BALESHWAR DAYAL JAISWAL Vs BANK OF INDIA .
Bench: JAGDISH SINGH KHEHAR,ADARSH KUMAR GOEL
Case number: C.A. No.-005924-005924 / 2015
Diary number: 30227 / 2011
Advocates: PRAGYA BAGHEL Vs
PRANAB KUMAR MULLICK
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5924 OF 2015 (ARISING OUT OF SLP (C) NO.27674 OF 2011)
BALESHWAR DAYAL JAISWAL …APPELLANT
VERSUS
BANK OF INDIA & ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.5925 OF 2015 (ARISING OUT OF SLP (C) NO.36316 OF 2011)
WITH
CIVIL APPEAL NO.5926 OF 2015 (ARISING OUT OF SLP (C) NO.38436 OF 2012)
WITH
CIVIL APPEAL NO.5927 OF 2015 (ARISING OUT OF SLP (C) NO.5789 OF 2013)
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. Leave granted.
Page 2
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
2. The question in this batch of appeals is whether the
Appellate Tribunal under the Securitisation 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 submit that the Appellate Tribunal has the
power to condone delay in filing the appeal beyond by the
prescribed period of limitation because of the following
reasons:
(i) Section 18(2) of the SARFAESI Act
provides that the Appellate Tribunal shall
follow the provisions of the Recovery of
Debts Due to Banks and Financial
Institutions Act, 1993 (“the RDB Act”) in
disposing of the appeal unless otherwise
provided under the SARFAESI Act or the
rules made thereunder. The proviso to
2
Page 3
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
Section 20(3) of the 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
unless expressly excluded. There being
no provision in the SARFAESI Act
excluding the applicability of Sections 4
to 24 of the Limitation Act, delay can be
condoned under Section 5 of the
Limitation Act, and time can be excluded
under Section 14 of the Limitation Act
wherever applicable; and
(iii) Section 24 of the RDB Act makes the
Limitation Act applicable to an
3
Page 4
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
application made to a Tribunal. Section
36 of the SARFAESI Act makes period of
limitation prescribed under the
Limitation Act applicable to 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 proceedings before a
Court and not before a Tribunal; and
(iii) Provisions of Limitation Act can stand
excluded not only by an express
provision of a local or special law but
also by necessary implication from the
4
Page 5
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
scheme of such local or special law. The
scheme of the SARFAESI Act by making
the Limitation Act expressly applicable to
measures under section 13(4) of the Act
impliedly excludes the said Act from
appeals or other proceedings.
6. Learned counsel for the parties have brought to our
notice 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
India1 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 India2, the Bombay High Court in
UCO Bank, Mumbai vs. M/s. Kanji Manji Kothari and Co.,
Mumbai3 and the Madras High Court in Punnu Swami vs.
The Debts Recovery Tribunal4 have taken contrary view.
7. At this stage it will be appropriate to reproduce the
provisions of Sections 18 and 36 of the SARFAESI Act, Section
20 and Section 24 of the RDB Act and Section 29 of the
Limitation Act :
1 AIR 2011 MP 205 2 AIR 2013 AP 24 3 2008 (4) MhLj424 4 2009 (3) BJ 401
5
Page 6
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
“Sections 18 and 36 of the SARFAESI Act :
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 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 the Debts Recovery Tribunal, whichever is less: PROVIDED ALSO that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso.
(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.
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
6
Page 7
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
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 Appellate Tribunal 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 it to the parties to the appeal and to the concerned Tribunal.
(6) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.
Section 24 Limitation—The provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an application made to a Tribunal.
Section 29 of the Limitation Act
29. Savings- (1) Nothing in this Act shall affect section 25 of the Indian
Contract Act, 1872 (9 of 1872).
7
Page 8
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
(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, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories 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 of the RDB Act
stand incorporated in the SARFAESI Act for disposal of an
appeal. Once it is so, we are unable to discern any reason as
to why the SARFAESI Appellate Tribunal cannot entertain an
appeal beyond the prescribed period even on being satisfied
that there is sufficient cause for not filing such appeal within
that period. Even if power of condonation of delay by virtue of
8
Page 9
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
Section 29(2) of the Limitation Act were held not to be
applicable, the proviso to Section 20(3) of the RDB Act is
applicable 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 Bihar5, Bolani Ores Ltd. vs. State of Orissa6,
Mahindra and Mahindra Ltd. vs. Union of India7 and
Onkarlal Nandlal vs. State of Rajasthan8 relied upon on
behalf of the appellants. We have thus no hesitation in holding
that the Appellate Tribunal 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.
9. The fact that RDB Act and the SARFAESI Act are
complimentary to each other, as held by this Court in
Transcore vs. Union of India9, also supports this view.
