Sri V Thulasiram vs The Authorised Officer

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Sri V Thulasiram vs The Authorised Officer on 12 March, 2026

®
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WP No. 20193 of 2025

               HC-KAR

               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 12TH DAY OF MARCH, 2026

                                        BEFORE
                THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
                    WRIT PETITION NO. 20193 OF 2025 (GM-DRT)

               BETWEEN:

               1.   SRI V.THULASIRAM
                    S/O VISHWANATH,
                    AGED ABOUT 53 YEARS,
                    R/A NO.53 LAKSHMIPURAM,
                    1ST MAIN ROAD, HALASURU,
                    BENGALURU
                    KARNATAKA - 560 008

               2.   SMT.BHUVANESHWARI,
                    W/O V.THULASIRA,

Digitally signed
by SUVARNA T AGED ABOUT 46 YEARS,
Location: HIGH
COURT OF R/A NO.53 LAKSHMIPURAM,
KARNATAKA
1ST MAIN ROAD, HALASURU,
BENGALURU,
KARNATAKA-560 008
...PETITIONERS
(BY SRI.D.R.RAVISHANKR, SENIOR COUNSEL FOR
SMT.SIRI RAJASHEKAR, ADVOCATE)
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AND:

1. THE AUTHORISED OFFICER
   CANARA BANK,
   MAGADI ROAD II BRANCH,
   NO.46, MAGADI MAIN ROAD,
   BESIDE ANJAN CUMEMAS,
   BENGALURU,
   KARNATAKA -560 023

2. SRIRAM APPADURAI,
   S/O V SRIRAM,
   AGED MAJOR,
   NO.1/8, VAIDYANATHA,
   VIJAYAM, ARTILLERY ROAD,
   ULSOOR, BENGALURU,
   KARNATAKA-560 008
   ...RESPONDENTS
   (BY SRI.VIGNESH SHETTY, ADVOCATE FOR C/R1
   SMT.APARNA N., ADVOCATE FOR
   SMT.BHAVANA G.K., ADVOCATE FOR R2)

   THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
   THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
   ORDER IN IA NO. 2576/2024 FILED IN SA NO. 597/2024
   DATED 28.03.2025 PASSED BY THE DEBTS RECOVERY
   TRIBUNAL-1 VIDE ANNEXURE -A.

   THIS WRIT PETITION HAVING BEEN HEARD AND
   RESERVED ON 10.11.2025, COMING ON FOR
   PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
   PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                      CAV ORDER

 The present writ petition is filed seeking the following

prayer:

                        "PRAYER
    WHEREFORE, the petitioner most humbly prays that
  this Hon'ble court be pleased to:
  a) ISSUE A writ of appropriate nature to set aside the
  order in IA.No.2576/2024, filed in SA.No.597/2024,
  dated 28.03.2025 passed by the Debts Recovery
  Tribunal-1 vide Annexure-A; and
  b) PASS such other orders as may be deemed
  appropriate in the ends of justice and equity."

  2. It is the case of the petitioners that the petitioners had

filed SA.No.597/2024 on 19.11.2024 seeking to quash/set

aside the sale notice dated 17.08.2024 by declaring it as illegal

and void ab initio on the ground that measures initiated by

respondent No.1 is in violation of the [Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002](https://indiankanoon.org/doc/52229129/) (hereinafter referred to as 'Act'). The

petitioner also filed I.A.No.2576/2024 on 19.11.2024 under Section 5 of the Limitation Act, 1963 read with Section 24 of

the Recovery Debts and Bankruptcy Act, 1993 praying to

condone the delay of 49 days in filing SA.No.597/2024 under
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HC-KAR [Section 17(1)](https://indiankanoon.org/doc/141981259/) of the SARFAESI Act. SA.No.597/2024 came to

be dismissed on 28.03.2025 on the ground that SA is barred by

limitation and is not maintainable before the Tribunal.

Aggrieved thereby, the petitioners are before this Court.

