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M.P. Nos.6432 of 2023 & 4104 of 2023

with R.P. No.453 of 2024

IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE

BEFORE

HON'BLE SHRI JUSTICE VIVEK RUSIA

&

HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI

MISC. PETITION No. 6432 of 2023

RAMESH PAL AND OTHERS

Versus

IDFC FIRST BANK LIMITED AND OTHERS

WITH

MISC. PETITION No. 4104 of 2023

M/S SHIV INDUSTRIES THROUGH ITS PROPRIETOR SHANKAR

PRASAD SHARMA

Versus

PUNJAB NATIONAL BANK AND OTHERS

REVIEW PETITION No. 453 of 2024

UNION BANK OF INDIA THROUGH ITS AUTHORIZED OFFICER/

MANAGER MR. MANOJ KUMAR SONI AND OTHERS

Versus

SMT. KIRAN TURAKHIYA AND OTHERS

Appearance:

Shri Aviral Vikas Khare along with Shri Sachin Patel, learned counsel for the

petitioners in M.P. No.6432 of 2023.

Shri Kishore Shrivastava, learned Senior Counsel assisted by Shri Mallikarjun Khare,

learned counsel for respondent No.1 in M.P. No.6432 of 2023.

****************************************

Shri Satish Agrawal along with Shri Kunj Khandelwal, learned counsel for the

petitioners in M.P. No.4104 of 2023.

Shri Shrey Raj Saxena along with Shri Rishabh Singh Chouhan, learned counsel for

respondents No.1 & 2 in M.P. No.4104 of 2023.

Shri Mayank Agrawal on behalf of Shri Gaurav Chhabra, learned counsel for

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M.P. Nos.6432 of 2023 & 4104 of 2023

with R.P. No.453 of 2024

respondent No.3 in M.P. No.4104 of 2023.

****************************************

Shri Vivek Phadke & Shri Hariom Sharma on behalf of Mehul Shukla, learned counsel

for the petitioner in R.P. No.453 of 2024.

Shri Ritesh Kumar Sone, learned counsel for respondent No.1 in R.P. No.243 of 2024.

Reserved on: 25

th

September, 2025

Delivered on: 03

rd

November, 2025

Acts referred : Recovery of Debt & Bankruptcy Act, 1993; Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2005; & Limitation Act, 1963.

Cases referred : Vishal N. Kalsaria v/s Bank of India & Others reported in AIR 2016 SC 30; Mardia

Chemicals Limited & Others v/s Union of India & Others reported in (2004) 4 SCC 311; Transcore v/s

Union of India & Another reported in (2008) 1 SCC 125; Consolidated Engineering Enterprises v/s

Principal Secretary, Irrigation Department & Others reported in (2008) 7 SCC 169; M.P. Steel

Corporation v/s Commissioner of Central Excise reported in (2015) 7 SCC 58; Baleshwar Dayal

Jaiswal v/s Bank of India & Others reported in AIR 2015 SC 2881; International Asset Reconstruction

Company India Limited v/s Official Liquidator of Aldrich Pharmaceuticals Limited & Others reported

in (2017) 16 SCC 137 Ganesan v/s Tamil Nadu Hindu Religious & Charitable Endowments Board &

Others reported in (2019) 7 SCC 108; Superintending Engineer / Dehar Power House Circle Bhakra

Beas Management Board v/s Excise & Taxation Officer reported in (2020) 17 SCC 692; K.V. Rao v/s

B.N Reddi reported in AIR 1969 SC 872; Chhattisgarh SEB Central Electricity Regulatory Commission

reported in (2010) 5 SCC 23; and Gopal Sardar v/s Karuna Sardar reported in (2004) 4 SCC 252 & M/s

Fair Style Embroidery Works & Another v/s Debts Recovery Tribunal III Chandigarh & Others (CWP-

20243-2025) (Punjab & Haryana High Court); and M/s Oswal Spinning and Weaving Mills Limited &

Others v/s UCO Bank & Another (CWP No.21519 of 2018).

O R D E R

Per : Justice Vivek Rusia

Since the issues involved in these petitions are identical in

nature, with the joint request of the parties, these M.P.s and R.P. are

finally heard and being decided by this common order.

A. Miscellaneous Petition No.6432 of 2023

This Miscellaneous Petition is filed under Article 226 / 227 of

the Constitution of India challenging the order dated 02.09.2023

passed by the Debt Recovery Tribunal, Jabalpur (in short 'DRT') in

S.A. No.299/2013, whereby the application under section 5 of the

Limitation Act, 1963 filed for condonation of delay has been

dismissed inter alia on the ground that its provision does not apply

consequently the S.A. has also been dismissed.

B. Miscellaneous Petition No.4104 of 2023

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with R.P. No.453 of 2024

This Miscellaneous Petition is filed under Article 226 / 227

of the Constitution of India, challenging the order dated 05.07.2023

passed by the DRT in S.A. No.567/2022, whereby the application

filed under Section 5 of the Limitation Act, as well as S.A., has been

dismissed.

C. Review Petition No.453 of 2024

This Review Petition is filed under Order XLVII Rule 1 of the

Code of Civil Procedure, 1908 seeking review of the order dated

12.02.2024 passed in Writ Petition No.202 of 2024 (Smt. Kiran

Turakhiya v/s Union Bank of India & Another), whereby the order

dated 08.12.2023 passed by the DRT rejecting the application under

Section 5 of the Limitation Act and S.A. No.955/2022 has been set

aside and the matter has been remitted back to the learned DRT to

decide the S.A. afresh by observing that the provisions of Section 5

of the Limitation Act applies with full force.

FACTS OF THE CASE

F-1.Common facts in all three petitions are to the effect that the

Bank / Financial Institution advanced the loan to the borrower by

mortgaging its immovable property by executing a mortgaged deed.

When the borrower defaulted in repaying the loan/ EMI, the Bank /

Financial Institution initiated proceedings by taking measures under

Section 13(4) of the Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002 (in short 'the

SARFAESI Act'). By invoking the provisions of 13(4) of the

SARFAESI Act, the Bank / Financial Institution took possession

(symbolic/physical) and thereafter, put the property into auction.

After the finalisation of auction sale proceedings, the mortgaged

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property was sold to a third party.

F-2.Thereafter the borrowers approached the DRT by way of

filing a Saucerisation Application / Petition under Section 17 of the

SARFAESI Act ( in short "SA"). Since there was a delay in filling

the SA beyond the prescribed period of 45 days, hence they filed an

application under Section 5 of the Limitation Act for condonation of

delay.

F-3.The Bank / Financial Institution appeared and filed an

objection in respect of the power of DRT under Section 5 of the

Limitation Act to condone the delay beyond 45 days . In all three

matters, the learned DRT has held that the period of delay beyond 45

days cannot be condoned as the provisions of Section 5 of the

Limitation Act do not apply to the provisions of Section 17 of the

SARFAESI Act, and, as a result, dismissed all the S.As.

F-4.The SARFAESI Act provides the remedy of appeal to

approach the Debt Recovery Appellate Tribunal against the dismissal

of S.A., even on the ground of limitation, but the petitioners have

approached this Court by way of miscellaneous petitions under

Article 226 / 227 of the Constitution of India. After notice, the Bank /

Financial Institution have filed a reply to support the order passed by

the DRT.

F-5.Taking into consideration the reasons given in the impugned

orders by the learned DRT, grounds raised by the petitioners and

contentions of the respondents, the core issue emerges for our

consideration is “whether the provisions of the Limitation Act apply

to an application filed under Section 17 of the SARFAESI Act 2002

and if answer is affirmative then whether Section 5 or 14 of the

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Limitation Act will apply to an application/petition under Section 17

of the SARFEASI Act for condonation of delay ?

SUBMISSION OF PETITIONERS IN M.P. NO.4104 OF 2023

P-1.Shri Satish Agrawal, learned counsel, appearing on behalf of

borrowers submitted that the negative view taken by the DRT about

the non-applicability of Section 5 of the Limitation Act for

condonation of delay is not based on any cogent and persuasive

reasonings. By plain reading of Sections 17 of the SARFAESI Act &

Section 24 of the Recovery of Debts and Bankruptcy Act, 1993 (in

short 'the RDB Act'), there cannot be an iota of doubt that there is no

express prohibition of filing SA beyond a period of 45 days as there

is no exclusion of the provisions of the Limitation Act. The

SARFAESI Act does not eclipse the provisions of the RDB Act. By

reading Section 37, it is clear that the SARFAESI Act would be in

addition to and not in derogation of various acts, including the RDB

Act.

