TMI Blog2012 (9) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2009 executed by her husband, Mohd. Nazeer Khan, whereas the respondent bank asserts that it is a secured asset, which was mortgaged by Smt Khaiser Begum by depositing the registered Gift Deed dated 04.02.1995 executed by her husband Mohammed Arif Khan and the said mortgage was created in favour of the respondent bank on 14.11.1995 by virtue of term loan and working capital limit availed by M/s. Bio Vet Formulations represented by its proprietor, Sri Arif Khan. While we are not for the present concerned with the merits of the rival claims, as above, S.A.No.142 of 2010 preferred by the petitioner was, however, dismissed on merits by DRT under order dated 27.08.2010 and questioning the correctness of the said order, petitioner had preferred further appeal before DRAT along with an application seeking condonation of delay of 16 days in filing the said appeal. The application, being I.A.No.1654 of 2010, has since been dismissed by DRAT under the impugned order by placing reliance upon a decision of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills Pvt. Ltd v. State Bank Of India (AIR 2011 MP 205) holding that under Section 18 of the Securitization and Reconstruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenience and relevance, Sections 17(1) and (7), 18(1) and (2), 36 and 37 of the SARFAESI Act are extracted as under: 17. Right to Appeal. - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed, to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder. 18. Appeal to Appellate Tribunal. - (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with 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. (2) Save as otherwise provided in this Act, the Appellate Tribunal shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this At, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit, in respect of the following matters, namely: - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Secs. 193 and 228, and for the purposes of Sec.196 of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Sec.195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the schedule as the schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. It is now well settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this court in the case of Vidyacharan Shukla Vs. Khubchand Baghel and Ors. (AIR 1964 SC 1099), when the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That is why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the court under Section 5 to the Tribunals under the special law-whether these tribunals are courts or not. If these tribunals under the special law should be courts in the ordinary sense an express extension of the provision contained in Section 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intension of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellate authority taking contrary view are quashed and set aside. The proceedings are remanded to the court of the appellate authority, that is, District Judge, Thalassery. Rent Control Appeal No.9/94 filed before the said authority by the appellant is restored to its file with a direction that the appellate authority shall consider I.A.56/94 filed by the applicant for condonation of delay on its own merits and then proceed further in accordance with law. Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs. (emphasis supplied) 11. It is not in dispute that there is no express exclusion of the Limitation Act under the SARFAESI Act and so far as DRT Act is concerned, under which the DRT and DRAT function and entertain original and appellate proceedings under the SARFAESI Act, clearly exercise powers of a civil Court under CPC and in addition, the Limitation Act is expressly made applicable under Section 24 of the DRT Act. 12. In view of that, we are of the view that Section 29(2) of the Limitation Act is clearly attracted and thereby Sections 4 to 24 (inclusive) of the Limitation Act would be applicable to proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the provisions of the Special Court (Trial of Offences relating to Transactions in Securities) Act, referred to supra and is distinguishable from the present case. The decision in THE COMMISSIONER OF SALES TAX's case (7 supra) relates to applicability of Section 14 of the Limitation Act and does not deal with the question involved herein. Similarly, the decision in BIRLA CEMENT WORKS's case (8 supra) deals with the question of applicability of the Limitation Act to the Railway Claims Tribunal, which is, admittedly, not a civil Court; that case also has no application to the present case. The decision in PRAKASH H. JAIN's case (9 supra) considered as to whether the competent authority under the Maharashtra Rent Control Act, 1999 is not a civil Court and on holding so, consequently, Section 151 of CPC was held not applicable. The decision of the Kerala High Court in JAYAN's case (10 supra) is clearly distinguishable, as it does not take into consideration Section 29 of the Limitation Act or the decision of the Supreme Court in MUKRI GOPALAN's case (13 supra). With respect, therefore, we express our inability to agree with the said view. Similarly, the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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