5 (1969) 3 SCC 471 6 (1974) 2 SCC 777 7 (1979) 2 SCC 529 8 (1985) 4 SCC 404 9 (2008) 1 SCC 125
9
Page 10
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
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 power of
condonation. Reliance has been placed on principles of
statutory interpretation by Justice G.P. Singh, 12th Edition,
2010, page 310. It was further observed that the Limitation
Act was made applicable to a Tribunal under Section 24 of the
RDB Act, but there was no similar provision with respect to the
Appellate Tribunal. To justify such an inference, reliance has
also been placed on Gopal Sardar case and Fairgrowth
Investments Ltd. vs. The Custodian10. It was further
observed 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.”
10 (2004) 11 SCC 472
10
Page 11
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
11. It is difficult to appreciate how the above principle
justifies the view of the High Court. The change intended in
SARFAESI Act has to be seen from the statute and not from
beyond it. No doubt the period of limitation for filing appeal
under Section 18 of the SARFAESI Act is 30 days as against 45
days under Section 20 of the RDB Act. To this extent,
legislative intent may be deliberate. The absence of an
express provision for condonation, when Section 18(2)
expressly adopts and incorporates 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
Act. Taking such a view will be nullifying Section 18(2) of the
SARFAESI Act. We are thus, unable to uphold the view taken
by the Madhya Pradesh High Court.
12. We approve the view taken by the Madras, Andhra
Pradesh and Bombay High Courts, but for different reasons.
The view taken by Andhra Pradesh High Court in Sajida
11
Page 12
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
Begum vs. State Bank of India11 is based on applicability of
Section 29(2) of the Limitation Act. In our view, Section 29(2)
of the Limitation Act has no absolute application, 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.12, Chhattisgarh State Electricity Board vs. Central
Electricity Regulatory Commission13, Commissioner of
Customs and Central Excise vs. Hongo India Private
Limited14 and Gopal Sardar vs. Karuna Sardar15 relied
upon on behalf of the Banks.
13. We may now advert to the last question as to whether the
Appellate Tribunal under the SARFAESI Act was not a Court and
therefore, Section 29(2) of the Limitation Act was not
attracted.
14. The Andhra Pradesh High Court in Sajida Begum case in
holding the Tribunal to be Court, has relied on Sections 22 and
11 AIR 2013 AP 24 12 (1995) 5 SCC 5 13 (2010) 5 SCC 23 14 (2009) 5 SCC 791 15 (2004) 4 SCC 252
12
Page 13
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
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 not be conclusive of
the question of the Tribunal being Court for Section 29(2) of
the Limitation Act without further examining the scheme of the
statutes in question. In Nahar Industrial Enterprises Ltd.
vs. Hong Kong and Shanghai Banking Corpn.16, this
Court examined the scheme of the two Acts in question and
held that the Tribunal was a court but not a civil court for
purposes of Section 24 of the CPC. We are of the view that for
purposes of decision of these appeals, it is not 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
16 (2009) 8 SCC 646
13
Page 14
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
Limitation Act having been expressly incorporated under the
special statutes in question, Section 29(2) stands impliedly
excluded. To this extent, we differ with the view taken by the
Andhra Pradesh High Court as well as Madras and Bombay
High Courts. We are also in agreement with the principle that
even though Section 5 of the Limitation Act may be impliedly
inapplicable, principle of Section 14 of the Limitation Act can
be held to be applicable even if Section 29(2) of the Limitation
Act does not apply, as laid down by this Court in
Consolidated Engineering Enterprises vs. Principal
Secretary, Irrigation Department17 and M.P. Steel
Corporation vs. Commissioner of Central Excise18 .
15. As a result of the above discussion, the question is
answered in the affirmative by holding that 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. The contrary view taken by the Madhya Pradesh High
Court in Seth Banshidhar Media Rice Mills Pvt. Ltd. case
is overruled.
16. Accordingly, the appeal filed by the Bank against the
judgment of the Andhra Pradesh High Court is dismissed and
17 (2008) 7 SCC 169 18 (2015) 5 SCALE 505
14
Page 15
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
the appeals filed by the borrowers are allowed. The impugned
orders passed by the High Court of Madhya Pradesh (in
appeals arising out of SLP (C) No.27674 of 2011 and SLP (C)
No.36316 of 2011) are set aside and the matters are remanded
to the High Court for being dealt with afresh in accordance
with law. The appeal arising out of SLP (C) No.38436 of 2012
has been preferred directly from the order of the Debt
Recovery Appellate Tribunal, Delhi passed by the said tribunal
relying upon the judgment of the Madhya Pradesh High Court
in Seth Banshidhar Media Rice Mills Pvt. Ltd. case. The
said impugned order is also set aside and the matter is
remanded to the Debt Recovery Appellate Tribunal, Delhi for
being dealt with afresh in accordance with law.
17. All the appeals are disposed of accordingly.
…………..……..…………………………….J. [ JAGDISH SINGH KHEHAR]
…………..….………………………………..J. [ ADARSH KUMAR GOEL ]
NEW DELHI AUGUST 05, 2015
15
Page 16
Civil Appeal No….. of 2015 @ SLP (C) No.27674 of 2011 etc.
16