P-2.In support of the aforesaid submissions, Shri Agrawal,

learned counsel, has placed reliance on a judgment delivered by the

Apex Court in the case of Transcore v/s Union of India & Another

reported in (2008) 1 SCC 125, wherein it has been held that the

provisions contained in the SARFAESI Act are complementary to the

provisions of the RDB Act. Shri Agrawal, learned counsel, has placed

reliance upon provisions of sub section (2) of Section 29 of the

Limitation Act to buttress his argument that, in the absence of any

express provisions curtailing the applicability of the provisions of the

Limitation Act, same would be applicable to the SARFAESI Act. In

support of his contention, learned counsel has placed reliance upon a

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judgment delivered in the case of Superintending Engineer / Dehar

Power House Circle Bhakra Beas Management Board v/s Excise

& Taxation Officer reported in (2020) 17 SCC 692.

P-3.Shri Agrawal, learned counsel submitted that the application

filed under Section 17 of the SARFAESI Act even if is not like a suit

as the word 'suit' is defined in Section 2(l) of the Limitation Act. It is

like an original proceeding by way of petition/objection to the action

taken by the Bank / Financial Institution or the secured creditors as

observed by the Apex Court in the case of Mardia Chemicals

Limited & Others v/s Union of India & Others reported in (2004) 4

SCC 311. According to learned counsel, this is the only right and

remedy available to the aggrieved persons to protect their property

from arbitrary action taken by the secured creditor. In these

proceedings, the DRT is not required to decide the title between the

parties like a Civil Court; therefore, these proceedings are not akin to

a civil suit seeking declaration of title or that the action of Bank /

Financial Institution be declared void.

P-4.Shri Satish Agrawal, learned counsel, further submitted that

Section 29(2) of the Limitation Act makes the provision of Sections 4

to 24 applicable to special or local laws prescribing a different period

of limitation for suit, appeal or application, unless expressly

excluded. Since there is no express exclusion of applicability of

Sections 4 to 24 of the Limitation Act in the SARFAESI Act, the

delay is liable to be condoned under Section 5 of the Limitation Act

as well.

P-5.It is further submitted by learned counsel that Section 24 of

the RDB Act makes the Limitation Act applicable to the DRT; hence,

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with R.P. No.453 of 2024

impliedly, the provisions of the Limitation Act apply to the

application under Section 17 of the SARFAESI challenging the

measures taken under Section 13(4). Therefore, there is an implied

inclusion of the Limitation Act and no exclusion of such Act.

P-6.Shri Agrawal, learned counsel, further submitted that Sections

17(7) & 18(2) of the SARFAESI Act contemplate that the application

shall be disposed of in terms of the provisions of the RDB Act. The

RDB Act gives a remedy and right to the Bank to apply before the

DRT to recover the debts, whereas the SARFAESI Act gives the right

and remedy to the borrower to approach the DRT; therefore, the

provisions of the Limitation Act available under the RDB Act would

be available in the application filed under Section 17 of the

SARFAESI Act by the borrower. In support of his contention, learned

counsel has placed reliance upon paragraph 13.7 of the recent

judgment passed by the Division Bench of the High Court of Punjab

& Haryana at Chandigarh in the case of M/s Fair Style Embroidery

Works & Another v/s Debts Recovery Tribunal III Chandigarh &

Others (CWP-20243-2025) Neutral Citation 2025 PHHC 125959-

DB. In the aforesaid case, the Division Bench has held that

provisions of the Limitation Act are available to the DRT, while

dealing with an application under Section 17(1) filed after the

prescribed period of 45 days, provided the same is accompanied by

an application under Section 5 of the Limitation Act.

SUBMISSIONS OF THE PETITIONER IN M.P. NO.6432 OF

2023

P-7.Shri Aviral Vikas Khare, learned counsel for the petitioner, in

addition to the aforesaid , argued that the issue as to whether the

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provisions of the Limitation Act apply to the proceedings under the

provisions of the SARFAESI Act had already been settled by the

Apex Court in the case of Baleshwar Dayal Jaiswal v/s Bank of

India & Others reported in AIR 2015 SC 2881 in which it is held

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.

The learned Presiding Officer has not appreciated the fact that due to

the COVID–19 Pandemic, there was a complete lockdown in the

entire country; therefore, the petitioners could not approach the DRT

within the period of limitation. When the Apex Court has condoned

the delay to all the litigants, then the DRT ought to have condoned

the delay in the present case.

P-8. Shri Khare has placed reliance upon a judgment delivered by

the Apex Court in the case of N. Balakrishnan v/s M.

Krishnamurthy reported in (1998) 7 SCC 123, wherein the Apex

Court has observed that it must be remembered that in every case of

delay, that can be a due to some lapse on the part of the litigant

concerned. That alone is not enough to turn down his plea and to shut

the door against him. If the explanation does not smack of mala fides

or it is not put forth as part of a dilatory strategy, the Court must show

utmost consideration to the suitor.

P-9.It is further submitted that after taking possession of the

mortgaged property, most of the time borrowers approach the Bank /

Financial Institution for settlement of the loan account or submit One

Time Settlement (OTS), and the Bank consumes most of the time

either does not entertain the borrowers or forwards the proposal to the

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higher authorities, due to which 45 days get expired in approaching

the DRT. These aspects are liable to be considered for condonation of

delay; hence, the period of 45 cannot be applied in the strict sense

and the litigant cannot be non-suited.

P-10.Shri Khare, learned counsel, has referred to Section 3 of the

Limitation Act, which applies to every suit instituted, appeal

preferred, and application made, but the proceedings initiated under

Section 17 of the SARFAESI Act cannot be described as a suit, as the

suit is ordinarily instituted by presentation of a plaint.

P-10.Learned counsel appearing on behalf of the borrowers in R.P.

No.453 of 2024 has adopted the arguments advanced by Shri Satish

Agrawal & Shri Aviral Vikas Khare.

P-11.Shri Akshat Agrawal, learned counsel who normally

represents the borrower before the DRT and DRAT as well as the

High Court, has been permitted to address on the issue in support of

the counsel appearing for the borrower . Learned counsel has

criticised the view taken by the learned the Debt Recovery Tribunal

about the applicability of the Limitation Act in proceedings under

Section 17 of the SARFAESI Act. Shri Agrawal learned counsel has

relied upon the latest judgment delivered by the Division Bench of

Punjab & Haryana High Court in the case of M/s Fair Style

Embroidery Works (supra), wherein the Division Bench has followed

the earlier judgment of M/s Oswal Spinning and Weaving Mills

Limited & Others v/s UCO Bank & Another reported in 2019 (1)

193 PLR 6 and held that the remedy of Limitation Act, if applicable

to the Bank / Financial Institution under Section 19 of the RDB Act

should also be made applicable to the application / aggrieved person

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including the borrower under Section 17 of the SARFAESI Act.

P-12.Shri Akshat Agrawal learned counsel argued that this Court

has rightly taken a view in the case of Anil Agrawal v/s The State of

Madhya Pradesh & Others Neutral Citation No.2025:MPHC-

IND:18693 that the Bank / Financial Institution, in order to recover

the debts amount takes the measure provided under Section 13(4) of

the SARFAESI Act and each measures give separate cause of action

to challenge before the DRT. In most cases, the borrower either files a

separate SA under Section 17 of the SARFAESI Act, challenging

each measure or separate applications to challenge the subsequent

measures in a pending S.A. Therefore, the Division Bench of this

Court has held that all the measures should be examined under

Section 17 of the SARFAESI Act by the DRT by clubbing all the

S.As. in such circumstances, the delay beyond the period of 45 days

either impliedly condoned or liable to be condoned to decide the

validity of all the measures cumulatively. Shri Akshat Agrawal,

learned counsel, also submitted that provisions of the Limitation Act

have not been impliedly excluded by the lawmakers to entertain the

application made under Section 17 of the SARFAESI Act.

