Vilas V. Afzulpurkar, J.

Petitioner herein has challenged the order dated 04.05.2012 passed by the Debts Recovery Appellate Tribunal (DRAT), Chennai dismissing the application filed by the petitioner, being I.A.No.1654 of 2010 in AIR(SA).No.1012 of 2010.

2. The aforesaid appeal and the interlocutory application were preferred before DRAT against order of the Debts Recovery Tribunal-II (DRT), Hyderabad in S.A.No.142 of 2010 dated 27.08.2010. In the said appeal before DRT, the petitioner had questioned the possession taken over by the respondents with regard to the secured asset i.e. house bearing No.18-12-419/941/A/1 situated at Hafez Baba Nagar, Kanchan Bagh, Hyderabad. Petitioner asserts that she is the absolute owner and possessor of the said house property by virtue of a registered gift deed dated 27.02.2009 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 [LQ/MPHC/2011/923] ) holding that under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the appellate tribunal has no power to condone the delay in presentation of the appeal. The correctness of the said view is questioned in this writ petition.

3. We have heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondent bank.

4. Learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in THIRUMALAI CHEMICALS LTD. v. UNION OF INDIA (2011) 6 SCC 739 [LQ/SC/2011/551] ) and a Full Bench judgment of the High Court of Calcutta in UNION OF INDIA v. JAGADISH PRASAD JALAN NANDALAL (2012 (7) TMI 641) to which one of us is a party (the Honble the Acting Chief Justice). He also placed reliance upon a Division Bench judgment of the Bombay High Court in UCO BANK, MUMBAI v. M/s. KANJI MANJI KOTHARI AND CO. (2008 (4) MHLJ 424 [LQ/BomHC/2008/331] = LAWS (BOM) 2008 (2) 173) [LQ/SC/2008/1061] and a decision of the Supreme Court in FAIRGROWTH INVESTMENTS LTD. v. CUSTODIAN (2004) 11 SCC 472 [LQ/SC/2004/1208] ).

5. Per contra, learned standing counsel for the respondent bank placed reliance upon a decision of the Supreme Court in L.S. SYNTHETICS LTD. v. FAIRGROWTH FINANCIAL SERVICES LTD. (2004) 11 SCC 456 [LQ/SC/2004/996] ); THE COMMISSIONER OF SALES TAX, U.P., LUCKNOW v. M/s. PARSON TOOLS AND PLANTS, KANPUR (1975) 4 SCC 22 [LQ/SC/1975/89] ); BIRLA CEMENT WORKS v. G.M. WESTERN RAILWAYS (AIR 1995 SC 1111 [LQ/SC/1995/4] ); PRAKASH H. JAIN v. MARIE FERNANDES (2003) 8 SCC 431 [LQ/SC/2003/969] ); a judgment of the Kerala High Court in JAYAN v. HONG KONG AND SHANGHAI BANKING CORPORATION LTD. (IV (2009) BC 635); NOHARLAL VERMA v. DISTRICT CO-OPERATIVE CENTRAL BANK LIMITED (2008) 14 SCC 445 [LQ/SC/2008/2121] ) and lastly the decision of the Supreme Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE v. HONGO INDIA P. LTD. (2009) 5 SCJ 774).

6. Before we appreciate the rival contentions, the legislative environment spread over the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act); the Recovery of Debts Due To Banks and Financial Institutions Act, 1993 (for short the DRT Act) and the Limitation Act, 1963, may be noticed so far as is relevant. Section 17 of the SARFAESI Act provides a forum for adjudication of claim of any person challenging any of the security measures taken by the secured creditor and the said forum is provided before the DRT constituted under the DRT Act. For the sake of convenience 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 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 the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963 (36 of 1963).

37. Application of other laws barred. - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.

Though Section 17 of SARFAESI Act is styled as a right to appeal, it is, in fact, a forum for original proceedings against the security measures. Sub-section (7) of Section 17 provides that any application made under Section 17 of SARFAESI Act shall be disposed of in accordance with the provisions of the DRT Act and the Rules made thereunder. Section 18 of SARFAESI Act provides a right to appeal to DRAT against orders of DRT passed under Section 17 of SARFAESI Act.

Such appeal is also required to be disposed of in accordance with the provisions of the DRT Act and the Rules made thereunder.

7. The following provisions of the DRT Act may also be noticed.

The DRT and DRAT are established under Section 3(1) and 8(1) respectively and the respective exclusive jurisdiction of the tribunal and the appellate tribunal are provided for under Section 17 of the DRT Act. The procedure and powers of tribunal and appellate tribunal are governed by Section 22 of the DRT Act, which is extracted hereunder:

22. Procedures and powers of the Tribunal and the Appellate Tribunal.

(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall 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 would be noticed from the above that the tribunal and the appellate tribunal while discharging their functions exercise same powers as are vested in civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of specified matters, as above.

8. Section 24 of the DRT Act, extracted below, provides that the provisions of the Limitation Act apply to an application made to the tribunal.

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.

9. Section 29 of the Limitation Act, to the extent relevant, is necessary to be noticed as follows:

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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

As would be noticed from sub-clause (2) above that Sections 4 to 24 (inclusive) of the Limitation Act would apply to any special or local law, if such special or local law does not expressly exclude the applicability of Sections 4 to 24 of the Limitation Act.

