Misc. Appeal No. 253 of 2008. Case: D.M. Nangia Engineers and Contractors and Ors. Vs Bank of Maharashtra and Anr.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Case NumberMisc. Appeal No. 253 of 2008
Party NameD.M. Nangia Engineers and Contractors and Ors. Vs Bank of Maharashtra and Anr.
CounselFor Appellant: Mr. Anurag Jain, Advocate and For Respondents: Mr. N.J. Devashrayee, Advocate
JudgesS. S. Parkar, J. (Chairperson)
IssueLimitation Act, 1963 (36 of 1963) - Section 5; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 18; Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(4), 17, 17(1), 34
Judgement DateAugust 27, 2008
CourtMumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Judgment:

S. S. Parkar, J. (Chairperson)

1. A short question which arises in this appeal is whether observations of the Division Bench of the Bombay High Court in the judgment delivered in the case of UCO Bank v. Kanji Manji Kothari & Co., reported in 2008 (2) All M.R. 512, relating to applicability of Sec. 5 of the Limitation Act to a proceeding under Sec. 17 under SRFAESI Act are obiter as held by the Presiding Officer, DRT Pune. This appeal has been filed impugning the order dated 10th June, 2008 passed by the Presiding Officer, DRT Pune, rejecting the application for condonation of delay which occurred in filing the application under Sec. 17 of the SRFAESI Act. The said section provides for limitation of 45 days from the date of the action taken by the secured creditor under Sec. 13(4) of the Act in respect of the secured property. The learned Presiding Officer was, on the facts of the case, of the view that the delay was not inordinate and the reason given for explaining the delay is sufficient to condone the delay. However, in his opinion the provisions of Sec. 5 of the Limitation Act were not applicable. The said opinion is expressed by the Presiding Officer against the clear dictum of the High Court in the aforesaid judgment. In para 77 (b) of the judgment the Division Bench of the Bombay High Court has concluded that, "The provision of Sec. 5 of the Limitation Act is applicable to the proceedings under Sec. 17(1) of the NPA Act."

2. The Presiding Officer has relied on the judgment of the Supreme Court in the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 S.C.C., 311. In the aforesaid judgment the Supreme Court, while considering the constitutional validity of the SRFAESI Act, has observed in para 59 of the judgment that calling proceedings under Sec. 17 of the Act as appellate proceedings seems to be a misnomer. Those proceedings are in lieu of a civil suit which remedy is ordinarily available but for the bar under Sec. 34 of the Act. The Apex Court in that judgment quoted its own observations made in para 15 of the judgment in the earlier case of Ganga Bai v, Vijay Kumar, reported in (1974) 2 S.C.C. 393, drawing distinction between the right of suit and the right of appeal. It was observed therein that there is an inherent right in every person to bring a suit of civil nature, A suit for its maintainability requires no authority of law but the right of appeal inheres in no one and therefore an appeal for its...

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