P-13. It is further submitted that the RDB Act as well as the

SARFAESI Act both exclude the remedy of the Civil Court;

therefore, the borrower has only one remedy to approach the DRT to

protect his property by challenging the arbitrary action of the Bank/

Financial Institution/Secured creditors. The borrowers or guarantors

cannot be non-suited by strictly applying the limitation period of 45

days without the authority given to the DRT to condone the delay

under Section 5 or 14 of the Limitation Act, as the case may be.

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P-14.Shri Akshat Agrawal, learned counsel, further submitted that

the proviso to Section 19 of the RDB Act gives liberty to the Bank /

Financial Institution to withdraw the application filed under Section

19 before the DRT for the purpose of taking action under the

provisions of the SARFAESI Act; therefore, there is an interplay

between the RDB Act and the SARFAESI Act. Hence, the Limitation

Act, which has been made applicable to the proceedings before the

DRT under the RDB Act, shall also be made applicable to the

proceedings under Section 17 of the SARFAESI Act.

P-15.Shri Akshat Agrawal, learned counsel, further added in his

submissions that the proceedings under Section 17 of the SARFAESI

Act are a proceeding for restoration of possession, not like a regular

suit; therefore, the limitation under Articles 127 & 128 of the

Limitation Act is 60 & 30 days respectively, and have not been made

applicable. Section 17(7) of the SARFAESI Act mandates the DRT to

dispose of the application filed under the provisions of the RDB Act

and rules made thereunder; therefore, Section 24 of the RDB Act

shall also be applicable, by which provisions of the Limitation Act

have been made applicable as a whole.

P-16.Finally, it is submitted that by virtue of Section 29(2) of the

Limitation Act, as in the SARFAESI Act, there is no express

exclusion of the Limitation, especially therefore Sections 4 to 24

(inclusive) apply to the application to be filed under Section 17 of the

SARFAESI Act despite the limitation of 45 days therein.

SUBMISSIONS OF RESPONDENT / BANK / FINANCIAL

INSTITUTION

R-1.Per contra, Shri Kishore Shrivastava, learned Senior Counsel

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appearing on behalf of respondent / Bank / Financial Institution

contended that the remedy is always a creature of statute and if the

statute creates a remedy with some restriction and limitation than

Court cannot add or subtract in it. The remedy of Section 17 of the

SARFAESI Act would be available to the borrower if the application

is preferred within a period of 45 days. The validity of a fixed period

of limitation of 45 days to approach the DRT without power to

condone or extension is not under challenge in these writ petitions ;

therefore, the learned DRT has not committed any jurisdictional

error while dismissing the SA on the ground of filing beyond 45 days.

It is further submitted that if this Court concludes that the provisions

of the Limitation Act apply to an application under Section 17, then

in his considered opinion only Section 14 applies, not Section 5 of

the Limitation Act because the proceedings under Section 17 are the

original proceedings like a suit before the Tribunal.

R-2.Shri Kishore Shrivastava, learned Senior Counsel, further

submitted that the SARFAESI Act is a complete code in itself, which

provides limitation only to the secured creditor to take measures

within the period prescribed in the Limitation Act. Learned Senior

Counsel has drawn the attention of this Court to the language of

Section 36 of the SARFAESI Act, which provides the limitation for a

secured creditor to take all or any of the measures under Section

13(4) of the SARFAESI Act unless his claim in respect of financial

assets is within the period prescribed under the Limitation Act. By

virtue of Section 36 of the SARFAESI Act, a dead claim cannot be

made alive because the secured creditor is not entitled to approach

either the Civil Court or DRT under the RDB Act.

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R-3.Learned Senior Counsel also placed reliance on Section 35 of

the SARFAESI Act, which says that this Act shall have overriding

effect over any other law which is inconsistent with the provisions of

the SARFAESI Act, and the Limitation Act is one of the laws.

R-4. Shri Kishore Shrivastava, learned Senior Counsel, has

referred to Section 37 of the SARFAESI Act which makes applicable

the Companies Act, 1956; the Securities Contracts (Regulation) Act,

1956; Security and Exchange Board of India Act, 1992 and RDB Act

and any other law for the time being in force, to the SARFAESI Act,

therefore, any other law includes Limitation Act also. Accordingly

Section 37 shall be applicable to the SARFAESI Act in addition to,

and not in derogation of. Hence, the limitation provided under

Section 17 of the SARFAESI Act shall prevail over the limitation

provided under the Limitation Act by way of addition not in

derogation. By virtue of Section 36 of the SARFAESI Act, a dead

claim cannot be made alive because the secured creditor is not

entitled to approach either the Civil Court or DRT under the RDB

Act.

R-5.Learned senior counsel has also referred to Section 35 of the

SARFAESI Act, which says that the provisions of this Act shall have

overriding effect, notwithstanding anything inconsistent therewith in

any other law for the time being in force, which includes the

Limitation Act also.Hence the prescribed limitation under the

SARFAESI Act would prevail over the limitation provided in the

Limitation Act.

R-6.Shri Kishore Shrivastava, learned Senior Counsel, has

referred to Section 24 of the RDB Act, by which the Limitation Act

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has been made applicable to “the application” made to the Tribunal

under Section 19 only. To buttress his submission, learned Senior

Counsel has placed reliance upon a judgment delivered by the Apex

Court in the case of Pegasus Assets Reconstruction Private Limited

v/s Haryana Concast Limited & Another reported in (2016) 4 SCC

47, in which it has been held that some other statute enumerated in

Section 37 can play a supplemental role along any other law for the

time being in force including the Companies Act, but obviously only

till they are consistent with the provisions of the SARFAESI Act. Had

there been an intention to include the Limitation Act with all its

provisions also, the same would have been mentioned in Section 37

of the SARFAESI Act.

R-7.Learned Senior Counsel submitted that the Apex Court in the

case of Patel Brothers v/s The State of Assam & Others reported in

(2017) 2 SCC 350 had clearly held that there can be legislative intent

to exclude the extent of the Limitation Act or, in the alternative, there

can be a legislative intent to apply only one or a few provisions

restricting the application. As is clear by reading Sections 35, 36 and

37, the Limitation Act as a whole has not been made applicable but in

a very restrictive mode, i.e. not to revive the dead claims.

R-8.Shri Kishore Shrivastava, learned Senior Counsel further

submitted that Section 24 of the RDB Act confines applicability of

provisions of entire Limitation Act as it is made applicable only to an

application defined under Section 2(b) filed under Section 19 of the

RDB Act and by virtue of Section 36 of the SARFAESI Act, the

action can be taken only in respect of a live claim. Shri Shrivastava,

learned Senior Counsel has placed reliance upon a judgment of three

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Judges' Bench in the case of International Asset Reconstruction

Company India Limited v/s Official Liquidator of Aldrich

Pharmaceuticals Limited & Others reported in (2017) 16 SCC 137,

in which the Apex Court has held that the RDB Act is a special law

and as per the scheme of the Act, the legislature has provided for

application of the Limitation Act to original proceedings before the

Tribunal under Section 19 only. The Appellate Tribunal has been

conferred the power to condone delay beyond 45 days under Section

20(3) of the Act. The prescribed period of 30 days under Section

30(1) of the RDB Act for preferring an appeal against the order of the

Recovery Officer, therefore, cannot be condoned by application of

Section 5 of the Limitation Act. Further reliance has been placed in

the case of Standard Chartered Bank v/s MSTC Limited reported in

(2020) 13 SCC 618, in which the Apex Court has held that the clear

ratio decidendi of this judgment makes it absolutely clear that the

only application referred to in Section 24 is an application filed under

Section 19 and to no other.

