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2017 (7) TMI 1330 - HC - Indian LawsInvocation of the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - time limitation - Whether the period of limitation stops on the filing of a proceeding under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for a bank or a financial institution to invoke the provisions of the Act of 2002 in respect of the same claims as in the Section 19 proceedings? HELD THAT - In the facts of the present case, the petitioner has not contended that, the claim made by the secured creditor before the Debts Recovery Tribunal under Section 19 of the Act of 1993 is barred by the laws of limitation. In any event, the issue of limitation of the proceedings under Act of 1993 is an issue which is to be decided by the Debts Recovery Tribunal before which such proceedings are pending - A Writ Court in a collateral proceeding is not required to answer such an issue. Such an issue also does not fall for consideration in the present case. Rather the issue as to whether the lodging of the proceedings under Section 19 of the Act of 1993 continues the period of limitation, or in other words, stops the running of the period of limitation on and from the date of lodging of such proceedings has arisen for consideration in the present case. Section 4 of the Limitation Act, 1963, is based on the principle that, the law does not compel a man to do that which he cannot possibly perform and an Act of Court shall prejudice no man. This section has no manner of application in the facts of the present case. The initiation of a proceeding under Section 13(2) of the Act of 2002 is an original proceeding and Section 5 of the Limitation Act, 1963 would have no manner of application at the point of initiation of the proceedings. It applies to an appeal under Section 17 of the Act of 2002. Section 14 of the Limitation Act, 1963, permits exclusion of time for proceeding bona fide in a Court without jurisdiction - Section 14 of the Limitation Act, 1963 saves the period of limitation in the event of a new proceeding being filed when the Court in which the former proceeding was being prosecuted suffers from defect of jurisdiction or defect of like nature. It does not contemplate two proceedings on the same cause of action at the same time. In the present case, the bank has not withdrawn the proceeding under Section 14 under the RDB Act, 1993, for defect in jurisdiction of the Tribunal to decide the same or otherwise. Rather the bank is proceeding under Section 19 of the RDB Act, 1993. It can proceed parallely by under the Act of 2002 provided that, the proceedings under the Act of 2002 are within the period of limitation. Pendency of the proceedings before the DRT, under the RDB Act, 1993, will not save the period of limitation for a proceeding under the Act of 2002, if the proceeding under the Act of 2002, is by itself barred by the laws of limitation. In other words, a bank cannot take the benefit of the pendency of the proceedings before the DRT to claim that, a proceeding under the Act of 2002, which is otherwise barred by limitation to be validly instituted within the period of limitation. Section 4, Section 14 and Section 15 of the Limitation Act, 1963, does not assist a bank to initiate a proceeding under Act of 2002 which is otherwise barred by limitation on the date of its initiation premised upon of a pendency of a proceeding under Section 19 of the RDB Act, 1993 before the DRT. The laws of limitation do not take away a subsisting right, it merely postpones the enforcement of an existing right to be revived for enforcement upon happening of a future event. The bank on receiving a certificate under Section 19 of RDB Act, 1993, has its right to proceed under the Act of 2002 revived. It then needs to proceed under the Act of 2002, within the period of limitation, from the date of such certificate. The initiation of the proceedings by the bank was barred by the laws of limitation on July 5, 2011 and all proceedings taken by the bank consequent upon and pursuant to the notice under Section 13(2) of the Act of 2002 dated July 5, 2011 are quashed including such notice - petition disposed off.
Issues Involved:
1. Whether the period of limitation stops on the filing of a proceeding under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for a bank or a financial institution to invoke the provisions of the SARFAESI Act, 2002 in respect of the same claims as in the Section 19 proceedings? 2. To what reliefs, if any, are the parties entitled to? Detailed Analysis: Issue 1: Limitation Period and Section 19 Proceedings The petitioner contended that the bank's invocation of the SARFAESI Act, 2002 was barred by the laws of limitation. The petitioner argued that the mortgage was created in 1995, and the last installment was paid in October 1995. According to the Limitation Act, 1963, a suit for mortgage could have been instituted by 2007. Therefore, the notice under Section 13(2) of the SARFAESI Act, issued on March 3, 2016, was beyond the period of limitation. The petitioner referenced various cases, including 2014 Volume 135 All India Cases page 550 (Abhay Ram v. Mahant Rambali Das & Anr.) and 2010 Volume 5 Supreme Court Cases page 459 (Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation & Anr.), to support the contention that the bank's claim was barred by limitation. The bank argued that the period of limitation stopped when it filed proceedings under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, in 2001. The bank contended that since these proceedings were still pending, the limitation period had effectively stopped, allowing them to invoke the SARFAESI Act, 2002. The court analyzed the relevant provisions, including Sections 2(ha), 2(l), and 36 of the SARFAESI Act, 2002, and Section 2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It noted that Section 36 of the SARFAESI Act bars a secured creditor from taking measures under Section 13(4) unless the claim is within the period of limitation prescribed under the Limitation Act, 1963. The court also considered Sections 4, 14, and 15 of the Limitation Act, 1963, which deal with the exclusion of time in certain cases. The court referenced the decision in Somnath Manocha v. Punjab and Sindh Bank & Anr., which held that the claim in respect of a financial asset must be made within the period of limitation. The court emphasized that the right to proceed under the SARFAESI Act is subject to adherence to the provisions of limitation as enshrined in the Limitation Act, 1963. The court concluded that the invocation of the SARFAESI Act on July 5, 2011, was barred by limitation, as there was no transaction between the petitioner and the bank subsequent to 2001 to enlarge the period of limitation. Issue 2: Reliefs to the Parties The court held that the initiation of proceedings by the bank was barred by the laws of limitation on July 5, 2011. Consequently, all proceedings taken by the bank pursuant to the notice under Section 13(2) of the SARFAESI Act, 2002, dated July 5, 2011, were quashed, including the notice itself. Conclusion: The court quashed the bank's proceedings under the SARFAESI Act, 2002, as they were initiated beyond the period of limitation. The writ petition was disposed of accordingly, with urgent certified website copies of the order to be made available to the parties upon compliance with the requisite formalities.
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