Madhya Pradesh High Court
Smt. Kiran Turakhiya vs Union Bank Of India on 12 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 12 th OF FEBRUARY, 2024
WRIT PETITION No. 202 of 2024
BETWEEN:-
SMT. KIRAN TURAKHIYA W/O LATE SHRI PRAFUL
TURAKHIYA, AGED ABOUT 72 YEARS, PLOT NO. 19,
RANI SATI GATE, SINGHANIYA COLONY, INDORE,
DISTRICT INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI RAJESH KUMAR SINGH, LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. UNION BANK OF INDIA THROUGH ITS
AUTHORIZED OFFICER 12/12, JIVAN PRADEEP
BUILDING, ANUPNAGAR, INDORE (MADHYA
PRADESH)
2. ANIL TURAKHIYA S/O LATE SHRI PRAFUL
TURAKHIYA, AGED ABOUT 42 YEARS,
OCCUPATION: DIRECTOR/CEO, M/S KAVYA
INDUSTRIES PVT. LTD., R/O PLOT NO. 19, RANI
SATI GATE, SINGHANIYA COLONY, INDORE,
DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI HARIOM SHARMA, ADVOCATE FOR THE RESPONDENT NO. 1)
(SHRI KAUSHAL SISODIYA, ADVOCATE FOR THE RESPONDENT NO.2)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard finally with the consent of both the parties.
Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 2In this petition under Article 226 of the Constitution of India, the petitioner is challenging the legality, validity and propriety of the impugned order dated 08.12.2023 by which the learned DRT (Chhattisgarh & Madhya Pradesh) Jabalpur has rejected I.A. No. 2449/2022, an application under Section 5 of the Limitation Act. Consequent upon the same, S.A. No. 955/2022 filed by the petitioner also stood dismissed on the ground of limitation alone.
2. The brief facts of the case are that the Respondent No. 2 who is a Director/ CEO of M/s Kavya Industries Pvt. Ltd. had moved an application under Section 17(1) of Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act, 2002") on 25.11.2022 before the learned DRT Jabalpur which was registered as S.A. No. 995/2022 challenging the Demand Notice dated 17.05.2021 and Auction Notice dated 14.09.2022. The applicant in support of above application had also filed an application under Section 5 r/w Section 14 of Limitation Act for condoning the delay in filing application under Section 17(1) of SARFAESI Act, 2002. Thereafter, in application under Section 5 of the Limitation Act, it is stated that in the scheduled auction dated 18.10.2022 bid has been accepted by the respondent/Bank for immovable properties. By sensing some fowl play on the part of the respondent/Bank, the petitioner had submitted a letter dated 20.10.2022 (A/16 in SA) for furnishing some information. Vide letter dated 26.10.2022, again the petitioner had submitted a letter (A/17 in SA) to the Chief Manager, Regional Manager and General Manager of the Bank. However, no information was served by the respondent no.1/bank. Thereafter, matter was heard on I.A. seeking condonation of delay which was dismissed and as a consequence, the Signature Not Verified application filed u/S 17 of the SARFAESI Act was also dismissed by the Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 3 DRT, Jabalpur on the ground of delay.
3. Learned counsel for the petitioner submitted that present petitioner submitted an application for intervention in the application u/S 17 of the SARFAESI Act on the ground that she is the co-sharer of the property in question being mother of the respondent no.2 herein and her late husband was the borrower of the loan in which the property in question was mortgaged. Thereafter, petitioner was impleaded as applicant no.2 in the S.A. Matter was listed for hearing on application seeking condonation of delay as well as on interim relief. Respondent no.1./ Bank has duly submitted reply and prayed for dismissal of the application u/S 5 of Limitation Act as well as u/S 17 of the SARFAESI Act. Learned counsel submits that the order passed by the DRT is contrary to law and facts. Respondent no.1 has illegally initiated auction proceedings without taking into consideration, the objection raised by the petitioner vide document dated 20.10.2022. The auction proceedings were completed at a very low price while the petitioner was ready for OTS by depositing the whole amount. The petitioner had produced on record, the letter Annexure A-17 and A-18 in the application, by which information was sought from the bank, which was not provided resulting into delayed filing of securitization application. However, learned DRT without considering all the material facts has dismissed the application seeking condonation of delay as well as the securitization application. Hence, the order passed by the DRT may be quashed and the bank be directed to maintain status-quo and restrained from issuing sale certificate in favour of bidder.
4. Learned counsel for the respondents opposed the prayer and submitted that learned DRT has rightly dismissed the application u/S 5 of the Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 4 Limitation Act and also the securitization application filed by the petitioner. Hence, no interference is warranted in the order impugned.
