TaxTMI 
TaxTMI 
2010 (4) TMI 1212
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....ioner, in the writ-application, out of which the present mandamus-appeal arises, challenged the aforesaid order passed by the Debts Recovery Tribunal. 3. The facts given rise to filing of the said writ-application may be summed up thus: The property involved in the writ-application was sold by the Allahabad Bank by taking recourse to Section 13(4) of the SARFAESI Act and was purchased by the present appellants. Disputing the legality of the notice under Section 13(4) of the SARFAESI Act dated September 21, 2007 the writ-petitioner moved this High Court by filing a writ-application in the past which was disposed of by an order dated October 23, 2007 by permitting the writ petitioner to move the Tribunal under Section 17 of the SARFAESI Act with further direction that till November 5, 2007 the operation of the possession-cum-sale notice would remain stayed. However, the application under Section 17(1) of the Act was filed on December 20, 2007 along with an application under Section 5 of the Limitation Act. 4. As indicated earlier, the learned Tribunal dismissed such application for condonation of delay thereby holding that Section 5 of the Limitation Act had no applica....
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....ade thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in Sub-section (4) of Section 13, taken by the secured creditor is not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in Sub-section (4) of Section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under Sub-section (4) of Section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under Sub-section (4) of Section 13 to recover his secured debt. (5) Any application made under Sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expe....
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....36 of 1963), shall, as far as may be, apply to an application made to a Tribunal. Limitation Act, 1963. Savings.--(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872). (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 - 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. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time ....
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....dance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder. 13. It further appears that according to Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the provisions of the Limitation Act, 1963 shall, as far as may be, apply to an application made to a Tribunal. 14. The conjoint effect of Section 17(7) of the SARFAESI Act and Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is that in a proceeding under Section 17(1) of the SARFAESI Act which is entertained by a Debts Recovery Tribunal, the provisions of the Limitation Act, 1963 shall, as far as may be, apply. 15. Although Section 17 of the SARFAESI Act has been described in the said Act as the one conferring right of appeal, as held by the Supreme Court in the case of Mardia Chemicals Ltd. and Anr. v. Union of India and Ors. reported in 2004 (4) SCC 311 and also in the case of Transcore v. Union of India and Anr. reported in AIR 2007 SC 712, the proceedings under Section 17 of the SARFAESI Act in fact are not appellate proceedings and it seems to be a misnomer. According to the ....
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....ection 17(1) which, as stated above, states that the borrower aggrieved by any of the measures in Section 13(4) may make an application to the DRT. The judgment of this Court in Mardia Chemicals (supra) states that the DRT acts in an Original Jurisdiction under Section 17 of the NPA Act. In our opinion, as far as the levy of fee is concerned, the terminology makes no difference. In fact, the proviso to Section 17(1) indicates that different fees may be prescribed for making an application by the borrower. The reason is obvious. Certain measures taken under Section 13(4) like taking over the management of the fee vis-a-vis the secured creditor taking possession of financial assets have to bear different fees. Each measure is required to be separately charged to the borrower (applicant) for which different fees could be prescribed. The said proviso indicates that the tribunal under Section 17(1) exercises Original Jurisdiction and, therefore, as far as the fees are concerned, the terminology of original or appellate jurisdiction in the context of fees is irrelevant. (Paragraph 60 of Transcore (supra)). 18. In view of the decision of the Supreme Court in the aforesaid two matters t....
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....s to be construed as a "suit" for the purpose of the Limitation Act. We have good reason to approve the said view. This being the position, Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act. 21. At this stage it will be profitable to refer to those paragraphs of the Division Bench decision of this Courtm in the case of Serish Maji (supra), approved by the Apex Court which are quoted below: 24. The words "application" and "suit" have been defined in Section 2(b) and 2(1) of the Limitation Act as follows: (b) "application" includes a petition; (1) "suit" does not include an appeal or an application; 25. Both are judicial proceedings. The word "proceeding" refers not only to a complete remedy but also to a step that is part of a larger action or special proceeding. The definition of the word "proceeding" in Black's Law Dictionary, 5th Edition at page 1083 gives a description of the characteristics of a suit: The word may be used synonymously with 'action' or 'suit' to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing o....
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....n, where "suit" has been defined as: Suit. A generic terms, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. 31. The words "application" and "petition" often refer to the form and not to the substance of the proceeding. This interchangeability has led to semantic confusion and the substantive right has been defined with reference to the procedure prescribed for enforcement of the right. 32. The procedure cannot define the right and no distinction can be made between the same substantive rights merely on the basis of the procedure involved. If this were so then by choosing a particular procedure a party could determine the period for enforcing the right. 33. The applicant has however contended that only those proceedings which are initiated by a plaint can be termed to be a suit for the purpose of the Limitation Act. If we were to accept this submission of the applicant we would fall into the se....
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.... Division Bench of the Allahabad High Court held that an application under Section 12 of the U.P. Agriculturists Relief Act, 1934 was a suit and that the decision whether the proceedings under the 1934 Act were a suit or not would not depend merely on the fact that the proceeding were initiated by an application. Conversely in considering whether an application for execution was barred under Article 182 of the Limitation Act, 1908, the Supreme Court said that "it may be plausibly argued that the plaint, which makes a request to the court, is an application". 40. The decisions cited by the appellants viz. Antala Gope v. Sarbo Gohain AIR 1962 Patna 489; Pausy Fernandes v. M.F. Queoros AIR 1963 All 153 and Mst. Puinbasi Majhiani v. Shiba Bhue AIR 1967 Orissa 41 are not relevant. The first decision was in respect of the applicability of the Court Fees Act, 1970 to proceedings under the Hindu Marriage Act, 1955. In the second and third decision the applicability of the Court Fees Act to the Succession Act, 1925 was considered. The Courts were considering the nature of proceedings for the purpose of levying Court Fees. The context, the object and the language of the Cou....
