IA-1531/2011(delay) – It is seen that Ld. CounselShri N.S. Manoharan appears on behalf of the Auction Purchaser. A reading of the order dated 25.2.2012 reveals that the matter has been posted to 15.3.2012 for filing of counter R2. Thereafter this IA was taken up and today it is posted for arguments in this IA. R2 has not filed counter. Today there is no representation for R2. R2 is called absent.
Ld. Counsel Shri Ravi appearing on behalf of the petitioner stated that the Hon’ble High Court of Madras has directed this Tribunal to dispose of the IA filed for condonation of delay by 26.3.2012 and stated that he is advancing his arguments on this application alone.
The Petitioner has filed this IA for the condonationof delay of 191 days in filing the appeal against the order dated 23.5.2011 passed by the Ld. Presiding Officer, DRT Madurai in SA No.111/2011 and has in the affidavit filed in support of the petitioner stated that he is running a mosquito coil manufacturing business and that he had availed credit facilities to the tune of more than Rs.1 crore from the respondent bank on 10.9.2008 and that his brother passed away in February 2010, due to which the petitioner had suffered and the business started facing financial difficulties.
It is stated that the respondent bank took up proceedings under the SARFAESI Act and the petitioner had to file SA 260/2010 before DRT,Madurai
It is stated that the petitioner therefore approached the Hon’ble High Court of Madras and filed writ petition in W.P. No.6595/2011 and the Hon’ble High Court of Madras had directed the petitioner to pay a sum of Rs.30 lakhs to the respondent bank which he had paid and that later the writ petition came to be dismissed and liberty was given to the petitioner to file the appeal before this Tribunal.
It is stated that there is some delay in filing the appeal and it is stated that during the pendency of the writ petition he did not challenge the order passed by the Ld. Presiding Officer, DRT Madurai in the stay application and that he has approached this Tribunal with a delay and has prayed that the delay of 191 days in filing the above appeal may be condoned.
It is stated that the respondent bank took up proceedings under the SARFAESI Act and the petitioner had to file SA 260/2010 before DRT,
It is stated that the petitioner therefore approached the Hon’ble High Court of Madras and filed writ petition in W.P. No.6595/2011 and the Hon’ble High Court of Madras had directed the petitioner to pay a sum of Rs.30 lakhs to the respondent bank which he had paid and that later the writ petition came to be dismissed and liberty was given to the petitioner to file the appeal before this Tribunal.
It is stated that there is some delay in filing the appeal and it is stated that during the pendency of the writ petition he did not challenge the order passed by the Ld. Presiding Officer, DRT Madurai in the stay application and that he has approached this Tribunal with a delay and has prayed that the delay of 191 days in filing the above appeal may be condoned.
The petitioner has set out his case in detail in the affidavit filed in support of the petition.
The Authorized Officer of the Indian Bank filed the detailed counter setting out that the petitioner has failed to file the appeal in time and the appeal is barred by limitation. It is stated in the counter that the SARFAESI Act is a self contained Act and the period of limitation provided in the appeal for Section 18 of the Act cannot be extended resorting to the provisions of the Limitation Act.
It is stated by the bank that the delay has not been explained and that the secured asset has been sold and the sale certificate had already been issued both for the factory, the land and the generator and it is stated that the petition is only liable to be dismissed.
It is stated by the bank that the delay has not been explained and that the secured asset has been sold and the sale certificate had already been issued both for the factory, the land and the generator and it is stated that the petition is only liable to be dismissed.
The Authorized Officer of the respondent bank has set out his case in the counter filed by him in the said petition.
Ld. Counsel for the petitioner took this tribunal through the factual matrix of the case and stated that in view of the fact that the petitioner hadbonafide prosecuted his case before the Hon’bleHigh Court of Madras and that the period spent before the Hon’ble High Court of Madras should be excluded for the purpose of limitation as per Section 14 of the Limitation Act.
Ld. Counsel stated that the dictum laid down by the Hon’bleHigh Court of Madhya Pradesh in the case of “M/s Setji Banshidhar Kedia Rice Mills Pvt. Ltd. and others Vs. State Bank of India and others-AIR 2011 Madhya Pradesh 205” is only persuasive and that this Tribunal is not bound by the said judgment and relied upon the following decisions in support of his contentions:
Ld. Counsel stated that the dictum laid down by the Hon’bleHigh Court of Madhya Pradesh in the case of “M/s Setji Banshidhar Kedia Rice Mills Pvt. Ltd. and others Vs. State Bank of India and others-AIR 2011 Madhya Pradesh 205” is only persuasive and that this Tribunal is not bound by the said judgment and relied upon the following decisions in support of his contentions:
(i) P. Sarathy Vs. State Bank of India
(ii) A. Aruljothi Vs. The Deputy Commissioner of Labour, Salem
(iii) Mukri Gopalan Vs. CheppilatPuthanpurayil Aboobacker. 2009 (2) CTC 302
(iv) State of Goa
The Ld. Counsel stated that this Tribunal is boundby the law laid down by the Hon’ble High Court of Madras in the case “Ponnusamy and Another Vs. DRT, Coimbatore 2009 (2) CTC 302” and the same enables this Tribunal to condone the delay that occurs in filing the appeal under Section 18 of the SARFAESI Act and prayed that the delay may be condoned as the same has been property explained.
The Ld. Counsel for the respondent bank stated this Tribunal has no jurisdiction whatsoever to condone the delay that had occurred in filing the appeals under Section 18 of the SARFAESI Act and further that this Tribunal is bound by the decision of the Hon’ble High Court of Madhya Pradesh and added that this tribunal is bound by its own order dated 2.3.2012 made in IA No.179/2012 in AIR (SA) No.1017/2011.
Respondent No. 2 was called absent.
Heard both sides.
The following points arise for consideration in this IA:
(i) Whether this Tribunal has jurisdiction to condone the delay in filing the appeals under Section 18 of the SARFAESI Act?
(ii) If so, whether the petitioner has made out a case for the condonation of delay of 191 days in filing the appeal?
Point No.1 – The Hon’ble High Court of Madhya Pradesh in the case of “M/s Setji BanshidharKedia Rice Mills Pvt. Ltd., and others Vs. State Bank of India and others AIR 2011 Madhya Pradesh 205” has laid down in paragraphs 19 and 39 of its judgment that the Debt Recovery Appellate Tribunal has no powers to condone the delay in filing of appeal before it under Section 18 of the SARFAESI Act and therefore in view of the law laid down in the said judgment this Tribunal has no powers to condone the delay in filing of appeal under Section 18 of the SARFAESI Act.
Point No.(ii) – Point No. (i) has been answered in the negative and against the petitioner and therefore this Tribunal cannot condone the delay of 191 days for want of jurisdiction as stated above.
Point Nos. (i) and (ii) have been answered against the petitioners and therefore this IA is dismissed.
This judgement was delivered on 23 rd Mar 2012 by the Honble Chair Person of DRAT Chennai
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