5. Heard, learned counsel for the parties and perused the record.
6. In the considered opinion of this Court, the Limitation Act of 1963 as well as the SARFAESI Act, 2002 are a complete Code. Section 17 of the SARFAESI Act is a remedy to any person who is aggrieved by any action taken by the creditor by any means u/S 13(4) of the SARFAESI Act by filing an application which is termed as securitization application to be filed within 45 days from the date on which measures u/S 13(4) are taken and the same does not confer any discretion to the DRT to extend the period of limitation of 45 days.
7. On an overview of Limitation Act, it came to light Section 29 of the Limitation Act provides for certain exceptional condition where delay can be condoned.
8. Section 29 of the Limitation Act, 1963 is reproduced below for ready reference:
29. Savings -
(i) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872(9 of 1872).
(ii) 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 Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 5 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.
(iii) Save as otherwise provided 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.
(iv) Section 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), amy for the time extend.
9. In view of the above, it appears that aforesaid principle of law is applicable to the case in hand and the provisions of Section 5 of Limitation Act would also apply and are available seeking condonation of delay before the DRT in the SARFAESI application which is filed after expiry of 45 days.
10. Recently, Co-ordinate Bench of this Court relying upon the decision of Apex Court in the case of Baleshwar Dayal Jaiswal Vs. Bank of India and Others reported in (2016) 1 SCC 444 has passed the order dated 03.01.2024 in the case of Anirduddh Singh Vs. Authorized Officer, ICICI Bank Ltd. [M.P. No. 5324/2023] wherein it has been held as under:
7. This Court need not go into the prolixity of considering various judicial pronouncements of different Courts to resolve the controversy herein because the answer to the question framed above lies in the bare reading of Section 29(2) of the Limitation Act. (Reproduced above).
7.1 Section 29 containing saving clause lays down various Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 6 contingencies in which different nature of causes of action arising under different enactments can be prevented from becoming time barred.
7.2 Section 29(2) inter alia stipulates that if the special law does not expressly exclude the application of Sections 4 to 24 of Limitation Act, then these provisions of Limitation Act shall apply qua all causes raised under the Special Law.
7.3 The special law i.e. SARFAESI Act does not expressly exclude the application of the provisions from Sections 4 to 24 of the Limitation Act (including Section 5) and therefore the benefit u/S.5 of Limitation Act shall be available to the cause of action raised in an application u/S 17 of SARFAESI Act.
8. Now applying the aforesaid principle of law to the fact situation attending the present case, it is obvious from plain reading of SARFAESI Act that while prescribing the period of 45 days for filing an application u/S.17(1) this special Act does not expressly bar the application of Section 5 of Limitation Act.
8.1 Consequent upon the above discussion, it is obvious that provisions of Section 5 of the Limitation Act would apply with full force and are available for making a prayer for condonation of delay before the DRT in applications u/S.17(1) which are filed after expiry of 45 days.
9. This Court is bolstered in its aforesaid view by the decision of Apex Court in Baleshwar Dayal Jaiswal vs. Bank of India and Others [(2016) 1 SCC 444], relevant extract of which is reproduced below:-Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 7
"14. We have already held that the power of condonation of delay was expressly applicable by virtue of Section 18(2) of the SARFAESI Act read with proviso to Section 20(3) of the RDDB Act and to that extent, the provisions of the Limitation Act having been expressly incorporated under the special statutes in question, Section 29(2) stands impliedly excluded. To this extent, we differ with the view taken by the Andhra Pradesh High Court as well as the Madras and Bombay High Courts. We are also in agreement with the principle that even though Section 5 of the Limitation Act may be impliedly inapplicable, principle of Section 14 of the Limitation Act can be held to be applicable even if Section 29(2) of the Limitation Act does not apply, as laid down by this Court in Consolidated Engg. Enterprises v. Irrigation Deptt. [(2008) 7 SCC 169] and M.P. Steel Corpn. v. CCE [(2015) 7 SCC 58].
15. As a result of the above discussion, the question is answered in the affirmative by holding that delay in filing an appeal under Section 18(1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20(3) of the RDDB Act read with Section 18(2) of the SARFAESI Act. The contrary view taken by the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills (P) Ltd. Case [AIR 2011 MP 205] is overruled."
11. In view of the above, the present petition stands disposed of with the following directions:
(i) The impugned order passed by the DRT dated 08.12.2023 in S.A. No. Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/13/2024 5:33:09 PM 8 955/2022 is hereby set aside.
(ii) The matter is remitted back to the DRT to decide the S.A. No. 955/2022 afresh and pass an order after considering merits of the case within a period of three months from the date of receipt of certified copy of the order.
(iii) Till then, parties are directed to maintain status-quo.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 2/13/2024
5:33:09 PM