     3. Learned Senior counsel appearing for the petitioners

submits that "whether the Debts Recovery Tribunal has the

power to condone the delay beyond 45 days in filing an

application under Section 17 of the SARFAESI Act" is a question

which is directly pending consideration before the Hon'ble

Supreme Court in SLP(C).No.4754/2021 arising from the

judgment of the Kerala High Court dated 02.11.2020. The

Hon'ble Supreme Court upon being satisfied of the importance

of the issue had issued notice, thereby seizing itself of the

matter. It is submitted that the Division Bench of Madhya

Pradesh High Court in Aniruddh Singh Vs. ICICI Bank Ltd.1,

while interpreting provisions of Section 29(2) and Section 5 of

the Limitation Act had held that the action taken under [Section

17](https://indiankanoon.org/doc/112742697/) of the SARFAESI Act, by virtue of Section 29(2) of the

Limitation Act, the SARFAESI Act does not expressly exclude

1
2024 SCC Online MP 205
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the application of the provisions from Section 4 to 24 of the

Limitation Act including Section 5.

     4. Learned Senior counsel had relied on the judgment of

the Division Bench of Punjab & Haryana High Court in case of

Surinder Mahajan Vs. Debts Recovery Appellate Tribunal2

and submits that it is held that in the absence of any provision

under the Act excluding the applicability of the Limitation Act to

the proceedings before the DRT under Section 17 would not be

proper. Learned Senior counsel had also relied on the judgment

of the Division Bench of High Court of Telangana in case of

Porus Laboratory Private Limited Vs. Indian Bank3,

wherein relying upon the judgment of the Hon'ble Apex Court in

Baleshwar Dayal Jaiswal Vs. Bank of India and others4, it

is held that the DRT may exercise similar powers as exercised

by the DRAT and may entertain application filed beyond the

prescribed period. Learned counsel had relied on the judgment

of the Madras High Court in case of Ponnusamy Vs. Debts

2
2013 SCC Online P&H 7088
3
2018 SCC Online Hyd 161
4
(2016) 1 SCC 444
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Recovery Tribunal5, wherein it is held that the SARFAESI Act does not exclude the application of the provisions of the Limitation Act and remedy under Section 17(1) is in respect of

right of redemption and to say Section 5 of the Limitation Act

will not apply to an SA would virtually defeat the valuable right

of redemption. He had relied on the judgment of the Co-

ordinate Bench of this Court in case of H.V. Gopal & Ors Vs.

The Bangalore Souhardha Central Co-operative Bank Ltd

arising out of WP.No.21349/2022 dated 08.07.2024, the

Court had held that provisions contained in Section 5 of the

Limitation Act would be applicable to an application/appeal filed

before the DRT under Section 17 of the SARFAESI Act.

     5. It is submitted that "whether this Court must defer the

consideration of the petition in WP.No.20193/2025 since the

question of law is pending before the Apex Court

notwithstanding a decision of Division Bench in

WP.No.11273/2024". It is submitted that Coordinate Bench

Ruling in Kailasam P Vs. Karnataka Bank Limited6 itself is

liable to be revisited in the light of the Hon'ble Apex Court's

5
2009-1-L.W.954
6
2025 SCC OnLine Kar 16631
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judgment and Review Petition which is pending consideration.

It was not brought to the notice of the Division Bench regarding

the pending SLP(C).No.4754/2021. When the Hon'ble Supreme

Court has ceased of the matter, the Division Bench ought not to

have delved upon the matter. It is submitted that the Hon'ble

Apex Court alone has the authority to settle questions of law

when the matter is ceased before it. Until such settlement is

made to decide the matter, may render an order that could

soon stand in conflict with the Hon'ble Supreme Court

judgment, creating needless multiplicity and prejudice to the

parties. It is submitted that in such circumstances, judicial

discipline and constitutional propriety demand that this Court

defer consideration of the issue until the Hon'ble Supreme

Court renders its authoritative pronouncement. To proceed and

decide a matter on which the Hon'ble Supreme Court has

already issued notice, it would undermine the constitutional

scheme and might lead to possibility of conflicting rulings and

may be contrary to what the Hon'ble Supreme Court may

ultimately hold.
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     6. It is also submitted that the Hon'ble Apex Court in case

of Indian Overseas Bank Vs. Ashok Saw Mills7 had held

that the action taken by the bank under Section 13(4) of the

SARFAESI Act is a continuous cause of action in context of Section 13(8) and therefore, the DRT would have jurisdiction to

consider and adjudicate with regard to Section 13(4) events. It

further held that DRT has been vested with jurisdiction to

declare any such action as invalid and necessarily implies that

borrower are entitled to question the action taken by the

secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. Therefore, if the action of respondent

No.1 in issuance of Sale Certificate is to be taken then the

period starts from 08.11.2024 or 09.10.2024, then the SA is

filed within time.

