Limitation under sarfaesi act
MD JAMAL MUSTAFA
(Querist) 17 March 2013
This query is : Resolved
WILL THE BORROWER LOOSE HIS RIGHT RIGHT TO APPEAL U/S 17 IF HE DOES NOT APPEAL WITHIN 45 DAYS. IN THIS CIRCUMSTANCES WHAT SHOULD BE DONE.
devdatta Jadhav
(Expert) 17 March 2013
appeal may be allowed if delay is justified/reasonable
c.p.s. ramachary
(Expert) 17 March 2013
See my Article on applicability of provisions of Limitation Act to find the answer to your query
Arjunsingh Saoji
(Expert) 17 March 2013
The time limit of 45 days provided in the section 17 of SARFAECI Act within which the affected party has to approach DRT challenging the action under section 13 can not be exceeded by taking shelter under section 5 of Limitation Act
Akshat Commercial Pvt Ltd Vs Kalpana Chakraborty andOther 2010(2)DRTC 362 Calcutta
prabhakar singh
(Expert) 17 March 2013
Agree with what says Mr.Arjunsingh Saoji.
Section 5 Limitation Act can not be invoked to govern original causes.It does not apply to suits then how can it apply to a cause of action to initiate which a specific enactment has provided a 45 days limitation but has not specifically provided for any condonation in manner, for instance, Consumer Protection Act has provided for condonation of delay in filling complaints.
prabhakar singh
(Expert) 17 March 2013
Dear Sir c.p.s. ramachary!
I saw it and found it academically sound.
"Secured creditor has to take higher degree of care and caution to acquire secured assets"
But that does not address the limitation point posed here in this query.
R.K Nanda
(Expert) 17 March 2013
state full facts.
Nadeem Qureshi
(Expert) 17 March 2013
Dear Querist
agree with Mr. Arjun and Prabhakar
DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 March 2013
Yes it is grey area while the act specifies it as appeal but it is original action before a DRT.
If stakes are high than only first make an application before DRT with delay condonation application which may be rejected , go to appeal before DART and than to HC under writ jurisdiction for declaration of this provision as ultra vires.
We went upto DRAT in similar matter but party made partial compromise since both have to also incur heavy legal costs.
c.p.s. ramachary
(Expert) 17 March 2013
Dear Mr. Prabhakar Singh,
I referred to my Article on "applicability of Sec. 5 of Limitation Act to Sec.17 proceedings" dated 8.12.2012 while answering the query and not the Article “Secured creditor has to take higher degree of care and caution to acquire secured assets” dated 01.03.2013.
On this issue i.e.on applicability of Sec.5 of Limitation Act to Sec.17 and 18 proceedings,there are controversies among various High Courts.
Supreme Court may take a similar view as taken by Bombay, Madras(in Ponnusamy and Anr. Vs. DRT Coimbatore and Anr.: 2009(2) CTC 302) & Allahabad High Courts on this crucial issue differing with the view taken by Calcutta High Court in Akshat Commercial Pvt. Ltd. Vs. Kalpana Chakraborty : AIR 2010 Cal.138 and the view taken by Kerala High Court in Jayan Vs. HSBC : IV (2009) BC 365 in the light of the judgment in L. K. Trust vs. EDC Ltd. : 2011(2) D.R.T.C. 305 (S.C.)and Mardia Chemical's case.
In my opinion borrower can seek for condonation of delay and need not loose his case or property if he is able to show sufficient cause for the delay.
RAJU O.F.,
(Expert) 17 March 2013
As informed by Ramachary Sir, there are different decisions on the point of limitation in SARFAESI Appeals U/S 17 of the Act. Nevertheless some DRTs are condoning delay on sufficient grounds. Hence you may file Appeal in DRT along with petition for delay condonation. If dismissed, you may try also in DRAT.
adv chintamani kadtu
(Expert) 18 March 2013
Delay will be condoned U/Sec. 5 of the Limitation Act, 1963, only if delay is without intention and justified.
Adv. Chintamani
c.p.s. ramachary
(Expert) 18 March 2013
Mr. Chintamani.K,
Is it condemnation or condonation of delay ?
K.K.Ganguly
(Expert) 18 March 2013
Few days back I attended a S.A hearing before the DRT, wherein the Application has been filed after 4 years & 100 days from the date of the Possession Notice,
In the said Application, it was mentioned that the Borrower, the Applicant therein, did neither receive Demand Notice nor Possession Notice but came to know about it after seeing the sale notice recently published by the Defandant Bank,
The said Application, without any seperate petition for condonation of delay, has been heard by the P.O. against my strong objection & when I had submitted the copy of the Possession Notice received by the Applicant, I was directed by the P.O. to submit the receipted copy of the Demand Notice alongwith the copy of the paper publications of Possession Notice , which the Applicant alleged that was not published,with in 2 weeks,
It is a different matter that the Bank could trace all the documents but the fact is that the P.O. can hear the Application on specific allegations to verify whether the SARFAESI Proceedings have been followed strictly as per the Act or not which is actually the sole limited jurisdiction of DRT.
RAJU O.F.,
(Expert) 19 March 2013
If the Appeal u/S17 was filed within 45 days of the Sale Notice, there is no necessity for delay condonation, to challenge the sale notice. But the Appellant may not be able to challenge Demand Notice and Possession Notice after long delay.
Raj Kumar Makkad
(Expert) 20 March 2013
The appeal is required to be filed within 45 days of sale notice hence no application seeking condonation is required to be moved in that situation.
c.p.s. ramachary
(Expert) 21 March 2013
Dear Mr. Rajkumar Makkad,
The query is as to whether borrower looses his right to invoke Sec.17 if he does not file his application(not appeal) within 45 days? and in such case what should be done.
The answer is simple. If he has genuine and condonable reasons he can take aid of Sec. 5 of Limitation Act.
Right to property is no more fundamental right. It is Human Right.
Supreme Court in L.K.Trust Vs. EDC Pvt. Ltd. held that any law hampering the right of redemption is void. If borrower is not allowed to invoke Sec.17 of the Act on account of delay for any genuine and excusable reasons(beyond 45 days) and DRT closes shutters then he has no alternative except loosing property is not acceptable proposition of law in the light of the above cited judgments. Therefore moving an application under Sec 5 of Limitation Act is requirement or not is not the question here. Whether it is a necessity to take aid of Sec 5 of Limitation Act to protect right to property (the Human Right)must be seen.
Judgments of Calcutta and Madras High Courts are in appeal before Supreme Court.
SARFAESI Act does not specifically exclude application of provisions of Limitation Act.
According to Sec.29(2) of Limitation Act, if period of limitation is specified by any special enactment, such periods occupy place in the schedule under Sec.3 of Limitation Act. In that case Sec. 4 to 24 of Limitation Act apply.
Supreme Court has to decide those appeals preferred against the judgments of Calcutta and Madras High Courts expeditiously to resolve the ambiguity so that DRTs do not dismiss such cases without considering merits.
