TMI Blog2019 (1) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... aving Mills Limited and others v. UCO Bank and another [2018 (11) TMI 532 - PUNJAB AND HARYANA HIGH COURT], where this Court has held that the Tribunal had the power to condone the delay under Section 5 of the 1963 Act to the proceedings under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. From the plain reading of Section 24 of the 1993 Act and the judicial pronouncements, the inevitable conclusion is that the provisions of Section 5 of the 1963 Act are applicable to the proceedings/application filed under Section 19 of the 1993 Act before the Tribunal. Once it is so held, the provisions of Section 5 of the 1963 Act are applicable to the application, therefore, the application seeking condonation of delay shall also be maintainable. The Tribunal has wrongly rejected the condonation of delay application filed by the petitioner for setting aside exparte order holding that the Tribunal had no jurisdiction to condone the delay - Matter restored before tribunal - petition allowed. - CWP-27863-2018 - - - Dated:- 27-11-2018 - MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ. For The Petitioner : Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. ( 2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act. 19. Application to the Tribunal .-(1) Where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction- ( a) the defendant, or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or ( b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain; or ( c) the cause of action, wholly or in party, arises. ( 2) Where a bank or a financial institution, which has to recover its debt from any person, has filed an application to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass a final order on the same application, both on the original claim and on the counter-claim. ( 10) The applicant shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Tribunal. ( 11) Where a defendant sets up a counter-claim and the applicant contends that the claim thereby raised ought not be disposed of by way of counter-claim but in an independent action, the applicant may, at any time before issues are settled in relation to the counter-claim, apply to the Tribunal for an order that such counter-claim may be excluded, and the Tribunal may, on the hearing of such application, make such order as it thinks fit. ( 12) The Tribunal may make an interim order (whether by way of injunction or stay or attachment) against the defendant to debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal. ( 13) (A) Where, at any stage of the proceedings, the Tribunal is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay or frustrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( b) remove any person from the possession or custody of the property; ( c) commit the same to he possession, custody or management of the receiver; ( d) confer upon the receiver all such powers, as to bringing and defending suits in the courts or filing and defending application before the Tribunal and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Tribunal thinks fit; and ( e) appoint a Commissioner for preparation of an inventory of the properties of the defendant or for the sale thereof. ( 19) Where a certificate of recovery is issued against a company registered under the Companies Act, 1956 (1 of 1956) the Tribunal may order the sale proceeds of such company to be distributed among its secured creditors in accordance with the provisions of section 529A of the Companies Act, 1956 and to pay the surplus, if any, to the company. ( 20) The Tribunal may, after giving the applicant and the defendant an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The Limitation Act, 1963 2. Definitions .- In this Act, unless the context otherwise requires,- (a) applicant includes- (i) a petitioner; (ii) any person from or through whom an applicant derives his right to apply; (iii) any person whose estate is represented by the applicant as executor, administrator or other representative; (b) application includes a petition; 29. 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 to 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, nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 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. 6. Section 5 of 1963 Act enables the Court to admit an appeal or an application after the expiry of prescribed period of limitation on sufficient cause being shown for the delay. It is meant to condone the default of the party wherever it is able to satisfy that sufficient cause exists. Thus, sufficient cause is sine qua non for exercise of discretion for condoning delay under this provision. The discretion, however, is to be judicial and not arbitrary. Sufficient cause has not been defined by the legislature in the 1963 Act but is to be ascertained on the individual facts of each case. 7. Section 29(2) of the 1963 Act, inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the schedule, the provisions of section 3 shall apply as if such period was the period pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 5 of the 1963 Act to the proceedings under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The relevant observations recorded therein read thus:- From the discussion and reading of the judicial pronouncements as quoted above, the inevitable conclusion is that Section 17(1) of the 2002 Act is virtually a remedy in respect of a right of redemption. Hence the application of Section 5 of the Limitation Act, 1963 to proceedings under Section 17(1) of the 2002 Act would neither defeat the rights nor cause irreparable hardship to the secured creditor. The provisions of the Limitation Act, 1963 are applicable to the proceedings under Section 17 of 2002 Act before the DRT in view of Section 24 of the 1993 Act and therefore, the provisions of section 5 of the Limitation Act, 1963 are applicable to the provisions of the said Act. Further, 2002 Act does not expressly exclude the application of the provisions of the Limitation Act, 1963. 10. From the plain reading of Section 24 of the 1993 Act and the judicial pronouncements as quoted above, the inevitable conclusion is that the provisions of Section 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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