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....nder the Code of Civil Procedure. The Supreme Court held that Article 137 was not confined to applications under the Code. This ratio has in fact been followed in several decisions e.g. The Additional Special Land Acquisition Officer v. Thanboredas AIR 1994 SC 2227. 46. In this background and coming more specifically to proceedings under Section 8 of the WBLRA, it is not in dispute that it is an original and independent proceeding initiated before the Munsif which culminates finally in his order. It does not matter that this final order is not called a decree. Merely because civil proceedings before Courts are normally conducted according to the Civil Procedure Code does not mean all civil proceedings must be so conducted or that the terminology of the Code should be seen as defining the nature of proceedings under other statutes. In any event a "decree" according to the Code means: the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. 47. The decision of the Munsif on the right of the applicant ....
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....eased to be applications under Article 226 by such transfer (See: L. Chandra Kumar v. Union of India AIR 1997 SC 1125). Indeed it was argued by the appellant himself that the provisions of the Limitation Act now apply to proceedings under Section 8 because the Munsif is a Court. As already held civil proceedings before a Court can be a suit or application. That being so, it would follow that Section 8 of the WBLRA will have to be construed to see which of the provisions of the Limitation Act apply to such proceedings. For the reasons stated we hold that the view expressed by Chatterjee, J. in Minor Subir Rajan Mondal v. Sitanath Mukherjee that Section 5 does not apply to proceedings under Section 8 of the WBLRA to a correct view and also hold that the view held by Guha, J. in Chandra Sekhar v. Baidyanath Ghosh (supra) does not correctly represent the law. 21. On the same analogy, the proceedings under Section 17(1) should also be treated as a suit and thus, Section 5 of the Limitation Act at least does not apply to such proceedings although other relevant provisions of the said Act may apply. 22. So far as the Division Bench decision of the Bombay High Court....
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....tricity Board (supra), is not at all applicable for the purpose of deciding the question whether Section 5 of the Limitation Act would be applicable to a proceeding filed before a Tribunal which is not a civil court. In the context of a case where the proceedings were admittedly before a Civil Court, the Apex Court in paragraph 21 of the Judgment observed that the changed definition of the words "applicant" and "application" contained in Sections 2(a) and 2(b) of the 1963 Limitation Act indicated the object of the Limitation Act was to include petitions, original or otherwise, under special laws, meaning thereby, that if any application whether original or interlocutory, is made under the Special Law before any civil court for which no period of limitation is prescribed, the Article 137 of the Limitation Act would be applicable for the purpose of deciding the period of limitation of that application. Their Lordships in that case had no occasion for deciding the question of maintainability of an application under Section 5 of the Limitation Act to an original proceeding before a tribunal, which is not a civil court, and for which specific period of limitation has been prescribed in ....
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....the original proceedings like the one under Section 20 of the Arbitration Act which is treated as a suit, either in the said case, or in the Delhi decision relied upon by the Supreme Court. The following observation in paragraph 18 of the Judgment of the Supreme Court is quoted below: The appellant herein has filed an application under Section 5 of the Limitation Act praying that the delay in filing the application under Section 20 of the Act be condoned. Section 5 of the Limitation Act says any appeal or any application, other than the application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. The applicant can show sufficient cause for not filing the application in time. It appears that this Court had no occasion to consider whether Section 5 of the Limitation Act, 1963 could be applied in the case of an application to be filed under Section 20 of the Arbitration Act, 1940. The Division Bench of the High Court of Delhi in Union of India v. ....
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....upra), which is, at the most, an authority for the proposition of law that Section 5 applies to a proceeding under Section 20 of the Arbitration Act although the question whether Section 5 of the Act applies to a proceedings which is, in essence, a suit was not dealt with. The said decision is thus not a precedent for the proposition that Section 5 applies to an application under Section 17(1) of the Act before the Tribunal. 31. Secondly, the learned Single Judge in the present case, in relying upon the aforesaid two decisions, did not follow the well-established principles of law that a decision is an authority for what it actually decides and not what can be logically deduced from it. In this connection we may appositely refer to the following observations of the Apex Court in the case of R.L. Jain v. DDA reported in (2004) 4 SCC 79 while dealing with the question of application of a decision as a precedent: It is well settled that a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made therein. (See Krishena Kumar v.....
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....the Limitation Act to such original proceeding by giving power to entertain the application under Section 17(1) of the SARFAESI Act by merely showing sufficient cause for the delay without putting any restriction upon the Tribunal and we, therefore, hold that the time period of 45 days provided in Section 17 of the SARFAESI Act which is original in nature cannot be extended by taking aid of Section 5 of the Limitation Act. 35. Once we hold that the proceedings under Section 17(1) of the Act is like that of a suit and that the Limitation Act applies as far as may be applicable by virtue of Sections 17(7) and 24 of the two Special Laws, Section 29(2) of the Limitation Act has no application and thus, the various decisions cited on behalf of the respondent by showing the applicability of Section 29(2) of the Limitation Act cannot have any application to the original proceedings like a suit before a tribunal. The other provisions of the Limitation Act, for instance, Sections 4, 6, 7, 9, 10, 11, 12, 14, 15, 16, 17, 18 etc. should, however, apply in appropriate cases. 36. We, therefore, hold that the learned Single Judge erred in law in holding that Section 5 of the Limitation Act ....