     7. It is submitted that this Court vide order dated

27.09.2024 had directed the parties to maintain status quo as

on that day in relation to possession and title of schedule

property. When the matter was listed on 08.11.2024,

respondent No.1 made submission that the sale certificate is

issued and the Court records the same and interim order stands
7
(2009) 8 SCC 366
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vacated. Notwithstanding the fact that there was interim order

operating against respondent No.1 to maintain status quo with

respect to possession and title of the property, the bank had

committed an act of contempt violating the interim order

passed on 27.09.2024. It is submitted that the Hon'ble Apex

Court in case of Vidur Impex & Traders Pvt. Ltd. & Ors Vs.

Tosh Apartments Pvt. Ltd. & Ors8, had held that person

cannot acquire right in violation of the injunctive order and

lacked legal sanctity or bonafide status. Such transactions are

tainted and cannot be recognised in law.

     8. It is submitted that the appeal filed before the DRAT

was withdrawn by the petitioner. The petitioner had filed

withdrawal application on 23.07.2023 before the DRAT and on

01.08.2025, the Tribunal had passed an order and dismissed as

withdrawn. As such, the respondent cannot contend that the

petitioner is still pursuing the matter before the DRAT. It is

submitted that the petitioner had challenged the sale notice

dated 17.08.2024 in WP.No.25944/2024 on the ground that

there was non compliance of Section 13(4) of the SARFAESI Act

and Rule 8(5) of the Security Interest (Enforcement) Rules,
8
2012 8 SCC 384
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1. A Co-ordinate Bench of this Court by order dated

27.09.2024 directed the parties to maintain status quo as on

that day in relation to possession and title of the schedule

property. On 08.11.2024, respondent No.1 made submission

that the sale certificate is issued and the Court recorded the

same and interim order stands vacated. It is submitted that the

bank had committed an act of contempt violating the interim

order passed on 27.09.2024. The petitioner immediately filed

I.A.No.1/2024 seeking to recall the order dated 08.11.2024 in

WP.No.25944/2024. Parallelly, the petitioner approached the

DRT and instituted SA.No.597/2024 on 19.11.2024 seeking to

quash the sale notice dated 17.08.2024. It is submitted that in

the light of the clear violation of the earlier orders and the fact

that the Court ought to have condoned the delay, the writ

petition is liable to be allowed.

  9. Learned counsel appearing for respondent No.1/bank

has filed the written argument stating that on 19.11.2024, the

petitioner had filed SA.No.597/2024 under Section 17 of the

SARFAESI Act, 2002 calling in question the sale notice dated

17.08.2024. Along with the said SA, I.A.No.2576/2024 was
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filed under Section 5 of the Limitation Act and the same was

dismissed by the DRT and consequently, dismissed

SA.No.597/2024 as the same is barred by limitation. It is

submitted that the only question that arises for consideration

before this Court is whether the DRT has power to condone the

delay under Section 5 of the Limitation Act in filing application

under Section 17 of the SARFAESI Act. It is submitted that as

per Section 17 of the SARFAESI Act, any person aggrieved by

any of the measures referred to in sub-section (4) of [Section

13](https://indiankanoon.org/doc/152603276/), can approach the Debts Recovery Tribunal within 45 days

from the date on which such measure had been taken. It is

submitted that a period of 45 days is envisaged as per the

provisions of the Act.