R-9.Shri Shrivastava, learned Senior Counsel, further addressed

us on the issue whether the DRT is a Civil Court or Court or simply a

forum to deal with an application under Section 17 of the SARFAESI

Act. The proceedings under Section 19 of the RDB Act are

considered to be judicial proceedings by virtue of Section 22(3) of

the RDB Act but there is no such similar provision in the SARFAESI

Act. It is further submitted that when the RDB Act was enacted, the

SARFAESI had not seen the light of day. The SARFAESI Act

nowhere says that the proceedings under Section 17 are deemed to be

judicial proceedings. Since DRT is not a Court, the Limitation Act as

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a whole would not apply. Learned senior counsel relies on the cases

of Consolidated Engineering Enterprises v/s Principal Secretary,

Irrigation Department & Others reported in (2008) 7 SCC 169,

M.P. Steel Corporation v/s Commissioner of Central Excise

reported in (2015) 7 SCC 58 & Ganesan v/s Tamil Nadu Hindu

Religious & Charitable Endowments Board reported in (2019) 7

SCC 108, in which the Apex Court held that the Limitation Act apply

only to the Court and no to the Tribunal or quasi-judicial authority.

R-10. Shri Kishore Shrivastava, learned Senior Counsel, concluded

his arguments by summarising all the above submissions that the

Limitation Act does not apply to the proceedings under the

SARFAESI Act, and if this Court comes to the conclusion that the

Limitation Act applies, then may hold that Section 14 applies, not

Section 5. The DRT is neither a Court nor a Civil Court. No one has

challenged the vires of any provisions of the SARFAESI Act;

therefore, by way of the order passed by this Court, provisions of the

Limitation Act cannot be made applicable to the Debt Recovery

Tribunal. Lastly, Section 36 of the SARFAESI Act provides a

limitation for a secured creditor to take any of the measures, unless

his claim in respect of financial assets is within the limitation

prescribed under the Limitation Act; therefore, the Limitation Act has

been made applicable only for the secured creditor, not for the

borrower.

R-11. Learned counsel appearing for the Bank in the review petition

has adopted the submissions made by Shri Shrivastava and prayed for

review of the order passed by this Court earlier.

APPRECIATION

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A-1.As per the statement of objects and reasons of the RDB Act,

the existing procedure for recovery of debts due to the Bank /

Financial Institution had blocked a significant portion of their fund in

unproductive assets; therefore, a recommendation was made to the

Central Government for the constitution of a special Tribunal with a

special power for adjudication of such matters and speedy recovery.

The Tiwari Committee suggested setting up a Special Tribunal for the

recovery of dues of the Bank / Financial Institution by following a

summary procedure; therefore, the Recovery of Debt Due to the Bank

& Financial Institution Act, 1993 (51 of 1993) was enacted by the

Parliament. Later on, by way of Act 31 of 2016, the words 'Due to the

Bank & Financial Institution' have been replaced by the word

'Bankruptcy', and since then, this Act became “the Recovery of Debts

& Bankruptcy Act, 1993” (in short 'the RDB Act'). The Apex Court in

the case of Union of India v/s Satyawati Tondon reported in (2010)

8 SCC 110 upheld the object of the RDB Act by observing that it

creates special machinery for the speedy recovery of dues of Bank &

Financial Institution.

A-2.Section 2(b) of the RDB Act defines application which is an

application made to a Tribunal under Section 19. Section 2(d) defines

the ''bank'' and Section 2(e) defines the ''banking company''. Section

2(g) explains the word ''debt'' and Section 2(ga) deals with the

definition of ''debt securities''. Section 2(h) defines the ''financial

institution''. According to the definition of ''property'' under Section

2(jb), it includes immovable property, movable property, etc. The

definition of ''secured creditor'' under Section 2(la) is similar to the

definition in Clause (zd) of sub-section (1) of Section 2 of the

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SARFAESI Act. Section 2(lb) defines the '' security interest'' as a

mortgage, charge, hypothecation assignment or any other right, title

or interest of any kind whatsoever upon property, created in favour of

the bank or financial institution, which is like the Definition 2(1)(zf)

of the SARFAESI Act. CHAPTER II deals with the ''Establishment of

Tribunal & Appellate Tribunal''. CHAPTER III deals with the

''Jurisdiction, Powers & Authority of Tribunals. As per the definition

of Section 17(1) of the RDB Act, the Tribunal shall exercise the

jurisdiction, powers and authority to entertain and decide applications

from the banks and financial institutions for recovery of debt due to

such banks and financial institutions. Section 18 creates a bar on the

Court or other authority in relation to any matter specified in Section

17 by the Tribunal, except the Supreme Court and the High Court

exercising jurisdiction under Articles 226 & 227 of the Constitution

of India.

A-3.Where a bank or a financial institution has to recover any

debt from any person, it may make an application to the Tribunal

under Section 19 of the RDB Act, within its local limit. The proviso

inserted by the Act 30 of 2004 gives an option to the bank and

financial institution to make an application to seek permission from

DRT to withdraw the application made under Section 19 of the RDB

Act for taking action under the SARFAESI Act. The Tribunal may

grant or refuse such permission, as the case may be. If the permission

is refused, then the Tribunal shall decide the application by following

the procedure prescribed in sub-sections (2) to (25) of Section 19.

Section 19 also gives the right to the borrower or guarantor arrayed

as defendant to submit a written statement, counterclaim, cross suit,

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set off, etc.

A-4.Before switching to the provisions of the SARFAESI Act, it

would be relevant to examine other sections/ provisions of the RDB

Act related to issues before us. Section 19 nowhere provides the

period of limitation because by virtue of Section 24, the provisions of

the Limitation Act have been made applicable, as far as may be, to an

application made under Section 19 to the Tribunal [Definition 2(b)].

Section 20(3) provides thirty days' period of limitation for filing an

appeal to the Appellate Tribunal against the order of Tribunal and as

per the proviso, the Appellate Tribunal may entertain the appeal after

expiry of thirty days if it is satisfied that there was sufficient cause

for not filing it within that period i.e. by filing an application under

Section 5 of the Limitation Act. The Appellate Tribunal has been

given the power to condone the delay under Section 5 of the

Limitation Act. Section 22 says that the Tribunal and the Appellate

Tribunal shall not be bound by the procedure laid down by the Code

of Civil Procedure, 1908, shall be guided by the principle of natural

justice and shall have the power to regulate their own procedure. In

certain matters, namely summoning and enforcing the witness,

discovery and production of documents, receiving evidence on

affidavit, issuing commissions, reviewing its decisions, dismissing in

default, etc. The Tribunal shall have the same powers which are

vested in the Civil Court. By virtue of Section 22(3), any proceedings

before the Tribunal or Appellate Tribunal shall be deemed to be a

judicial proceeding within the meaning of Sections 193 & 228, and

for the purpose of Section 193 of the Indian Penal Code. It further

says that the Tribunal or Appellate Tribunal shall be deemed to be a

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Civil Court for all purposes of Section 195 and Chapter XXVI of the

Code of Criminal Procedure, 1973. Therefore, the Tribunal or

Appellate Tribunal established under the RDB Act are the Court and

the proceedings shall be deemed to be judicial proceedings. Section

24 deals with the limitation, according to which the provisions of the

Limitation Act, 1963, shall, as far as may be, apply to an application

made to the Tribunal. Therefore, there is no quarrel on the issue that

the provisions of the Limitation Act have been made applicable to the

Tribunal in an application made under Section 19.

A-5.CHAPTER – V deals with the Recovery of Debt Determined

by the Tribunal or by the Recovery Officer on receipt of a copy of the

certificate under sub-section (7) of Section 19. Section 30 gives a

remedy of appeal against the order of the Recovery Officer that is

preferred within thirty days from the date of the order. Section 34

gives an overriding effect over the Act mentioned in sub-section (2),

if there is no inconsistency. The Act mentioned in sub-section (2) of

Section 34 deals with the issue between the borrower and the

financial institution, i.e. the same field on which the RDB Act has

been made applicable. The Debt Recovery Tribunal Procedural Rules,

1993 confer power upon the Tribunal and Appellate Tribunal and

prescribe procedure to decide the application and appeal.

A-6.As per the statement of object and reasons of the SARFAESI

Act, 2002, Narasimham Committee I & II and Andhyarujina

Committee constituted by the Central Government suggested

enactment of new legislation for securitisation and empowering the

bank and financial institution to take possession of the security and to

sell them without the intervention of the Court. The Securitization

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and Reconstruction of Financial Assets and Enforcement of Security

Interest Ordinance, 2002 was promulgated on the 21

st

June, 2002

inter alia empowering the bank/financial institution/ secured creditor

to take possession of the securities given for financial assistance and

sale or lease the same or take over management in the event of

default i.e. classification of borrowers' account as NPA in accordance

with the direction given by the Reserve Bank of India from time to

time. The aforesaid Ordinance and Bill came on the Statutes Book as

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 w.e.f. 21

st

June, 2002,

after getting the assent of the President on 17

th

December, 2002.

