Debangsu Basak, J. - (1.) WHETHER the provisions of Sections 4 to 24 (inclusive) of the Limitation Act, 1963 was applicable to an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), 2002 fell for consideration in the revisional application.
(2.) THE order impugned herein was a rejection of an appeal filed at the instance of a bank against an order passed by the Presiding Officer, Debts Recovery Tribunal allowing an application under Section 17 of the SARFAESI Act, 2002 at the instance of an alleged debtor, on the ground that Sections 4 to 24 of the Limitation Act, 1963 had no manner of application to such appeal. In arriving at such finding the Appellate Tribunal relied upon the view to such effect expressed by the Madhya Pradesh High Court in All India Reported 2011 Madhya Pradesh page 205 (M/s. Seth Banshidhar Kedia Rice Mills Pvt. Ltd. & Ors. v. State Bank of India & Ors.). The Appellate Tribunal also relied heavily on : 1974 Volume 2 Supreme Court Cases page 133 (Hukumdev Narain Yadav v. Lalit Narain Mishra) to return a finding that Section 5 of the Limitation Act, 1963 stood excluded in its application to an appeal under Section 18 of the SARFAESI Act, 2002 by implication. The Debts Recovery Appellate Tribunal did not follow the view expressed by the Andhra Pradesh High Court in the judgment reported at All India Reporter 2013 Andhra Pradesh page 24 (Smt. Sajida Begum v. State Bank of India, Hyderabad) on the ground that the Andhra Pradesh High Court did not consider Hukumdev Narain Yadav (supra). The revisional application was at the instance of the bank. Two other revisional applications were also filed and were pending against proceedings emanating from transactions between the parties herein. The facts which gave giving rise to the revisional applications were as noted hereafter. On or about September 16, 2011 the petitioner instituted proceedings under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act (RDB Act), 1993, being O.A. No. 406 of 2011 against the opposite parties herein and others. In such proceedings the petitioner, inter alia, claimed mortgage of an immovable property at Rajarhat made by the Opposite Party No. 3 to secure the claim of the petitioner. The Rajarhat property was stated to be mortgaged on March 24, 2009 and released on February 4, 2011. The petitioner claimed that the opposite parties obtained release of the mortgage fraudulently. The petitioner claimed that the Opposite Party No. 3 remortgaged the Rajarhat property by deposit of title deeds on February 17, 2011. The petitioner claimed that, on the opposite parties failing to repay its dues the petitioner invoked the provisions of the SARFAESI Act, 2002 by a notice under Section 13(2) of the SARFAESI Act, 2002 dated May 13, 2011. Such notice was published in the newspapers on May 17, 2011. In spite of notice, the opposite parties failed to repay the petitioner. The provisions of Section 13(4) of the SARFAESI Act, 2002 were, thereafter, invoked by the petitioner. A possession notice dated July 18, 2011 was issued. Such possession notice was published in the newspapers on July 21, 2011. None of the opposite parties applied under Section 17 of the SARFAESI Act, 2002 within the statutory period of 45 days from the date of possession. The petitioner, thereafter, issued a notice for sale on August 21, 2011. The Opposite Party No. 1 filed an application under Section 17 of the SARFAESI Act, 2002 on September 12, 2011 challenging the measures under Section 13(4) of the SARFAESI Act, 2002 taken on July 18, 2011 and August 21, 2011. Such application was registered as S.A. No. 131 of 2011.
(3.) THE petitioner claimed that, in view the ratio of the decision reported at : All India Reporter 2010 Calcutta page 138 (Akshat Commercial Pvt. Ltd. & Anr. V. Kalpana Chakraborty & Ors.) a proceedings under Section 17 of the SARFAESI Act, 2002 was an original proceedings and, therefore, the provisions of Section 3 of the Limitation Act, 1963 were attracted and, as such, such proceedings being initiated beyond 45 days from the date of the measures under Section 13(4) of the SARFAESI Act, 2002 being July 18, 2011, such proceedings were barred by limitation and, therefore, not maintainable. Apart from the point of limitation the petitioner contended that, the mortgage made by the opposite parties was valid and that, the issue of mortgage was also an issue for decision in the pending proceedings under Section 19 of the RDB Act, 1993.;