V.Vijayaprakash v. The Authorized Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.03.2019 CORAM :

THE HON'BLE MRS.V.K.TAHILRAMANI, CHIEF JUSTICE AND The HON'BLE MR.JUSTICE M.DURAISWAMY C.R.P.(PD).No.2266 of 2013 V.Vijayaprakash ... Petitioner Vs.

1.The Authorized Officer, Federal Bank, Bhahad Towers, 30, West Cott Road, Royapettah, Chennai.

2.V.Madheswari 3.V.Sumathi 4.V.Bhaskar ... Respondents (R2 to R4 - given up) Petition filed under Article 227 of the Constitution of India against the order passed in ARI (SA).No.455 of 2010 dated 17.04.2013 on the file of the Debt Recovery Appellate Tribunal, Chennai. For Petitioner : Mr.V.Kadhirvelu For Respondents : R1 - no appearance R2 to R4 - given up

O R D E R

(Order of the Court made by M.DURAISWAMY,J.) Challenging the order passed by the Debts Recovery Tribunal - 1. Chennai, the petitioner preferred an appeal in AIR (SA).No.455 of 2010 on the file of the Debt Recovery Appellate Tribunal, Chennai, along with an application in I.A.No.965 of 2010 to condone the delay of 414 days in filing the appeal.

2.The Debt Recovery Appellate Tribunal, by order dated 17.04.2013, dismissed the application relying upon the order passed by a Division Bench of this Court reported in 2012-4-L.W. 493 [1.Dr.Zubaida Begum 2.Dr.Akthar Hussain Vs. Indian Bank rep by its Manager, Guindy Branch, Chennai and another].

3.In the judgment reported in 2015 (4) CTC 809 [Baleshwar Dayal Jaiswal Vs. Bank of India & others], the Hon'ble Supreme Court held that the Debt Recovery Appellate Tribunal has the power to condone the delay in filing the appeal under Section 18(2) of the SARFAESI Act and proviso to Section 20(3) of the RDB Act. The relevant paragraph in the said judgment reads as follows:

"...

8.The first point for consideration is the applicability of Proviso to Section 20(3) of the RDB Act to the disposal of an Appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act. A bare perusal of the said Section 18(2), makes it clear that the Appellate Tribunal under the SARFAESI Act has to dispose of an Appeal in accordance with the provisions of the RDB Act. In this respect, the provisions of the RDB Act stand incorporated in the SARFAESI Act for disposal of an Appeal. Once it is so, we are unable to discern any reason as to why the SARFAESI Appellate Tribunal cannot entertain an Appeal beyond the prescribed period even on being satisfied that there is sufficient cause for not filing such Appeal within that period.

Even if power of condonation of delay by virtue of Section 29(2) of the Limitation Act were held not to be applicable, the Proviso to Section 20(3) of the RDB Act is applicable by virtue of Section 18(2) of the SARFAESI Act. This interpretation is clearly borne out from the provisions of the two statutes and also advances the cause of justice. Unless the scheme of the statute expressly excludes the power of condonation, there is no reason to deny such power to a Appellate Tribunal when the statutory scheme so warrants. Principle of legislation by incorporation is well known and has been applied inter alia in Ram Kirpal Bhagat vs. The State of Bihar, 1969 (3) SCC 471; Bolani Ores Ltd. v. State of Orissa, 1974 (2) SCC 529; and Onkarlal Nandlal v. State of Rajasthan, 1985 (4) SCC 404, relied upon on behalf of the Appellants.

Appellate Tribunal under the SARFAESI Act has the power to condone the delay in filing an Appeal before it by virtue of Section 18(2) SARFAESI Act and Proviso to Section 20(3) of the RDB Act."

From the above judgment, it is clear that the Debt Recovery Appellate Tribunal has got power to condone the delay in filing the Appeal. However, in the case on hand, the Debt Recovery Appellate Tribunal, following the judgment of a Division Bench of this Court, erroneously declined to entertain the application for condonation of delay. 4.Therefore, following the ratio laid down by the Apex Court in 2015

(4) CTC 809 [Baleshwar Dayal Jaiswal Vs. Bank of India & others], we are of the considered view that the Debt Recovery Appellate Tribunal has got powers to condone the delay in filing the appeal. In view of the same, the order passed by the Debt Recovery Appellate Tribunal is liable to be set aside. Accordingly, the same is set aside. The matter is remitted back to the Debt Recovery Appellate Tribunal for fresh consideration. The Debt Recovery Appellate Tribunal is directed to decide the application in I.A.No.965 of 2010 in AIR.(SA).No.455 of 2010 on merits and in accordance with law, after giving due opportunity of hearing to all the parties as expeditiously as possible.

5.In the result, the Civil Revision Petition is allowed. No costs. Index : Yes/No (V.K.T., CJ.) (M.D., J.) Internet : Yes 29.03.2019 Speaking /Non Speaking Order va To 1.The Authorized Officer, Federal Bank, Bhahad Towers, 30, West Cott Road, Royapettah, Chennai.

THE HON'BLE CHIEF JUSTICE AND M. DURAISWAMY,J.

va C.R.P.(PD).No.2266 of 2013 29.03.2019