A-7.The SARFAESI Act also provides a remedy of an appeal/

application against the action of the bank / financial institution to the

concerned DRT and a second appeal to the Appellate Tribunal. As per

definition 2(1) of the SARFAESI Act, the Appellate Tribunal is the

same Tribunal established under Section 8(1) of the RDB Act.

Section 2(f) defines ''borrower'' which is missing in the RDB Act as a

person who has been granted financial assistance by the bank or

financial institution or who has given any guarantee, created any

mortgage or pledge as a security for such financial assistance. The

definition of ''debt'' under 2(ha) is identical to the definition under

2(g) under the RDB Act. As per definition 2(i), ''Debt Recovery

Tribunal'' means the Tribunal established under sub-section (1) of

Section 3 of the RDB Act. Definition 2(ia) is ''debt securities'', 2(j) is

''default'', 2(k) is ''financial assistance'', 2(l) is ''financial asset'', 2(m)

''financial institution'' etc. Therefore, by virtue of these definitions,

the DRT and DRAT constituted under the RDB Act shall have the

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same meaning as the Tribunal and Appellate Tribunal under the

SARFAESI Act.

A-8.CHAPTER II deals with the Regulation of Securitisation and

Reconstruction of Financial Assets of Banks and Financial

Institutions and they are not concerned with the issue involved in this

case. CHAPTER III, which deals with the Enforcement of Security

Interest, comprises Sections 13 to 19.

A-9.If the bank or financial institutions had already approached

the DRT by filing an application under Section 19 to recover debts

from any persons, then during pendency of such application if the

bank decides to invoke the provisions of SARFAESI Act, 2002 for

enforcement of security interest, then an application is liable to be

moved under first proviso of sub-section (1) of the Section 19 to seek

permission from the Tribunal and if no such application under

Section 19 is filed or pending, then the bank / financial institution /

secured creditor may directly invoke the provisions of Section 13 of

the SARFAESI Act. By virtue of Section 13(10), when the secured

creditor is not fully satisfied with the sale proceeds of secured assets,

the secured creditor may file an application in the Form and manner

as may be prescribed to the DRT having jurisdiction or competent, as

the case may be, for recovery of the balance amount from the

borrower. Therefore, the bank / financial institution / secured creditor

shall have the option to proceed against the borrower or guarantor to

recover a debt under the RDB Act as well as the SARFAESI Act.

After invoking the provisions of the SARFAESI Act, if the due/debt

is not fully satisfied, then again the bank / financial institution can

approach the Tribunal under the RDB Act. The forum under both the

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enactments is common, i.e. DRT and DRAT, and the purpose of both

the Acts is the same, i.e. to facilitate the bank / financial institution to

recover the debts from the defaulter/borrower.

A-10.Under Section 13 of the SARFAESI Act, any security interest

created in favour of any secured creditor may be enforced, without

the intervention of the Court or Tribunal, by such creditor in

accordance with the provisions of this Act. In case of any default in

making repayment of secured debts or any instalment thereof, and his

account in respect of such debt is classified as a non-performing asset

(NPA), then the secured creditor is required to send a notice in

writing to the borrower to discharge in full his liabilities to the

secured creditor within sixty days. In the event of non-discharging his

liability in full, the secured creditor may take recourse to one or more

measures provided under sub-section (4), which are as under:-

''(a)take possession of the secured assets of the borrower,

including the right to transfer by way of lease, assignment or

sale for realising the secured asset;

(b)take over the management of the business of the

borrower, including the right to transfer by way of lease,

assignment or sale for realising the secured asset:

Provided that the right to transfer by way of lease,

assignment or sale shall be exercised only where the

substantial part of the business of the borrower is held as

security for the debt:

Provided further that where the management of the

business or part of the business is severable, the secured

creditor shall take over the management of such business of

the borrower which is related to the security or the debt.''

A-11.In between, if on receipt of notice under sub-section (2), the

borrower makes any representation or raises any objection, the

secured creditor shall and if comes to the conclusion that the same is

not acceptable or tenable, it shall communicate the reasons within 15

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days and such reasons/rejection are not liable to be challenged by

way of an application under Section 17 of the SARFAESI Act before

the DRT as per proviso to sub-section (3A) of Section 13. At this

stage, the borrower has no remedy to approach the DRT challenging

the demand after declaration of NPA and proposed action under sub-

section (4) and non-consideration or rejection of the reply. In the

event of non-discharging of liabilities in full within sixty days if the

secured creditor takes possession of the secured assets including right

to transfer by way of lease, assignment or sale, the secured assets

shall be at the discretion of the secured creditor to sale by following

the procedure prescribed under Rules 6, 7, 8 and 9 of the Security

Interest (Enforcement) Rules, 2002.

A-12.As per Section 13(6) of the SARFAESI Act, any transfer of a

secured asset after taking possession thereof or taking over the

management by the secured creditor, as the case may be, the

transferee shall have all rights as if the transfer had been made by the

owner of such secured asset. Section 14 gives the option to the

secured creditor to take assistance from the District Magistrate / CJM

for taking possession or control of such secured asset by filing an

appropriate application before the auction sale. For the purpose of

securing the compliance with the provision of sub-section (1), the

District Magistrate may take or cause to be taken such steps and use,

or cause to be used, such force, as may, in his opinion, be necessary,

and such an act shall not be called in question in any Court or before

any authority. Section 15 deals with the Manner and effect of take

over of management.

A-13.Now Section 17 of the SARFAESI Act comes into play, under

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which any person including borrower, aggrieved by any or all of the

measures referred to in sub-section (4) of Section 13 taken by the

secured creditor or its authorized officer may make an application to

the DRT having jurisdiction in the matter within 45 days from the

date on which such measure has been taken. Under Section 13(4),

there are as many as four types of the measures which the secured

creditor may take to recover his secured debt (i) possession (either

symbolic or physical); (ii) lease; (iii) assignment; (iv) sale; (v) taking

over management of the business including the same right to transfer

by way of lease, assignment or sale. Therefore, the application under

Section 17 lies to challenge every measure or all within 45 days from

the date on which such measure has been taken separately,

independently or cumulatively or collectively.

A-14.Section 17(2) casts obligation upon the DRT to consider and

decide whether any of the measures referred to in sub-section (4) of

Section 13 are in accordance with the provisions of this Act and rules

made thereunder and if the DRT after examining the fact and

circumstances of the case and evidence produced by the parties

concludes that any of the measures referred to in sub-section (4) of

Section 13 are not in accordance with the provisions of this Act and

the rules, may pass an order of restoration of the management or

restoration of possession of the secured asset of the borrower or any

other aggrieved persons by declaring recourse to any one or more

measure as invalid along with restoration of possession to borrower

or any such person who has made an application under sub-section

(1) or pass other direction as it may consider appropriate and

necessary. Under sub-section (4), if the DRT declares the recourse

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taken by a secured creditor is in accordance with the provisions of

this Act and the rules, then the secured creditor shall be entitled to

take recourse to any one or more of the measures specified under

sub-section (4) of Section 13 to recover his secured debt. There is

confusion under sub-section (1) that if the recourse under sub-section

(4) of Section 13 had already been taken by the secured creditor and

such recourse had been upheld by the Tribunal, then further recourse

is available, which the secured creditor shall be entitled to take.

A-15.The controversy before the DRT is whether the delay in filing

the application under Section 17(1) beyond 45 days is liable to be

condoned under the provisions of the Limitation Act or not?

A-16.Section 36 of the SARFAESI Act is about the applicability of

the Limitation Act, under which no secured creditor shall be entitled

to take all or any of the measures under sub-section (4) of Section 13,

unless his claim in respect of the financial asset is made within the

period of limitation prescribed under the Limitation Act. Therefore,

the Limitation Act has been made applicable only for secured

creditors for taking measures under sub-section (4) of Section 13

because under this Act any proceeding are liable to be initiated by the

bank / FI/ secured creditors only. The borrower only get remedy after

taking all or any measures by the security creditor. The applicability

of the Limitation Act comes into operation to borrower after the steps

are taken by the secured creditor.

