion of time of proceeding bona fide in court without jurisdiction. --
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub­section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,--

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

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(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

Perusal of the provisions of Section 14 of the Limitation Act would indicate that in the event the litigant bona­fidely approaches the Court, which is otherwise a Court which may have no jurisdiction, the time undertaken by such a litigant is to be excluded while computing the period of limitation.

16. Though it was the contention of the respondent in the reply that the Tribunal is not a Court and therefore Section 14 is not applicable, the reasons on which the Tribunal has rejected the application does not indicate that the Tribunal rejected the application on such a ground so raised by the respondent. However, the Tribunal has thought it fit to reject the application on the ground that the petitioner "took a calculated risk" and therefore even the Tribunal did not think it fit to condone the delay of 31 days even if the benefit of Section 14 was to be given.

17. Though the matter and issue is not whether Section 14 of the Limitation Act would apply to the Tribunal, it will be in the fitness of things to note the ratio laid down in case of Corporation Bank v. Jayshreeben & Ors. passed in Special Civil Application No.4553 of 2012, which has held that the provisions of Section 14 of the Limitation Act would be available with the Tribunal. I am not dwelling Page 22 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER into that issue solely in view of the fact that the Tribunal has branded the inclusion of the fact under Article 226 "calculated risk" and dismissed the application solely on that ground.

18. At this stage, it will also be in the fitness of things to reproduce para 7 of the judgment relying upon by Mr.A.L.Shah in case of Team Global Logistics Private Limited (supra) which reads as under:

"7. The impugned order dated 15th November 2017 of the Tribunal held that the principles contained in Section 14 of the Limitation Act, 1963 i.e. exclusion of time spent bonafide in prosecuting a proceeding before a forum which does not have jurisdiction is inapplicable to statutory appeals. This has now been rejected by the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise. It has held that the principle of Section 14 of the Limitation Act, 1963 is applicable even when in respect of statutory Appeals filed before the Tribunal from the orders passed by the Collector of Customs (Appeals) under the Customs Act, 1962. Thus, the period of time spent in prosecuting the Petition against the order dated 13th January 2016 of the Commissioner of Service Tax has to be excluded while computing the period of limitation in filing an Appeal before the Tribunal. Undisputedly, the period between 4th May 2016 to 30th March 2017 was spent bonafide before this Court in prosecution of Writ Petition No.1724 of 2016."

19. Having perused the reasonings of the Tribunal in rejecting the application, I am of the view that the Tribunal seems to have lost sight of the fact so Page 23 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER decoded by the Supreme Court in case of Katiji and Ors. (supra) which is expressed in para 6 of the judgment and the same reads as under:

"6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice­oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note­making, file pushing, and passing­on­ the­buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant­non­grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits.
Page 24 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019 C/SCA/14659/2019 ORDER
Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

20. Thus, it is apparent that a justice oriented approach ought to have been adopted by the Tribunal and even assuming for the sake of argument, for adopting that the petitioner has an alternative remedy, in my discretion of exercise of jurisdiction, I deem it fit to quash and set aside the order dated 08.07.2019 passed by the Tribunal. The delay in filing SA is condoned. The Tribunal shall hear SA No.162 of 2019 on merits as if the delay in filing such application is condoned.

21. At this stage, Mr.Narendra Khare learned counsel for the petitioner requested to stay this order for a period of four weeks. The request is rejected.

22. Petition is accordingly allowed.

(BIREN VAISHNAV, J) ANKIT SHAH Page 25 of 25 Downloaded on : Sat Aug 31 00:18:41 IST 2019