  10. It is submitted that the issue whether the DRT has

the power to condone the delay or not is no more res integra in

the light of the judgment of the Division bench of this Court in

Kailasam's case referred supra, wherein the Division Bench

had categorically held that the DRT does not have the power to

condone the delay and the period of 45 days under Section 17 is mandatory. It is submitted that the reliance placed by the
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petitioner on Baleshwar Dayal's case is misconceived. In

Baleshwar Dayal's case, the Hon'ble Apex Court was

considering the question of condonation of delay by DRAT

under Section 18, which is an appeal provision. In fact, the

Division Bench of this Court in Kailasam's case referred supra

after considering Baleshwar Dayal's case has come to the

conclusion that delay in filing Section 17 application cannot be

condoned since a proceeding under Section 17 is original

proceedings and difference has to be maintained between the

original and appellate proceedings. It is submitted that the

question whether delay under Section 17 can be condoned,

whether the ratio of Baleshwar Dayal's case should apply to Section 17 proceedings is pending before the Hon'ble Supreme

court in SLP(C).No.4754/2021. It is submitted that in case of

Mardia Chemicals Ltd. vs. Union of India9, the Hon'ble

Supreme Court had held that the proceedings under Section 17 are not appellate proceedings but are in the nature of initial

proceeding like filing an original suit in Civil Court and he relied

on paragraph No.59 of the judgment which reads thus:

9
(2004) 4 SCC 311
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     "59. We may like to observe that proceedings under [Section 17](https://indiankanoon.org/doc/112742697/) of the Act, in fact, are not appellate
     proceedings. It seems to be a misnomer. In fact it is
     the initial action which is brought before a forum as
     prescribed under the Act, raising grievance against
     the action or measures taken by one of the parties to
     the contract. It is the stage of initial proceeding like
     filing a suit in civil court. As a matter of fact
     proceedings under [Section 17](https://indiankanoon.org/doc/112742697/) of the Act are in lieu of
     a civil suit which remedy is ordinarily available but
     for the bar under [Section 34](https://indiankanoon.org/doc/6431889/) of the Act in the present
     case. We may refer to a decision of this Court
     in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393]
     where     in   respect   of  original    and   appellate
     proceedings a distinction has been drawn as follows:
     (SCC p. 397, para 15)

     "There is a basic distinction between the right of suit
     and the right of appeal. There is an inherent right in
     every person to bring a suit of civil nature and unless
     the suit is barred by statute one may, at one's peril,
     bring a suit of one's choice. It is no answer to a suit,
     howsoever frivolous to claim, that the law confers no
     such right to sue. A suit for its maintainability
     requires no authority of law and it is enough that no
     statute bars the suit. But the position in regard to
     appeals is quite the opposite. The right of appeal
     inheres in no one and therefore an appeal for its
     maintainability must have the clear authority of law.
     That explains why the right of appeal is described as
     a creature of statute."

     11. Learned counsel has also relied on the judgment of

the Division Bench of Calcutta High Court in Akshat

Commercial Pvt. Ltd. Vs. Kalpana Chakraborty10, wherein

it is held that the provisions of the Limitation Act applies in

general 'as far as may be', yet Section 5 of the Limitation Act

has no application to Section 17 as the proceeding is original in

10
2010 SCC OnLine Cal 1361
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nature like suit and Section 5 and Section 29(2) has no

application to proceedings before the Tribunal. It is submitted

that Section 17(5) of the SARFAESI Act provides that an

application made under sub-section (1) shall be dealt with by

the DRT as expeditiously as possible and disposed of within 60

days from the date of such application. The proviso to [Section

17(5)](https://indiankanoon.org/doc/70231376/) further provides that any extension of time for disposal of

such application must be for reasons recorded in writing and

the total period of pendency of the application with the DRT

shall not in any case exceed 4 months. It is further submitted

that prescription of an outer limit for disposal is indicative of

the legislative intent to exclude the provisions of the limitation

act for condoning the delay.

     12. Learned counsel has also relied on the judgment of

the Hon'ble Apex Court in Bank of Baroda Vs. Parasaadilal

Tursiram Sheetgrah (P) Ltd.11, wherein the Hon'ble Apex

Court had observed that the reason for providing a time-limit of

45 days for filing an application under Section 17 can easily be

inferred from the purpose and object of the enactment. In case

11
(2023) 19 SCC 751
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of Transcore Vs. Union of India12, it is held that the SARFAESI Act is enacted for quick enforcement of the security.