A-17.Shri Kishore Shrivastava, learned Senior Counsel, is right in

making the submission that the dead claim cannot be made alive

under the SARFAESI Act. It is also important to take note that there

is no specific exclusion of the Limitation Act under the SARFAESI

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Act, and by virtue of Section 24 of the RDB Act, the provisions of

the Limitation Act apply to the DRT for all the applications to be

filed.

A-18.Under the RDB Act or SARFAESI Act, the process for

recovery of debt is liable to be initiated by the secured creditor alone.

Under the RDB Act, the process starts after filing of an application

under Section 19, for which the Limitation Act as a whole has been

made applicable. Under the SARFAESI Act, the proceedings are

liable to be set into motion by issuing notice under Section 13(2)

followed by measures/recourses under sub-section (4), for which also

the Limitation Act has been made applicable. By virtue of Section 36,

the borrower becomes a defendant and contests the proceedings by

filing a written statement, counterclaim, etc., for which the limitation

is also applicable. The proceedings under Section 19 of the RDB Act

are the original proceedings and judicial proceedings. As discussed

above, an option is available to the secured creditor to exercise the

power under the SARFAESI Act to recover the debts. By such

measures, the aggrieved person, including the borrower, can

challenge such action by filing an application under Section 17 of the

SARFAESI Act before the DRT. These proceedings under Section 17

shall be the original and judicial proceedings and for recovery of the

balance amount, the secured creditor may approach the DRT and as

per Rule 11 of the Security Interest (Enforcement) Rules, 2002, the

provisions of the Debts Recovery Tribunal (Procedure) Rules, 1993

shall mutatis mutandis apply to the application filed under sub-rule

(1) of Rule 11. Such an application shall be decided as an application

under Section 19 of the RDB Act. Therefore, in order to recover the

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complete debts, the secured creditor can switch the remedies between

these two acts. Both the proceedings are liable to be treated as

judicial proceedings, and the Tribunal is the only forum available to

secured creditors as well as borrowers to adjudicate the issue related

to the recovery and realisation of debt. Therefore, it cannot be said

that the Limitation Act does not apply to the proceedings of the DRT.

If the limitation Act has been made applicable for secured

creditors/banks/financial institutions to approach the DRT or to

realise the secured debt under the SARFAESI Act then the issue

whether, the DRT is a Court or the proceedings under Section 17 are

judicial proceedings for applicability of the Limitation Act becomes

redundant.

A-19. The Limitation Act, 1963, deals with the law of limitation of suit

and further proceedings. Section 2(a) defines 'applicant', which includes

the petitioner or any other person through whom the applicant derives

his right and whose estate is represented. As per Section 2(b),

'application' includes a petition. Section 2(j) defines 'period of

limitation', according to which period of limitation is prescribed for any

suit, appeal or application by the Schedule, and 'prescribed period'

means the period of limitation computed in accordance with the

provisions of this Act. The 'suit' is defined in Section 2(l), which does

not include an appeal or an application. Therefore, the prescribed period

is different from the computation of prescribed period. The prescribed

period is fixed period provided under the statute or in limitation Act, but

how such period is to be calculated or counted is also provided in the

limitation Act under Part III.

A-20.Section 3 of Part – II puts a bar of limitation for every suit

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instituted, appeal preferred, and application made after the prescribed

period shall be dismissed, subject to the provisions contained in

Sections 4 to 24. Where the prescribed period expires on a day when

the Court is closed, the suit, appeal or application may be instituted,

preferred or made on the date when the Court reopens. Therefore, by

virtue of Section 4, the prescribed period gets extended due to the

closure of the Court. Section 5 of the Limitation Act deals with the

extension of the prescribed period for appeal or any application

which may be admitted after the prescribed period, if the appellant or

applicant satisfies the Court that he had sufficient cause for not

preferring the appeal or making the application within such period. In

normal terms, it is called the delay in preferring the appeal or making

an application, which is liable to be condoned by the Court under

Section 5, if sufficient causes are shown. Under this provision, the

prescribed period of limitation gets extended by the Court.

A-21.Part III of the Limitation Act deals with the Computation of

the Period of Limitation. Under Section 12, in computing the period

of limitation for any suit, appeal or application, the day from which

such period is to be reckoned shall be excluded. As per Section 13,

the period consumed in getting the leave to sue as a pauper is liable

to be excluded. Under Section 14, the period during which the

plaintiff has been prosecuting with due diligence another civil

proceeding related to the same matter shall be excluded. Sections 15

to 21 provide various circumstances under which time consumed

shall be excluded while computing the period of limitation; therefore,

only under Section 5, the Court has the power to extend the period in

preferring the appeal or making any application by condoning the

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period of delay. But under Sections 12 to 21of Part III, the period of

limitation remains the same, but it gets paused for a certain period or

eventuality therein. Section 5 applies only in case of appeal or

application, whereas Part III applies in every proceeding of suit,

appeal or application where the period of limitation is prescribed.

A-22.The Schedule appended to the Limitation Act prescribes the

period of limitation divided into three divisions; the first division

deals with the period of limitation in respect of suits; the second

division prescribes the limitation for appeals; and the third division

prescribes the limitation in specified cases.

A-23.Section 29(2) of the Limitation Act is reproduced below:-

''29. Savings

(1) ****

(2) 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 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.''

[Emphasis Supplied]

A-24.It is clear from the above provision that any suit filed, appeal

preferred and application made under any special or local law, the

provisions contained in Sections 4 to 24 (inclusive) of the Limitation

Act shall apply only in so far as, and to the extent to which, they are

not expressly excluded by such special or local law. Meaning thereby

the Limitation Act applies to all the laws unless expressly excluded.

The aforesaid Section 29(2) has been relied by the learned counsel

for the petitioners by submitting that as per sub-section (2), the

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provisions contained in Sections 4 to 24 of the Limitation Act shall

apply only in so far as, and to the extent to which, they are not

expressly excluded by such special or local law and Section 17 of the

SARFAESI Act nowhere excludes the applicability of Sections 4 to

24 of the Limitation Act. Whereas learned Senior counsel for the

respondent argued that Section 17(5) specifically provides a period of

45 days to apply the DRT by the aggrieved person. By virtue of

Section 36 of the SARFAESI Act, the Limitation Act has been made

applicable only for the secured creditor for taking all or any of the

measures under sub-section (4) of Section 13, but not excluded in the

Section 17(1) proceedings. Hence, we can safely hold that the

provisions of the Limitation Act apply to the proceedings under

section 17 of the SARFAESI Act.

A-25.Shri Kishore Shrivastava, learned Senior Counsel, has argued

that by virtue of Section 35, the provisions of the SARFAESI Act

shall have overriding effect over any other law including the

limitation; therefore, the period of limitation prescribed in the

SARFAESI Act shall prevail over the Limitation Act.

A-26.In the case of Vishal N. Kalsaria v/s Bank of India &

Others reported in AIR 2016 SC 30, the Apex Court has held that the

expression 'any other law for the time being in force' cannot mean

to extend to each and every law. It can only extend to the laws

operating in the same field, hence the contention of learned senior

counsel is hereby rejected.

A-27.Section 37 says that the provisions of the SARFAESI Act and

the rules made thereunder shall be in addition to any other law for the

time being in force, which means the law operating in the same field.

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For the applicability of the Limitation Act, Section 36 is already

there; therefore, Sections 35 & 37 will not affect the applicability of

the Limitation Act.

A-28.As held above, the bank / financial institution / secured

creditor has a choice to initiate the proceedings against the borrower/

guarantor either under the RDB Act or the SARFAESI Act. The

proceedings get initiated under the SARFAESI Act only at the

instance of the secured creditor by taking measures under CHAPTER

III. Only after taking such measures, the borrower gets an occasion to

challenge the same by applying Section 17(1) before the DRT, and if

such an application is filed, under Section 17(7), the DRT shall, as far

as may be, dispose of the application in accordance with the

provisions of the RDB Act and the rules made thereunder.

