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TMI Blog2011 (10) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioners are owners of Apartments in the building known as 'Jupiter Complex' Situated at Vaishali Nagar, Binaki, Nagpur. The Petitioners claim that they were handed over possession of their respective apartments in the building pursuant to an agreement for sale of undivided share in the land and building construction executed in the year 1987. The respondent Central Bank of India, on the ground that the borrower had executed the mortgage of the plot along with the structure of the open foundation in its favour on 14/05/1997 to enforce recovery certificate had put the property for sale through DRT, Nagpur The Petitioners on or about 3/3/2004 filed an application/objection under Rule 11 and 15 of the second schedule of the Income Tax Act, 1961 and other enabling provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI Act) for release of attachment and cancellation of proposed Sale. On 29/03/2005 the Recovery officer, DRT Nagpur passed a common order whereby the objection of the Petitioners was accepted on the ground that the Petitioners legally possessed the Apartments much prior to the Mortgage and the so called Mortgaged property did not exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 20 for to entertain an appeal from the order of the Tribunal to the Appellate Tribunal even after expiry of the period of Limitation upon satisfaction as to sufficient cause for not filing an appeal within period of limitation prescribed in Section 20 of the RDDBFI Act. The learned advocate for the Petitioners therefore making reference to section 19, 20 and 30 of the RDDBFI Act submitted that the provision of section 5 of the Limitation Act is excluded by the said Act to the appeal filed under Section 30 of the RDDBFI Act in terms of Section 29 (2) of the Limitation Act, 1963.The contradictory definition of the "application" appearing in Rule (under the Rules framed under the RDDBFI Act) can not override the definition of the term "application" in Section 2(b) of the RDDBFI Act. It is thus submitted that the DRT and DRAT committed error of law which is apparent and manifest. It is submitted that the legislature having regard to expeditious disposal of Appeals under Section 30 of the RDDBFI Act, did not intend to give benefit of section 5 of the Limitation Act to the filing of Appeal under section 30 of the RDDBFI Act, consciously by not making a specific provision as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation; limitation cannot be extended by invoking the provisions of Section 5 of the Act. 21. In the light of the above discussion, we hold that the High Court has no power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge Bench decision of this Court in Hukumdev Narain Yadav case (supra) and subsequently followed in Anwari Basavaraj Patil case (supra), even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the Legislature to exclude application of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to "express exclusion" of it satisfying the requirement of Section 29(2) of the Limitation Act" After making reference to various rulings it was concluded in Para 19 that Section 5 of the Limitation Act cannot be pressed into service in aid of a belated application made under Section 8 of the of the West Bengal Land Reforms Act, 1955 Act seeking condonation of delay. The right of pre-emption conferred under Section 8 thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no fault on the part of the adjudicating authority either in complying with the provisions of the Act or in the decision making process, then this Court would be justified in refusing to interfere with the impugned order. The ruling is cited to emphatically submit that the power has to be used strictly in accordance with the provisions of the Act and not otherwise. 6. The object of the RDDBFI Act is to provide speedy mechanism of Tribunals and Recovery officer under the Act to ensure expeditious disposal of applications/matters for adjudication and recovery of debts due to banks and financial institutions. It aims at overcoming the procedural hurdles faced by the Banks and Financial institutions in time-consuming normal litigation process when their funds have been blocked in the unproductive assets. Speedy recovery of such assets is critical for the successful implementation of financial reforms. The Act by Setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery aimed at the successful implementation of the financial sector reforms. An urgent need was felt to work out a suitable and speedy mechanism through which the dues to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice of summons as to why the relief prayed for should not be granted. (5) The defendant shall, at or before the first hearing or within such time as the Tribunal may permit, present a written statement of his defence. (6) Where the defendant claims to set-off against the applicant's demand any ascertained sum of money legally recoverable by him from such applicant, the defendant may, at the first hearing of the application, but not afterwards unless permitted by the Tribunal, present a written statement containing the particulars of the debt sought to be set-off. (7) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off. (8) A defendant in an application may, in addition to his right of pleading a set-off under sub-section (6), set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay order the attachment of the whole or such portion of the properties claimed by the applicant as the properties secured in his favour or otherwise owned by the defendant as appears sufficient to satisfy any certificate for the recovery of debt. (14) The applicant shall, unless the Tribunal otherwise directs, specify the property required to be attached and the estimated value thereof. (15) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property specified under subsection. (16) If an order of attachment is made without complying with the provisions of sub-section (13), such attachment shall be void. (17) In the case of disobedience of an order made by the Tribunal under sub-sections (12), (13) and (18) or breach of any of the terms on which the order was made, the Tribunal may order the properties of the person guilty of such disobedience or breach to be attached an may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Tribunal directs his release. (18) Where it appears to the Tribunal to be just and convenient, the Tribunal may, by order- (a) ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24) The application made to the Tribunal under sub section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within one hundred and eighty days from the date of receipt of the application. (25) The Tribunal may made such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice." 8. Section 20 provides for Appeal to the Appellate Tribunal.