It is unfortunate that proceedings where a property that has

been brought to sale and third party rights created under the

provisions of the Act have remained inconclusive even after a

decade. Learned counsel had relied on the judgment of the

Hon'ble Apex Court in case of CCE & Customs Vs. Hongo

India (P) Ltd.13, wherein the Court was deciding the question

as to whether the High Court can condone delay beyond period

prescribed under Section 35-H of the Central Excise Act. The

Court held that in the absence of any clause condoning delay

by showing sufficient cause after prescribed period, there is

complete exclusion of Section 5 of the Limitation Act. Even in a

case where the special law does not exclude provisions of Limitation Act by an express reference, it is open for the Court

to examine as to what extent the nature of special law and its

scheme exclude their operation.

     13. Further, it is submitted that mere pendency of a

matter before the Hon'ble Supreme Court is not a ground for

12
2008 (1) SCC 125
13
(2009) 5 SCC 791
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the petitioner to submit that the binding judgment of the

Division Bench should not be followed. It is submitted that in

case of Ashok Sadarangani Vs. UOI14, the Hon'ble Supreme

Court had held that till such time as the decisions are not

modified or altered in any way, they continue to hold the field

and mere pendency of reference to a larger bench does not

mean that all other proceedings involving same issue would

have to be stayed. Similarly, in Rajnish Kumar Rai Vs. Union

of India15, the Hon'ble Supreme Court had held that a decision

which is referred to larger bench continues to hold the field and

has binding status until decision of larger bench. It is submitted

that the writ petition is liable to be dismissed.

     14.    Learned      counsel        appearing     for     respondent

No.2/auction purchaser has also placed the written submissions

before this Court stating that respondent No.2 had purchased

the property vide sale notice dated 17.08.2024 and auction

conducted on 06.09.2024 by respondent No.1/Bank. It is stated

that the petitioners had approached the DRT by filing

SA.No.597/2024 and in that, they had filed I.A.No.2576/2024.

14
(2012) 11 SCC 321
15
(2023) 14 SCC 782
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When the DRT rejected I.A.No.2576/2024 and consequently

dismissed SA.No.597/2024 on 28.03.2025, the petitioners on

16.05.2025 had approached the DRAT challenging the order

passed by DRT. Suppressing these facts, the present petition

has been filed seeking to set aside the order of the DRT dated

28.03.2025. It is submitted that the Hon'ble Apex Court had

only issued notice in the matter and no interim order/stay has

been granted. The Hon'ble Supreme Court has only taken

notice of the counsel's submission and has not provided any

reasoning or finding on the question raised. It is submitted that

there is no statutory provision prohibiting the learned Single

Judge of a High Court from hearing and passing orders in

matters, solely because a similar question is pending before the

Hon'ble Supreme Court, notwithstanding the decision of the

Division Bench of the same High Court on the same question. It

is submitted that the judicial discipline prescribes that the

learned Single judge follow the decision of the larger bench of

the same court, irrespective of pendency of similar question

before the Hon'ble Supreme Court where there is no interim

order or prohibitory order to decide the said question.
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     15. In this regard, learned counsel has relied on the

judgment of Hon'ble Apex court in case of Union Territory of

Ladakh and Others Vs. Jammu and Kashmir National

Conference and Others16. He has also relied on the judgment

of the Division Bench of this Court in case of Union of India

Vs. M/s. Johnson & Smith Co. and Others arising out of

W.A.No.7333/2000 dated 30.10.2012. For the same

proposition, he had relied on the judgment in case of

T.V.Sundaram Iyengar & Sons Ltd. and Another Vs. State

of Karnataka and Another17. It is submitted that the Division

Bench of this Court has laid down in Kailasam's case, that the

DRT does not have power to condone the delay in respect of

applications under Section 17 of the SARFAESI Act. This

decision has not been challenged before the Hon'ble Supreme

Court. It is submitted that only SLP has been preferred against

the decision of the learned single Judge of the High Court of

Kerala, where it is held that beyond 45 days the delay cannot

be condoned. In that, notice was issued and no stay has been

16
2023 SCC OnLine SC 1140
17
ILR 1999 Kar 1828
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granted. It is submitted that in the light of the law laid down by

the Division Bench, the writ petition needs to be dismissed.