A-29.Under the RDB Act, the proceedings get initiated by filing an

application under Section 19 by the financial institution for recovery

of any debt from any person, for which the Limitation Act has been

made applicable by virtue of Section 24. If the financial

institution/bank / secured creditor initiates the proceedings under the

RDB Act, then the process starts by filing an application before the

Tribunal. After following the procedure prescribed under Section 19

or the rules made thereunder, the Tribunal makes an order and gives a

direction, as may be necessary for recovery of the debt and after

getting such an order, the recovery of the debt determined by the

Tribunal is liable to be recovered under CHAPTER V by a Recovery

Officer. The order passed by the Recovery Officer is liable to be

challenged under Section 30 of the RDB Act by way of appeal before

the Tribunal.

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A-30.The aforesaid entire process from Sections 19 to 30 of the

RDB Act get cut short or bypassed if the secured creditor decides to

proceed by taking measures under Section 13 of the SARFAESI Act.

After issuing notice under Section 13(2), the secured creditor takes

possession of the secured property or takes over the management of

the business with the right to sell. After realising the debt by sale of

the secured assets by way of auction or other mode, the bank only

needs to approach under Section 19 of the RDB Act if the debt

remains. After taking action under Section 13 of the SARFAESI Act,

the only remedy available to the borrower is to approach the DRT

under Section 17. If the bank initiates a proceeding under the RDB

Act, the borrower gets a complete opportunity to submit a written

statement, counterclaim, cross suit, set off, etc., and thereafter, both

parties are required to adduce evidence. But the measures taken under

Section 13 of the SARFAESI Act, the borrower does not even get an

opportunity to challenge these proceedings until the measures are

taken under Section 13. Section 34 bars the jurisdiction of the Civil

Court to grant an injunction. Therefore, in such a situation, when the

bank / financial institution / secured creditor initiates the proceedings

under the SARFAESI Act by taking all or any of the measures, then

the borrower cannot be non-suited after 45 days if he fails to make an

application under Section 17 of the SARFAESI Act.

A-31.The borrower whose entire property's possession has been

taken and sold is required to travel all the way from the Principal Seat

of the DRT which is established in one city of the state for filing an

application. At present in the State of Madhya Pradesh, there is only

one seat of the DRT at Jabalpur at present, which is vacant, and the

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DRT at Allahabad has been given charge of M.P. and Chhattisgarh.

Therefore, the borrower has to travel all the way from one part of the

state to another part even to other state to file an application under

Section 17 of the SARFAESI Act within 45 days. As we have noticed

most of the time, before taking legal recourses the borrower

approaches the concerned secured creditors/banks/financial

institutions for settlement of the loan amount by way of OTS etc ,

and the bank doesn't take any decision or refers the matter to the head

office, and by that time, the period of 45 days gets consumed. All

these grounds can be taken in order to get the delay condoned or

extension of the period of limitation. There could be various reasons,

as enumerated under Sections 12 to 21 of the Limitation Act,or other

which cannot be imagined at this stage (like covid-19 pandemic) for

extension of the prescribed period of limitation by excluding several

days within a period of 45 days of limitation. Therefore, the entire

limitation Act cannot be excluded for entertaining the application

under Section 17 by the DRT in the interest of justice.

A-32.Now we are required to consider the judgments relied on by

the learned counsel of the parties. In the case of Mardia Chemicals

Limited (supra), the Apex Court has held that the appeal / application

lies to the Tribunal by the borrower only after some measure has been

taken under Section 13(4) of the SARFAESI Act and not before the

stage of taking such measure. The jurisdiction of the Civil Court is

very limited within a narrow scope and on limited grounds entertain,

it entertains suits relating to the subject matter of recovery of secured

assets by the secured creditors. The Apex Court has further held that

the proceedings under Section 17 of the SARFAESI Act, in fact, are

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not the appellate proceedings, but a proceeding like filing a suit in the

Civil Court. In fact, the proceedings under Section 17 are, instead of

the civil suit, the remedy of which is ordinarily available but for the

bar under Section 34 of the SARFAESI Act in the present case.

A-33. In the case of Transcore (supra), the Apex Court has held that

the Tribunal under Section 17(1) exercises original jurisdiction by

confirming the view taken in the case of Mardia Chemicals Limited

(supra).

A-34.In the case of Consolidated Engineering Enterprises (supra),

the Apex Court while dealing with the applicability of the provisions

of Limitation Act in a proceedings under Section 34(4) of the

Arbitration & Conciliation Act, 1996 held that proviso to Section 5 of

the Limitation of Act would not be available because the applicability

of Section 5 of the Limitation Act stands excluded because of the

provisions under Section 29(2) of the Limitation Act. It is also held

that merely because Section 5 of the Limitation Act is not applicable,

one need not conclude that provisions of Section 14 of the Limitation

Act would also not be applicable because Section 14 of the

Limitation Act deals with exclusion of time of proceeding bona fide

in a Court without jurisdiction. Justice R.V. Ravindran added his one

reasoning in the judgment by saying that there is no express

exclusion of any provisions of Limitation to the proceedings under

the Arbitration & Conciliation Act. The object of Section 29(2) of the

Limitation is to ensure that the principle contained in Sections 4 to 24

of the Limitation Act applies to a suit, appeal or application filed in

the Court under special or local law also even if it prescribes the

period of limitation different from it prescribed under the Limitation

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Act, except to the extent to express exclusion of the application of

any or any of those provisions.

A-35.In the case of M.P. Steel Corporation (supra), the Apex Court

held that the principle of Section 14 of the Limitation Act, which is a

principle based on advancing the cause of justice, would certainly

apply to exclude time taken in prosecuting proceedings which are

bonafide and with due diligence pursued on the merits of the case.

A-36.In the case of Baleshwar Dayal Jaiswal (supra), the Apex

Court has held that unless the scheme of the statute expressly

excludes the power of condonation, there is no reason to deny such

power to an Appellate Tribunal when the statutory scheme so

warrants. It is also held that the RDB Act and the SARFAESI Act are

complementary to each other, as held by this Court in the case of

Transcore (supra). Paragraphs – 7, 13, 14 & 15 of Baleshwar Dayal

Jaiswal (supra) are reproduced below:-

7.The first point for consideration is the applicability of

proviso to Section 20(3) of the RDDB 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 RDDB Act. In this respect, the provisions of the RDDB

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 RDDB 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

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condonation, there is no reason to deny such power to an

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 v. State of

Bihar [(1969) 3 SCC 471 : 1970 SCC (Cri) 154], Bolani Ores

Ltd. v. State of Orissa [(1974) 2 SCC 777], Mahindra and

Mahindra Ltd. v. Union of India [(1979) 2 SCC 529] and

Onkarlal Nandlal v. State of Rajasthan [(1985) 4 SCC 404 :

1986 SCC (Tax) 34] relied upon on behalf of the appellants.

We have thus no hesitation in holding that the 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) of

the SARFAESI Act and the proviso to Section 20(3) of the

RDDB Act.

13.The Andhra Pradesh High Court in Sajida Begum case

[2012 SCC OnLine AP 195 : AIR 2013 AP 24] in holding the

Tribunal to be court, has relied on Sections 22 and 24 of the

RDDB Act. Section 22 vests powers of civil court in the

Tribunal only for purposes mentioned therein, such as

summoning witnesses, discovery and production of

documents, receiving evidence, issuing commission for

examining witnesses, etc. and deems the Tribunals to be

courts for specified purposes, such as for Sections 193, 196

and 228 of the Penal Code, 1860 and Section 195 of the

Criminal Procedure Code. These provisions may not be

conclusive of the question of the Tribunal being court for

Section 29(2) of the Limitation Act without further examining

the scheme of the statutes in question. In Nahar Industrial

Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn.

[(2009) 8 SCC 646 : (2009) 3 SCC (Civ) 481] , this Court

examined the scheme of the two Acts in question and held

that the Tribunal was a court but not a civil court for the

purposes of Section 24 CPC. We are of the view that for the

purposes of decision of these appeals, it is not necessary to

decide the question whether the Tribunal under the banking

statutes in question is court for purposes of Section 29(2) of

the Limitation Act.

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

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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 :

(2015) 3 SCC (Civ) 510] .

