M. Gurusamy and anr. Vs. Authorised Officer/Chief Manager, Indian Bank - Court Judgment

Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orders. palanivelu, j.1. the petitioners are borrowers from the respondent. for recovery of money, the respondent took steps under the provisions of sarfaesi act and issued possession notice as contemplated under section 13(4) of the act on 8-10-2007 to the petitioner. if the petitioners are aggrieved by the proceedings, they have to prefer appeal before the debts recovery tribunal, coimbatore within 45 days. however they filed appeal before the debts recovery tribunal, coimbatore after 49 days. hence they filed a petition under section 5 of the limitation act to condone the delay of 4 days in filing the appeal before debts recovery tribunal, coimbatore.2. the presiding officer of the said tribunal rejected the application on 10-12-2007 by observing that section 5 of the limitation act is applicable in respect of 'courts' only and not to the tribunals. hence, the said petition seeking for condonation of delay is rejected.3. heard mr. c. k. m. appaji, learned counsel appearing for the petitioners and mr. v. raghavachari, learned counsel appearing for the respondent.4. learned counsel appearing for the petitioners has relied on a decision of this court reported in 2009 (2) ctc 302 ponnusamy v. the debts recovery tribunal wherein the learned judge has held that when the special statute does not say specific provisions as to the exclusion of applicability of section 5 of limitation act, the said provision can be made applicable, to which conclusion, the learned judge has referred and followed various decisions of the supreme court. at para 36 of the above decision, it is held as follows:36. therefore it is clear that section 5 would apply even to some types of applications, though it may not apply to suits. the proceedings before the debts recovery tribunal under section 17 of the sarfaesi act, though original in nature, should be treated as applications and not strictly like suits. therefore, the provisions of section 5 of the limitation act in my considered view would apply to applications, under section 17 of the sarfaesi act but the same logic cannot be extended to applications filed under section 19 of the recovery of debts due to banks and financial institutions act, 1993, since section 24 of the 1993 act makes the provisions of the limitation act, 1963 applicable to an application under the act, meaning thereby that an application under section 19 of the 1993 act is to be treated as a suit.5. in view of the abovesaid legal position, it is made clear that section 5 of the limitation act is very well applicable to the proceedings under sarfaesi act and it is held that the petition is maintainable. however it is for the petitioner to show before the tribunal the sufficient cause for the delay of 4 days.6. in fine, the above civil revision petition is allowed directing the presiding officer, debts recovery tribunal, coimbatore to restore the application filed by the petitioners under section 5 of limitation act and to dispose of the same in accordance with law.

Judgment:
ORDER

S. Palanivelu, J.

1. The petitioners are borrowers from the respondent. For recovery of money, the respondent took steps under the provisions of SARFAESI Act and issued possession notice as contemplated under Section 13(4) of the Act on 8-10-2007 to the petitioner. If the petitioners are aggrieved by the proceedings, they have to prefer appeal before the Debts Recovery Tribunal, Coimbatore within 45 days. However they filed appeal before the Debts Recovery Tribunal, Coimbatore after 49 days. Hence they filed a petition under Section 5 of the Limitation Act to condone the delay of 4 days in filing the appeal before Debts Recovery Tribunal, Coimbatore.

2. The Presiding Officer of the said Tribunal rejected the application on 10-12-2007 by observing that Section 5 of the Limitation Act is applicable in respect of 'Courts' only and not to the Tribunals. Hence, the said petition seeking for condonation of delay is rejected.

3. Heard Mr. C. K. M. Appaji, learned Counsel appearing for the petitioners and Mr. V. Raghavachari, learned Counsel appearing for the respondent.

4. Learned Counsel appearing for the petitioners has relied on a decision of this Court reported in 2009 (2) CTC 302 Ponnusamy v. The Debts Recovery Tribunal wherein the learned Judge has held that when the special statute does not say specific provisions as to the exclusion of applicability of Section 5 of Limitation Act, the said provision can be made applicable, to which conclusion, the learned Judge has referred and followed various decisions of the Supreme Court. At para 36 of the above decision, it is held as follows:

36. Therefore it is clear that Section 5 would apply even to some types of applications, though it may not apply to suits. The proceedings before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, though original in nature, should be treated as Applications and not strictly like suits. Therefore, the provisions of Section 5 of the Limitation Act in my considered view would apply to applications, under Section 17 of the SARFAESI Act But the same logic cannot be extended to applications filed under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, since Section 24 of the 1993 Act makes the provisions of the Limitation Act, 1963 applicable to an Application under the Act, meaning thereby that an Application under Section 19 of the 1993 Act is to be treated as a Suit.

5. In view of the abovesaid legal position, it is made clear that Section 5 of the Limitation Act is very well applicable to the proceedings under SARFAESI Act and it is held that the petition is maintainable. However it is for the petitioner to show before the Tribunal the sufficient cause for the delay of 4 days.

6. In fine, the above Civil Revision Petition is allowed directing the Presiding Officer, Debts Recovery Tribunal, Coimbatore to restore the application filed by the petitioners under Section 5 of Limitation Act and to dispose of the same in accordance with law.