- "20. (1) - Save as provided in subsection (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. (2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the legislature has consciously excluded the principle of section 5 of the Limitation Act, 1963, while it has made such provision in section 20 (3) of the Act. The legislature by necessary implication therefore did not intend to include the principle of Section 5 of the Limitation Act while enacting Section 30 of the Act. Therefore delay can not be condoned by the Debt Recovery appellate Tribunal as Section 5 of the Limitation Act can not be made applicable to the appeal filed under Section 30 of the RDDBFI Act in as much as there is no any proviso in Section 30 of the Act similar to the proviso incorporated in section 20 of the Act. thus considering the section 19, 20, 24, 30 read in juxtaposition to definition of "application" in section 2(b) of the RDDBFI Act and Section 29(2) of the Limitation Act it is explicit that RDDBFI Act excludes the provision of Section 5 of the Limitation Act to the Appeal under section 30 Of the RDDBFI Act as it aims at expeditious adjudication of such appeals . 12. On behalf of the respondents it is pointed out that the term "application" is described in Rule 2(c) of the Debts Recovery Rules, 1993 as under :- "application" means an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporate the enabling provision of condoning the delay to prefer appeal within prescribed period (unlike in proviso to section 20(3) of the Act of the discretion enabling the DRAT to entertain appeal beyond prescribed period of statutorily prescribed limitation of 45 days) by not making provision analogous to section 5 of the Limitation Act, 1963 in a subsequent statutory provision, or if there appears a conscious omission in a subsequent provision, the language of which is otherwise plain and unambiguous, the question arises as to whether the court is competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by a analogy or by an implication, something what it thinks to be a general principle of justice and equity to condone delay. Would it not be entrenching upon the precincts of the legislature? To our mind the primary function of a court of law is do justice according to law. Where the legislature clearly declares its intent to lay down the scheme and use or omit specific words in a statute, it becomes the duty of the court to give full effect to the same. Perusal of sub-section (2) of Section 30 of the RDDBFI Act, indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962, has become applicable for the realization of the dues by the Recovery Officer. Detailed procedure for recovery is contained in these schedules to the Income-tax Act, including provisions relating to arrest and detention of the defaulter. It cannot, therefore, be said that the Recovery Officer would act in an arbitrary manner. Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law." 17. The Act was brought in to force to establish Tribunals for expeditious adjudication and disposal of the proceedings to ensure early recovery of Debts due to Banks and financial institutions and for matters connected therewith or incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted as binding precedent in view of later judgment of Hon'ble Apex Court on Section 35G of Excise Act. Thus absence of a power or provision for condonation of delay in Income Tax matters is well recognized position. The Income-tax (Certificate Proceedings) Rules, 1962, which need to be followed in present matter vide its Rule 55-A incorporate an appellate remedy under Rule 86 of Second Schedule of the Income Tax Act, 1961 and permit an appeal to the Chief Commissioner or Commissioner and that forum also does not contain a provision for condoning delay. Same safeguard as available due to Rule 55A of the Income-tax (Certificate Proceedings) Rules, 1962 has been similarly made available by amending S. 30 of RDDBFI Act. Neither said Rule 55A nor Rule 86 of the "principal rules" contemplate condonation of delay in filing that appeal. Parliament which is aware of this position can not be said to have either failed or erred in not prescribing mechanism for condonation of delay in S. 30 in this background. It can not be construed as casus omissus and inclusion of an appeal filed under Section 30(1) of RDDBFI Act within meaning of "application" in definition clause Rule 2(c) of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this respect. The judgment of D.R.A.T. Calcutta Bank of India v. Chotanagpur Graphic Industries 2007 (1) Bankers Law Journal ---156 also does not call for any discussion. Naseem Banoo v. Presiding Officer DRT AIR 2007 All. 116 is the judgment of learned Single Judge in which though it is noticed that the appeal under Section 30 of the D.R.T. Act is not same as an appeal under Section 20 thereof, still the present issue has not been gone into there. Ghanshyamdas Gopaldas Mohta v. Union of India [1983] 139 ITR 1013/14 Taxman 525 is the Division Bench judgment of this Court which in the light of the later Division Bench noted by us between Commissioner of Income Tax and Grasim Industries Ltd.'s case (supra), cannot be said to be a laying laid down correct position in present facts. 22. In view of this discussion, it is apparent that the delay in filing appeal under Section 30 cannot be condoned by D.R.A.T. 23. The provisions of Section 30 of the RDDBFI Act which are carved out as an exception to Section 29 of the Act need to be set out as under : S. 30. Appeal against the order of Recovery Officer - (1) Notwithstanding anything contained in Section 29, any person aggrieved by an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Appellate Tribunal are empowered to regulate their own procedure of course subject to the provisions of the Act and the Rules. 25. While we Ponder over the present case, it must be noted that Section 30 (which is an exception to Section 29) of the RDDBFI Act provides for an appeal against the order of Recovery officer within 30 days from the date the copy of the order of the Recovery officer is issued to an aggrieved person who wants to prefer appeal to the Tribunal and when there is no provision made for condonation of delay the court/ Tribunal can not have power to condone delay in absence of such specific provision because the power of the court flows from provision of the relevant special statute. If the relevant special statute provides for the specific period of limitation to prefer appeal without any specific provision for the court to condone delay, then inherent power of the court to condone delay under the general law i.e. Limitation Act, 1963 can not apply and delay can not be condoned on the ground of equity and hardship. Order of the Recovery officer under Chapter V of the RDDBFI Act would become absolute and binding if no appeal is preferred within specified l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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