  16. Having heard the learned Senior counsel for the

petitioner, the respective counsels for the respondents, perused

the entire material on record. In the light of the submissions

made on behalf of the parties, the issues that falls for

consideration before this Court is "whether the DRT has the

power to condone the delay by entertaining the

application filed under Section 5 of the Limitation Act",

"whether this Court can entertain and decide this writ

petition as the similar issue is pending consideration

before the Hon'ble Apex Court."

  17.    Before   considering      the      issue    with   regard    to

condonation of delay, it is appropriate to look at the Legislative

Intent behind enacting the SARFAESI Act. The whole purport of

the Act is to enable the banks and financial institution to

recover secured debts quickly without intervention of Civil

Courts, expeditious recovery of non-performing assets,

empowering secured creditors to enforce security interest,

reducing delay in recovery litigation and ultimately
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strengthening the banking system. The Hon'ble Apex Court in

case of Mardia Chemicals Ltd. referred supra had considered

the object of the SARFAESI Act and observed that it is to

provide a speedy remedy to secured creditors, while still

preserving the borrower's right to challenge the action before

the Tribunal. Hence, the whole purport of the act is for speedy

recovery of the amounts to the banking and financial

institutions.

  18. At this juncture, it is appropriate to have a look at [Sections 17](https://indiankanoon.org/doc/112742697/), [35](https://indiankanoon.org/doc/33076222/), [36](https://indiankanoon.org/doc/143985297/), [37](https://indiankanoon.org/doc/116137496/) of the SARFAESI Act and [Sections 5](https://indiankanoon.org/doc/100581/) and [29](https://indiankanoon.org/doc/372189/) of the Limitation Act which reads thus:

  " [Section 17](https://indiankanoon.org/doc/112742697/) of the SARFAESI Act

  17. [Application against measures to recover secured
  debts].--(1) Any person (including borrower),
  aggrieved by any of the measures referred to in sub-
  section (4) of [section 13](https://indiankanoon.org/doc/152603276/) taken by the secured
  creditor or his authorised officer under this
  Chapter,1[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 measure
  had been taken:

  [Provided that different fees may be prescribed for
  making the application by the borrower and the
  person other than the borrower.]

  [Explanation.--For the removal of doubts, it is hereby
  declared that the communication of the reasons to
  the borrower by the secured creditor for not having
  accepted his representation or objection or the likely
  action of the secured creditor at the stage of
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 communication of reasons to the borrower shall not
 entitle the person (including borrower) to make an
 application to the Debts Recovery Tribunal under this
 sub-section.]

  [(1A) An application under sub-section (1) shall be
 filed before the Debts Recovery Tribunal within the
 local limits of whose jurisdiction--

 (a) the cause of action, wholly or in part, arises;

 (b) where the secured asset is located; or

 (c) the branch or any other office of a bank or
 financial institution is maintaining an account in
 which debt claimed is outstanding for the time
 being.]

  [(2) The Debts Recovery Tribunal shall consider
 whether any of the measures referred to in sub-
 section (4) of [section 13](https://indiankanoon.org/doc/152603276/) taken by the secured
 creditor for enforcement of security are in accordance
 with the provisions of this Act and the rules made
 thereunder.

 [(3) If, the Debts Recovery Tribunal, after examining
 the facts and circumstances of the case and evidence
 produced by the parties, comes to the conclusion that
 any of the measures referred to in sub-section (4) of [section 13](https://indiankanoon.org/doc/152603276/), taken by the secured creditor are not in
 accordance with the provisions of this Act and the
 rules made thereunder, and require restoration of the
 management or restoration of possession, of the
 secured assets to the borrower or other aggrieved
 person, it may, by order,--

 (a) declare the recourse to any one or more
 measures referred to in sub-section (4) of [section 13](https://indiankanoon.org/doc/152603276/) taken by the secured creditor as invalid; and

 (b) restore the possession of secured assets or
 management of secured assets to the borrower or
 such other aggrieved person, who has made an
 application under sub-section (1), as the case may
 be; and

 (c) pass such other direction as it may consider
 appropriate and necessary in relation to any of the
 recourse taken by the secured creditor under sub-
 section (4) of [section 13](https://indiankanoon.org/doc/152603276/).]

