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TMI Blog2010 (4) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions of this Act and the rules made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Institutions Act, 1993. Limitation.--The provisions of the Limitation Act, 1963 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of Sub-section (7) of Section 17 of the SARFAESI Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g jurisdiction in the matter. It is true that, the marginal note states that Section 17(1) is a right to appeal. In our view, the marginal note to Section 17(1) cannot control the text and the content of Section 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court in Serish Maji after elaborate consideration, referring to various decisions and on analysis of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is 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 Editio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of the Limitation Act a suit may be defined as an independent proceeding which must be initiated for the final determination of an issue or issues of fact or law between the p arties. 30. This definition finds support in Black's Law Dictionary, 5th Edition, 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 det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision was rendered in the context of the Limitation Act, 1908. Besides the observation expressly recognises that a suit in a certain context need not necessarily be instituted by a plaint. It would depend on the context whether the proceeding is a suit or not. 39. Thus in Balram Singh v. Dudh Nath AIR 1949 All 100, a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence cannot be construed as a statute [See Amar Nath Omprakash v. State of Punjab AIR 1985 SC 218; Gasket Radiators Private Limited v. Employees State Insurance Corporation 1985 (2) SCC 68]. The observation must be read in the context of the issue which was being decided in that case. The only issue was whether Article 137 applied to application which were not under 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 proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The submission is misconceived. A proceeding may change its nature with the forum. For example with the creation of Administrative Tribunals under the Administrative Tribunals Act, 1985 all pending proceedings including application under Article 226 covering matters over which the Tribunals had jurisdiction were transferred to the Tribunal under Section 29 of the Act. The writ proceedings ceased 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1969) 1 SCC 873 and held that Article 137 of the 1963 Limitation Act was not confined to applications contemplated by or under the Code of Civil Procedure. In the case before us, specific period of limitation is fixed in the Act itself being 45 days and the Debts Recovery Tribunal is not a civil court as held by the Supreme Court in the case of Nahar Industrial Enterprises Ltd (supra). Therefore, the decision in the case of Kerala State Electricity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Supreme Court was whether Article 137 of the Limitation Act was applicable to a proceeding under Section 20 of the Arbitration Act and the Court answered that question in affirmative. Thereafter, the Bench by relying upon the Division Bench decision of the Delhi High Court held that Section 5 of the Limitation Act was applicable to such proceeding and thus, allowed the said application; but there was no discussion as to whether Section 5 could be applicable to 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the justification or otherwise of the claim. 29. Therefore, it is apparent, that in neither of those two decisions, there was any question raised as to whether Section 5 should be applicable to a proceeding, which is treated as a suit, whereas such question was specifically dealt with in Gopal Sardar (supra). 30. Therefore, in our view there was no justification of ignoring the decision of Gopal Sardar (supra) specifically dealing with the aforesaid question by relying upon Asia Resort (supra), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the application pending before the Debts Recovery Tribunal. 34. Therefore, there being specific time-limit of 45 days for invoking the original jurisdiction of Section 17 of the SARFAESI Act, which has been found to be, in essence, a suit and a further tentative time-limit of 60 days for disposal of the proceedings, and giving a right to the party to complain before the appellate forum for compliance of such provisions alleging violation thereof if not completed within four months, it was never the intention of the legislature to apply Section 5 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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