10. The interpretation of Section 29 of the Limitation Act is considered in several decisions and it would be apt to notice a decision of the Supreme Court

in MUKRI GOPALAN v. CHEPPILAT PUTHANPURAYIL ABOOBACKER (1995) 5 SCC 5 [LQ/SC/1995/692] = AIR 1995 SC 2272 [LQ/SC/1995/692] ) wherein the question that fell for consideration is whether the appellate authority constituted under Section 18 of the Kerala Rent Control Act has power to condone the delay and whether Sections 4 to 24 of the Limitation Act are applicable thereto, which includes Section 5 of the Limitation Act. Paras 10, 11, 13, 15 and 22 are relevant for our purpose and are extracted hereunder:

10. In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal 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 [LQ/SC/1963/311] ), when the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit for it, it can be said that under the first schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period. While the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.

11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. That was the view taken by the minority decision of the learned single Judge of Kerala High Court in Jokkim Fernandez Vs. Amina Kunhi Umma (AIR 1974 KER 162 [LQ/KerHC/1972/125] ). The majority did not agree on account of its wrong supposition that appellate authority functioning under Section 18 of the Rent Act is a persona designata. Once that presumption is found to be erroneous as discussed by us earlier, it becomes at once clear that minority view in the said decision was the correct view and the majority view was an erroneous view.

...

13. As per this sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section 5) relating to the power of the court to condone delay in 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 legislature.

15. After repealing of Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in Section 29(2). The present Section 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted, the provisions contained in Sections 4 to 24 both inclusive would get attracted which obviously would bring in Section 5 which also shall apply to such proceedings unless applicability of any of the aforesaid Sections of the Limitation Act is expressly excluded by such special or local law. By this change it is not necessary to expressly state in a special law that the provisions contained in Section 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provision contained in Section 29(2) this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for any exclusion. It is on this basis that when the new Rent Act was passed in 1965 the provision contained in old Section 31 was omitted. It becomes therefore apparent that on a conjoint reading of Section 29(2) of Limitation Act of 1963 and Section 18 of the Rent Act of 1965, provisions of Section 5 would automatically get attracted to those proceedings, as there is nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the Limitation Act to appeals under Section 18 of the Rent Act.

...

22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963 such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the concerned applicant for the delay in filing such appeals. The decision rendered by the High Court in the present case as well as by 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 proceedings under Sections 17 and 18 of the SARFAESI Act before the DRT as well as DRAT. Consequently, therefore, the order impugned passed by the DRAT rejecting the petitioners application for condonation of delay for want of jurisdiction is liable to be set aside.

13. The decision in SETH BANSHIDHAR KEDIA RICE MILLS PVT. LTD.s case (1 supra) which is the basis for passing of the impugned order by DRAT, with respect, does not lay down correct law and as shown above is, in fact, contrary to the ratio of the Supreme Court in MUKRI GOPALANs case (13 supra) quoted above. With respect, therefore, we are unable to subscribe to the view of the Madhya Pradesh High Court in the aforesaid decision.

14. Now coming to the decisions cited by the learned counsel for the petitioner, the decision in THIRUMALAI CHEMICALS LTDs case (2 supra) is totally inapplicable to the present case, as it dealt with a case under the Foreign Exchange Management Act, 1999 which provides power of appeal under Section 19(1); procedure for appeal under Section 19(2) and the power of tribunal to condone the delay in filing of an appeal under proviso to Section 19(2). The question involved herein, therefore, did not arise in that case. Similarly, the decision in JAGADISH PRASAD JALAN NANDALALs case (3 supra) is also distinguishable, on facts, as in the said decision Section 35 of the FEMA r/w Section 34 of the Arbitration and Conciliation Act, 1996, were considered and Section 35, which provides the limitation of not exceeding 60 days, was held indicative of exclusion of Section 5 of the Limitation Act in terms of Section 6 of the General Clauses Act.

In the decision in UCO BANKs case (4 supra), the aforesaid similar question was considered and answered by holding that Section 5 of the Limitation Act would be applicable to the appeal or application under Section 17(1) of the Act. The decision of the Supreme Court in FAIRGROWTH INVESTMENTS LTDs case (5 supra), which dealt with the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, is not applicable to the facts and question of law arising in the present matter.

15. The decision of the Supreme Court in L.S. SYNTHETICS LTDs case (6 supra) relied upon by the learned counsel for the respondent bank is already considered by the Supreme Court while considering 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 TAXs 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 WORKSs 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. JAINs 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 JAYANs 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 GOPALANs case (13 supra). With respect, therefore, we express our inability to agree with the said view. Similarly, the decision in NOHARLAL VERMAs case (11 supra) is also distinguishable as it considered, on facts, as to whether sufficient cause was made out.

The last of the decisions in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISEs case (12 supra) considered the provisions of the Central Excise Act, 1944 wherein the Act itself provided for the forum for appeal and revision etc. together with power of the appellate and revisional authority to condone the delay for the respective periods provided for appeal and revision. It was, on those circumstances, held that no further power of condonation under Section 5 of the Limitation Act is available. Obviously, that decision has no application to the statutory environment in the present case.

16. In the result, therefore, we hold that the provisions of the Section 5 of the Limitation Act are applicable to the proceedings before DRAT under Section 18 of the SARFAESI Act. Consequently, the impugned order is set aside and the Debts Recovery Appellate Tribunal, Chennai is directed to consider the petitioners application for condonation of delay afresh on merits and pass appropriate orders in accordance with law preferably within a period of two (2) months from the date of receipt of a copy of this order.

The writ petition is accordingly allowed. As a sequel to the disposal of the writ petition, the miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.