 (4) If, the Debts Recovery Tribunal declares the
 recourse taken by a secured creditor under sub-
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 section (4) of [section 13](https://indiankanoon.org/doc/152603276/), is in accordance with the
 provisions of this Act and the rules made thereunder,
 then, notwithstanding anything contained in any
 other law for the time being in force, the secured
 creditor shall be entitled to take recourse to one or
 more of the measures specified under sub-section (4)
 of [section 13](https://indiankanoon.org/doc/152603276/) to recover his secured debt.

 [(4A) Where--

 (i) any person, in an application under sub-section
 (1), claims any tenancy or leasehold rights upon the
 secured asset, the Debt Recovery Tribunal, after
 examining the facts of the case and evidence
 produced by the parties in relation to such claims
 shall, for the purposes of enforcement of security
 interest, have the jurisdiction to examine whether
 lease or tenancy,--

 (a) has expired or stood determined; or

 (b) is contrary to [section 65A](https://indiankanoon.org/doc/1749243/) of the Transfer of
 Property Act, 1882 (4 of 1882); or

 (c) is contrary to terms of mortgage; or

 (d) is created after the issuance of notice of default
 and demand by the Bank under sub-section (2) of [section 13](https://indiankanoon.org/doc/152603276/) of the Act; and

 (ii) the Debt Recovery Tribunal is satisfied that
 tenancy right or leasehold rights claimed in secured
 asset falls under the sub-clause (a) or sub-clause (b)
 or sub-clause (c) or sub-clause (d) of clause (i), then
 notwithstanding anything to the contrary contained
 in any other law for the time being in force, the Debt
 Recovery Tribunal may pass such order as it deems
 fit in accordance with the provisions of this Act.]

 (5) Any application made under sub-section (1) shall
 be dealt with by the Debts Recovery Tribunal as
 expeditiously as possible and disposed of within sixty
 days from the date of such application:

 Provided that the Debts Recovery Tribunal may, from
 time to time, extend the said period for reasons to be
 recorded in writing, so, however, that the total period
 of pendency of the application with the Debts
 Recovery Tribunal, shall not exceed four months from
 the date of making of such application made under
 sub-section (1).
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 (6) If the application is not disposed of by the Debts
 Recovery Tribunal within the period of four months
 as specified in sub-section (5), any part to the
 application may make an application, in such form as
 may be prescribed, to the Appellate Tribunal for
 directing the Debts Recovery Tribunal for expeditious
 disposal of the application pending before the Debts
 Recovery Tribunal and the Appellate Tribunal may, on
 such application, make an order for expeditious
 disposal of the pending application by the Debts
 Recovery Tribunal.

 (7) Save as otherwise provided in this Act, the Debts
 Recovery Tribunal shall, as far as may be, dispose of
 the application in accordance with the provisions of
 the [Recovery of Debts Due to Banks and Financial
 Institutions Act, 1993](https://indiankanoon.org/doc/1683455/) (51 of 1993) and the rules
 made thereunder.]" [Section 35](https://indiankanoon.org/doc/33076222/) of the SARFAESI Act

 The provisions of this Act to override other laws.--
 The provisions of this Act shall have effect,
 notwithstanding anything inconsistent therewith
 contained in any other law for the time being in force
 or any instrument having effect by virtue of any such
 law. [Section 36](https://indiankanoon.org/doc/143985297/) of the SARFAESI Act

 Limitation.--No secured creditor shall be entitled to
 take all or any of the measures under sub-section (4)
 of [section 13](https://indiankanoon.org/doc/152603276/), unless his claim in respect of the
 financial asset is made within the period of limitation
 prescribed under the [Limitation Act, 1963](https://indiankanoon.org/doc/1317393/) (36 of
 1963). [Section 37](https://indiankanoon.org/doc/116137496/) of the SARFAESI Act

 Application of other laws not 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](https://indiankanoon.org/doc/1353758/) (1 of 1956), the SecuritiesContracts
 (Regulation) Act, 1956 (42 of 1956), the [Securities
 and Exchange Board of India Act, 1992](https://indiankanoon.org/doc/1365176/) (15 of 1992),
 the [Recovery of Debts Due to Banks and Financial
 Institutions Act, 1993](https://indiankanoon.org/doc/1683455/) (51 of 1993) or any other law
 for the time being in force.
                            - 24 -
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HC-KAR Section 5 of the Limitation Act

