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Anthony Samy v. SBI, 2023 SCC OnLine DRAT 650 at para 5-10
Anthony Samy v. SBI, 2023 SCC OnLine DRAT 650 at para 5-10
MA (SA) 32/2021
Hon'ble Judges/Coram:
S. Ravi Kumar, J. (Chairperson)
Counsels:
For Appellant/Petitioner/Plaintiff: E. Maharajan
Case Category:
MERCANTILE LAWS, COMMERCIAL TRANSACTIONS INCLUDING BANKING - MATTERS
RELATING TO SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND
REINFORCEMENT OF SECURITY INTEREST ACT, 2002
ORDER
Appellant herein filed SA SR 2591/2020 challenging the action of Bank taken under
SARFAESI Act, 2002. Office of DRT, returned said SA SR on the point of limitation.
Appellant approached Hon'ble High Court of Madras at Madurai Bench by filing WP
(MD) 7879/2020, wherein Hon'ble High Court held that it is open to Appellant to file
an Application for condonation of delay under Section 17 of SARFAESI Act, 2002,
and disposed of the Writ with that observation. Basing on that, Appellant filed IA
1001/2020, to condone delay of 945 days in filing SARFAESI Application.
3. Parties filed Written Submissions and the same were reiterated during oral submissions.
4 . Advocate for Appellant contended that Bank has not followed the provisions of
SARFAESI Act, 2002, and did not give any opportunity to Appellant, and unilaterally sold the
property. He submitted even while taking possession, it has not followed Security Interest
(Enforcement) Rules, 2002 (hereinafter called as the Rules), but Learned Presiding Officer
failed to consider these aspects, and dismissed Delay Condonation Petition, though it is
stated in the Affidavit filed in support of Petition, the reasons for delay. He submitted an
opportunity may be given to Appellant so that the rights of parties can be determined on
merits.
6 . Advocate for Auction Purchaser while adopting the arguments of Advocate for Bank,
submitted that Order of Tribunal below is a reasoned Order, and there are no grounds to
interfere with the same.
7 . I have perused material papers, impugned Order, Affidavit filed in support of Delay
Condonation Petition and Counters filed by Bank and Auction Purchaser to Delay
8 . It is not in dispute, the Sale Notice was issued on 07.03.2017 fixing auction date as
27.03.2017. It is also not in dispute, in the said auction, 2nd Respondent herein has
become a successful bidder and he paid the bid amount as per Rules. It is also not in
dispute that a Sale Certificate is issued on 28.06.2017. According to the Affidavit of
Appellant, the delay is calculated from 03.08.2017, the date of execution of Sale Certificate.
Tribunal below considered the reasons for the delay and recorded a finding that no
convincing and satisfactory reason is given for inordinate delay of 945 days. In fact,
Tribunal below extracted the relevant portion from the Affidavit of Appellant concerning the
delay. I have also examined the Affidavit filed in support of Delay Condonation Petition,
except the portion extracted in the impugned Order, remaining averments of Affidavit are
about the merits of the case. Advocate for Bank submitted as Division Bench of Hon'ble
High Court Madras held that Section 5 of Limitation Act, has no application to the
Application filed under Section 17 of SARFAESI Act, 2002, as it is an original proceeding,
even if there are convincing reasons, the same cannot be considered. Hon'ble High Court of
Madras clearly held in Velar Engineering Works Private Limited case that, on a perusal of
Section 17 of SARFAESI Act, 2002, it is clear that there is no provision made under the
said Section for condoning the delay in filing the SARFAESI Application, and Application
must be filed within 45 days. Hon'ble Supreme Court in Bank of Baroda and Anr. Vs. M/s.
Parasaadilal Tursiram Sheetgrah Pvt. Ltd. & Ors., also, held that the reason for providing a
time limit of 45 days, can be inferred from the purpose and object of the enactment. So, a
combined reading of these two decisions, makes it very clear that, 45 days fixed in Section
17(1) of SARFAESI Act, 2002, is mandatory, and Section 17 Application, being original in
nature, after amendment, question of applying Section 5 of Limitation Act, does not arise.
10. As rightly pointed out by Advocate for Bank, even for the sake of argument, if it is
treated that Delay Condonation Application is maintainable, as there is no convincing and
sufficient reason, for inordinate delay of 945 days, request of Appellant cannot be
considered.
11. On a scrutiny of entire material, I am of the view that, viewed in any angle, the Appeal is
completely devoid of merits and Tribunal below is perfectly right in dismissing the Application
and there are no grounds to interfere with the same.
12. For the above reasons, the Appeal MA (SA) 32/2021 is dismissed. Both parties shall
bear their own costs. All pending IAs, if any, stand closed.