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.''

A-37.The Apex Court has held 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 Baleshwar Dayal Jaiswal (supra),Consolidated Engineering

Enterprises (supra), & M.P. Steel Corporation (supra).

A-38.So far as the case of International Asset Reconstruction

Company of India Limited (supra) is concerned, the Apex Court held

that delay in an appeal filed under Section 30 of the RDB Act cannot

be condoned. But in the present case, we are dealing with the

applicability of the Limitation Act in an appeal filed under Section 17

of the SARFAESI Act, which is the first and only remedy for the

borrower to take back his property.

A-39.In the case of Ganeshan (supra), the Apex Court has held that

Section 29 of the Limitation Act also came up for consideration

before this Court in several cases. There is another set of cases where

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it was held that no provisions of the Limitation Act are to be applied

even for a suit, application or an application under a special law,

which is to be filed before the statutory authority and the Tribunal.

The Apex Court finally concluded that the suit, appeal or application

referred to in the Limitation Act are suits, appeals or applications

which are to be filed in Court and not before a statutory authority,

like a Commissioner under the Act of 1959. Operation of Section

29(2) of the Limitation Act is confined to the suit, appeal or

application referred to in special or local law to be filed in a Court

and not before the statutory authority. However, special or local law

vide statutory scheme can make applicable any provision of the

Limitation Act or exclude the applicability of the Limitation Act,

which can be decided after looking at the scheme of particular,

special or local law.

A-40.In the case of Superintending Engineer / Dehar Power House

Circle (supra), the Apex Court has held that the key principle for

determining the applicability of provisions of the Limitation Act to a

special law is to consider the scheme of each special law in detail to

determine whether there is any express or implied exclusion of

provisions of Limitation Act or not?

A-41.The High Court of Punjab & Haryana in the cases of M/s

Fair Style Embroidery Works (supra) & M/s Oswal Spinning and

Weaving Mills Limited & Others v/s UCO Bank & Another (CWP

No.21519 of 2018) Neutral Citation: 2018:PHHC:124488-DB has held

that the provisions of Limitation Act are available to the DRT while

dealing with an application under Section 17(1) of the SARFAESI Act

after the prescribed period of 45 days.

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A-42.In the case of K.V. Rao v/s B.N. Reddi reported in AIR 1969

SC 872, the Apex Court considered the express exclusion of the

Limitation Act by interpreting Section 29(2) and the same reads

thus:-

''12.It is well settled that amendments to a petition in a civil

proceeding and the addition of parties to such a proceeding

are generally possible subject to the law of limitation. But an

election petition stands on a different footing. The trial of

such a petition and the powers of the court in respect thereof

are all circumscribed by the Act. The Indian Limitation Act of

1963 is an Act to consolidate and amend the law of limitation

of suits and other proceedings and for purposes connected

therewith. The provisions of this Act will apply to all civil

proceedings and some special criminal proceedings which can

be taken in a court of law unless the application thereof has

been excluded by any enactment : the extent of such

application is governed by Section 29(2) of the Limitation

Act. In our opinion however the Limitation Act cannot apply

to proceedings like an election petition inasmuch as the

Representation of the People Act is a complete and self-

contained code which does not admit of the introduction of

the principles or the provisions of law contained in the Indian

Limitation Act.''

A-43.In the case of Chhattisgarh SEB v/s Central Electricity

Regulatory Commission reported in (2010) 5 SCC 23, the Apex Court

held as under :-

28.In Hukumdev Narain Yadav v. Lalit Narain Mishra

[(1974) 2 SCC 133] this Court interpreted Section 29(2) of the

Limitation Act in the backdrop of the plea that the provisions

of that Act are not applicable to the proceedings under the

Representation of the People Act, 1951. It was argued that the

words “expressly excluded” appearing in Section 29(2) would

mean that there must be an express reference made in the

special or local law to the specific provisions of the

Limitation Act of which the operation is to be excluded.

While rejecting the argument, the three-Judge Bench

observed: (SCC p. 146, para 17)

“17. … what we have to see is whether the scheme of

the special law, that is in this case the Act, and the

nature of the remedy provided therein are such that the

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legislature intended it to be a complete code by itself

which alone should govern the several matters

provided by it. If on an examination of the relevant

provisions it is clear that the provisions of the

Limitation Act are necessarily excluded, then the

benefits conferred therein cannot be called in aid to

supplement the provisions of the Act. In our view, even

in a case where the special law does not exclude the

provisions of Sections 4 to 24 of the Limitation Act by

an express reference, it would nonetheless be open to

the court to examine whether and to what extent the

nature of those provisions or the nature of the subject-

matter and scheme of the special law exclude their

operation.”

A-44.In the case of Gopal Sardar v/s Karuna Sardar reported in

(2004) 4 SCC 252 has again held as under:-

''9.An important departure is made in Section 29 sub-section

(2) of the Limitation Act of 1963. Under the Indian Limitation

Act, 1908 Section 29(2)(b) provided that for the purpose of

determining any period of limitation prescribed for any suit,

appeal or application by any special or local law the

application of Section 5 of the Limitation Act was specifically

and in clear terms excluded, but under Section 29(2) of the

present Limitation Act, Section 5 shall apply in case of special

or local law to the extent to which it is not expressly excluded

by such special or local law. In other words, application of

Section 5 of the Limitation Act stands excluded only when it

is expressly excluded by the special or local law. The

emphasis of the argument by the learned counsel, who argued

for the proposition that Section 5 of the Limitation Act is

applicable to an application made for enforcement of rights of

pre-emption under Section 8 of the Act was on the ground that

the Act has not expressly excluded the application of Section

5 of the Limitation Act.''

A-45.In Section 17(1) of the SARFAESI Act, there is no such

expression or words like that “the Tribunal shall not entertain

application beyond 45 days” or application shall be dismissed” hence,

there is neither express nor implied exclusion of Limitation Act therein.

A-46.As discussed above, in order to recover the debts amount that

the Banks / Financial Institutions/ secured creditors ,takes the

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measures as provided under Section 13(4) of the SARFAESI Act and

each measures give separate cause of action to challenge before the

DRT by any person. In most cases, the borrower either files a

separate SA under Section 17 of the SARFAESI Act, challenging

each measure or separate amendment applications to challenge the

subsequent measures in a pending S.A. as held by us (supra) that all

the measures should be examined under Section 17 of the SARFAESI

Act by the DRT by clubbing all the S.As. in such circumstances,

hence, the delay beyond the period of 45 days either impliedly

condoned or liable to be condoned to decide the validity of all the

measures cumulatively by the Debt Recovery Tribunal.

CONCLUSIONS

C-1. The borrower’s sole remedy lies before the Debts Recovery

Tribunal (DRT) under sub-section (1) of Section 17 of the

SARFAESI Act to challenge any or all the measures of the secured

creditor and to seek recovery of the property from the purchaser.

Consequently, if the borrower intends to protect or reclaim the

property, no other Court, forum, or authority—other than the DRT—

has jurisdiction in this matter. The borrower is barred from

approaching the Civil Court under Section 34 of the SARFAESI Act

and is also precluded from invoking the writ jurisdiction of the High

Court under Article 226 of the Constitution of India, owing to the

availability of an alternative statutory remedy. Therefore, the DRT

remains the only competent forum available to the borrower for

redressal of grievances and for restoration of the property. The

provision before the DRT, at the instance of borrower or any person

shall be an original proceeding, hence, provisions of Sections 4 to 24

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(both inclusive) of the Limitation Act, 1963 shall apply.

C-2. In light of the above discussion, it is held that the delay in

filing an application / appeal / petition under Section 17(1) of the

SARFAESI Act can be condoned by the DRT by invoking the

provisions of the Limitation Act, 1963

C-3. M.P. No.6432 of 2023, M.P. No.4104 of 2023 are hereby

allowed and R.P. No.453 of 2024 is hereby dismissed. The impugned

orders passed by the DRT in both Miscellaneous Petitions are hereby

set-aside and the respective S.As. are remanded back for deciding the

application filed under Section 5 of the Limitation Act afresh on

merit.

(VIVEK RUSIA)

J U D G E

(BINOD KUMAR DWIVEDI)

J U D G E

Ravi