TaxTMI 
TaxTMI 
2012 (9) TMI 1192
X X X X Extracts X X X X
X X X X Extracts X X X X
....s the absolute owner and possessor of the said house property by virtue of a registered gift deed dated 27.02.2009 executed by her husband, Mohd. Nazeer Khan, whereas the respondent bank asserts that it is a secured asset, which was mortgaged by Smt Khaiser Begum by depositing the registered Gift Deed dated 04.02.1995 executed by her husband Mohammed Arif Khan and the said mortgage was created in favour of the respondent bank on 14.11.1995 by virtue of term loan and working capital limit availed by M/s. Bio Vet Formulations represented by its proprietor, Sri Arif Khan. While we are not for the present concerned with the merits of the rival claims, as above, S.A.No.142 of 2010 preferred by the petitioner was, however, dismissed on merits by DRT under order dated 27.08.2010 and questioning the correctness of the said order, petitioner had preferred further appeal before DRAT along with an application seeking condonation of delay of 16 days in filing the said appeal. The application, being I.A.No.1654 of 2010, has since been dismissed by DRAT under the impugned order by placing reliance upon a decision of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills Pvt. Ltd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty measures taken by the secured creditor and the said forum is provided before the DRT constituted under the DRT Act. For the sake of convenience and relevance, Sections 17(1) and (7), 18(1) and (2), 36 and 37 of the SARFAESI Act are extracted as under: 17. Right to Appeal. - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed, to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder. 18. Appeal to Appellate Tribunal. - (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this At, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit, in respect of the following matters, namely: - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Secs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are applicable thereto, which includes Section 5 of the Limitation Act. Paras 10, 11, 13, 15 and 22 are relevant for our purpose and are extracted hereunder: 10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the schedule as the schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. It is now well settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second conditio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section 5) relating to the power of the court to condone delay in preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That is why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the court under Section 5 to the Tribunals under the special law-whether these tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the concerned applicant for the delay in filing such appeals. The decision rendered by the High Court in the present case as well as by the appellate authority taking contrary view are quashed and set aside. The proceedings are remanded to the court of the appellate authority, that is, District Judge, Thalassery. Rent Control Appeal No.9/94 filed before the said authority by the appellant is restored to its file with a direction that the appellate authority shall consider I.A.56/94 filed by the applicant for condonation of delay on its own merits and then proceed further in accordance with law. Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs. (emphasis supplied) 11. It is not in dispute that there is no express exclusion of the Limitation Act under the SARFAESI Act and so far as DRT Act is concerned, under which the DRT and DRAT function and entertain original and appel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, is not applicable to the facts and question of law arising in the present matter. 15. The decision of the Supreme Court in L.S. SYNTHETICS LTD's case (6 supra) relied upon by the learned counsel for the respondent bank is already considered by the Supreme Court while considering the provisions of the Special Court (Trial of Offences relating to Transactions in Securities) Act, referred to supra and is distinguishable from the present case. The decision in THE COMMISSIONER OF SALES TAX's case (7 supra) relates to applicability of Section 14 of the Limitation Act and does not deal with the question involved herein. Similarly, the decision in BIRLA CEMENT WORKS's case (8 supra) deals with the question of applicability of the Limitation Act to the Railway Claims Tribunal, which is, admittedly, not a civil Court; that case also has no application to the present case. The decision in PRAKASH H. JAIN's case (9 supra) considered as to whether the competent authority under the Maharashtra Rent Control Act, 1999 is not a civil Court and on holding so, consequently, Secti....