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Baleshwar Dayal Jaiswal Versus Bank of India & Others

Power of Tribunal to condone delay - Applicability of proviso to Section 20(3) of the RDB Act to the disposal of an appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act - Whether the Appellate Tribunal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has the power to condone delay in filing an appeal under Section 18(1) of the said Act. - Held that:- The change intended in SARFAESI Act has to be seen from the statu .....

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already observed, the proviso to Section 20(3) which provides for condonation of delay (45 days under RDB Act) stands extended to disposal of appeal under the SARFAESI Act (to the extent that condonation is of delay beyond 30 days). There is no reason to exclude the proviso to Section 20(3) in dealing with an appeal under the SARFAESI Act. Taking such a view will be nullifying Section 18(2) of the SARFAESI Act.

Even if power of condonation of delay by virtue of Section 29(2) of the L .....

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bunal under the SARFAESI Act has the power to condone the delay in filing an appeal before it by virtue of Section 18(2) SARFAESI Act and proviso to Section 20(3) of the RDB Act. - delay in filing an appeal under Section 18 (1) of the SARFAESI Act can be condoned by the Appellate Tribunal under proviso to Section 20 (3) of the RDB Act read with Section 18 (2) of the SARFAESI Act. - Decided in favour of Appellants. - Civil Appeal No. 5924 of 2015 (Arising Out of SLP (C) No. 27674 of 2011) - Dated .....

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tion and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( the SARFAESI Act ) has the power to condone delay in filing an appeal under Section 18(1) of the said Act. 3. We have heard learned counsel appearing for the parties, including S/Shri Amol Chitale and Akshat Shrivastava, counsel for the appellants-borrowers and Shri Rana Mukherjee, senior counsel and S/Shri Anil Kumar Sangal and Pranab Kumar Mullick, counsel appearing for the Banks. 4. The appellants sub .....

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RDB Act empowers the Appellate Tribunal to entertain an appeal after expiry of period of limitation, if sufficient cause for not filing the appeal within the period of limitation was shown. Thus, the proviso to Section 20(3) of the RDB Act is incorporated in Section 18(2) of the SARFAESI Act; (ii) Section 29(2) of the Limitation Act, 1963 makes the said Act s Sections 4 to 24 applicable to a special or local law prescribing a different period of limitation for a suit, appeal or application unles .....

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o measures taken under Section 13(4). Thus, there is be no exclusion of the Limitation Act. 5. On the other hand, the Banks would contend that: (i) Section 18(2) of the SARFAESI Act cannot be read as extending provisions of proviso to Section 20(3) of the RDB Act to an appeal filed under Section 18(1) of the SARFAESI Act; (ii) Section 29(2) of the Limitation Act is not attracted to proceedings before a Tribunal as the period of limitation prescribed under the Limitation Act is applicable only to .....

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tice that the issue in question has been examined by the High Courts of Madhya Pradesh, Andhra Pradesh, Bombay and Madras. While Madhya Pradesh High Court in M/s. Seth Banshidhar Media Rice Mills Pvt. Ltd. vs. State Bank of India AIR 2011 MP 205 held that delay in filing an appeal cannot be condoned by the Tribunal, the Andhra Pradesh High Court in Sajida Begum vs. State Bank of India AIR 2013 AP 24, the Bombay High Court in UCO Bank, Mumbai vs. M/s. Kanji Manji Kothari and Co., Mumbai 2008 (4) .....

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al alongwith such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal: PROVIDED that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: PROVIDED FURTHER that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by .....

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36. Limitation No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of section 13, unless his claim in respect of financial asset is made within the period of limitation prescribed under the Limitation Act, 1963 (36 of 1963). Sections 20 and 24 of the RDB Act : Section 20 Appeal to the Appellate Tribunal (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 .....

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unal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by .....

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. 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, .....

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s to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend. 8. The first point for consideration is the applicability of proviso to Section 20(3) of the RDB Act to the disposal of an appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act. A bare perusal of the said Section 18(2) makes it clear that the Appellate Tribunal under the SARFAESI Act has to dispose of an appeal in accordance with the provisions of the RDB Act. In this respect, the provisions .....

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plicable by virtue of Section 18(2) of the SARFAESI Act. This interpretation is clearly borne out from the provisions of the two statutes and also advances the cause of justice. Unless the scheme of the statute expressly excludes the power of condonation, there is no reason to deny such power to a Appellate Tribunal when the statutory scheme so warrants. Principle of legislation by incorporation is well known and has been applied inter alia in Ram Kirpal Bhagat vs. The State of Bihar (1969) 3 SC .....

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ARFAESI Act are complimentary to each other, as held by this Court in Transcore vs. Union of India (2008) 1 SCC 125, also supports this view. 10. We may now deal with the conflicting views of the High Courts on the subject. The Madhya Pradesh High Court has held that the power of condonation of delay stood excluded by principle of interpretation that if a later statute has provided for shorter period of limitation without express provision for condonation, it could be implied that there was no p .....

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rved that the object of SARFAESI Act was to ensure speedy recovery of the dues and quicker resolution of disputes arising out of action taken for recovery of such dues. We find the approach to be erroneous and incorrect understanding of the principle of interpretation which has been relied upon. The principle discussed in the celebrated Treatise in question is as follows: When an amending Act alters the language of the principal statue, the alteration must be taken to have been made deliberately .....

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s the provisions of the RDB Act which contains provision for condonation of delay in filing of an appeal, cannot be read as excluding the power of condonation. As already observed, the proviso to Section 20(3) which provides for condonation of delay (45 days under RDB Act) stands extended to disposal of appeal under the SARFAESI Act (to the extent that condonation is of delay beyond 30 days). There is no reason to exclude the proviso to Section 20(3) in dealing with an appeal under the SARFAESI .....

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plication, as the statute in question impliedly excludes applicability of provisions of Limitation Act to the extent a different scheme is adopted. If no provision of Limitation Act was expressly adopted, it may have been possible to hold that by virtue of Section 29(2) power of condonation of delay was available. It is well settled that exclusion of power of condonation of delay can be implied as laid down in Union of India vs. Popular Construction Co. (1995) 5 SCC 5, Chhattisgarh State Electri .....

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holding the Tribunal to be Court, has relied on Sections 22 and 24 of the RDB Act. Section 22 vests powers of Civil Court on the Tribunal only for purposes mentioned therein, such as summoning witnesses, discovery and production of documents, receiving evidence, issuing commission for examining witnesses etc. and deems Tribunals to be courts for specified purposes, such as for Sections 193, 196 and 228 of the Indian Penal Code and Section 195 of the Criminal Procedure Code. These provisions may .....

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t necessary to decide the question whether the Tribunal under the Banking statutes in question was court for purposes of Section 29(2) of the Limitation Act. We have already held that the power of condonation of delay was expressly applicable by virtue of Section 18(2) of the SARFAESI Act read with proviso to Section 20(3) of the RDB Act and to that extent, the provisions of Limitation Act having been expressly incorporated under the special statutes in question, Section 29(2) stands impliedly e .....

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