 Extension of prescribed period in certain cases.--Any
 appeal or any application, other than an application
 under any of the provisions of [Order XXI of the Code
 of Civil Procedure](https://indiankanoon.org/doc/161831507/), 1908 (5 of 1908), may be
 admitted after the prescribed period if the appellant
 or the applicant satisfies the court that he had
 sufficient cause for not preferring the appeal or
 making the application within such period. [Section 29](https://indiankanoon.org/doc/372189/) of the Limitation Act

 Savings.--(1) Nothing in this Act shall affect [section
 25](https://indiankanoon.org/doc/1903729/) 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](https://indiankanoon.org/doc/145523748/) 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](https://indiankanoon.org/doc/20781376/) to [24 (inclusive)](https://indiankanoon.org/doc/41629693/) 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](https://indiankanoon.org/doc/81153242/) and [26](https://indiankanoon.org/doc/54131328/) and the definition of
 "easement" in [section 2](https://indiankanoon.org/doc/93577912/) shall not apply to cases
 arising in the territories to which the [Indian
 Easements Act, 1882](https://indiankanoon.org/doc/82950642/) (5 of 1882), may for the time
 being extend."

 19. The party who is aggrieved by the measure taken by

the Bank can approach the Debts Recovery Tribunal under Section 17 of the Act. The words employed in Section 17(1) of

the Act are that the aggrieved party can make an application
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within 45 days from the date on which such measures had been

taken. The words used "within forty five days" shows that the

statute is silent on extension of time. In those circumstances, it

has to be presumed as mandatory. The Act is a complete code

in itself, the application of the Limitation Act is not automatic. Section 18 of the Act which deals with the appeal to the DRAT

contains express provision for condonation of delay, whereas Section 17 of the SARFAESI Act is silent. The legal maxim

"expressio unius est exclusio alterius" i.e., express mention of

one implies exclusion of another applies in this case. It clearly

demonstrates what is the intention of the legislature,

legislature consciously granted the power to condone the delay

under Section 18 of the Act, but not under Section 17 of the

Act. The omission is deliberate, meaningful and in the pursuit of

speedy recovery of debts to financial institutions. [Section 29

(2)](https://indiankanoon.org/doc/1648955/) of the Limitation Act envisages that Section 5 of the

Limitation Act applies unless it is expressly excluded by special

or local law. When it comes to Section 17 of the SARFAESI Act,

though it is not express exclusion but it is by way of implied

exclusion by clearly mentioning the rigid time limit of 45 days

and not giving any room for extension of time. The expression
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within forty five days is not an incidental expression, it is a

deliberate legislative command.

  20. [Section 29(2)](https://indiankanoon.org/doc/1648955/) of the Limitation Act says that if a

special law prescribes its own limitation, the Limitation Act applies only if not expressly or impliedly excluded. In the light

of the language employed in Section 18 of the SARFAESI Act

which is conspicuously absent in Section 17 of the Act, it is

clear case of implied exclusion of Section 5 of the Limitation Act

and satisfies the test of necessary implication. The Courts have

to adopt the purposive construction while interpreting the

provisions of the Act which advances the object of the Act,

another contrary interpretation will not serve the legislative

intent. The Debt Recovery Tribunal is a creature of statute, the

Tribunal cannot assume powers which are not expressly

conferred upon it by the legislation. By fixing the time limit of

45 days, there is an implied exclusion of the provisions of the Limitation Act. When the intention of the legislature is evident,

it is impermissible for the Courts to supplement its view by

introducing words which are not used by the legislature. The

role of the Courts is to interpret law, but not to legislate under
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the guise of interpretation. The intention of the legislature

prevails over literal or equitable considerations.

  21.   It   is   the   general      argument   that   procedural

laws/provisions should be liberally construed, delay should be

condoned in the interest of justice. This would not apply in

cases where the provision speaks in clear terms and it is

designed for a strict frame work and with an avowed object to

be achieved. The legislative intent underlined under Section 17 of the SARFAESI Act is to provide a non extendable limitation

period of 45 days and any interpretation and applying Section 5 of the Limitation Act is nothing but acting contrary to the

purport of the SARFAESI Act and same is impermissible. When

it comes to the appeal, the position is slightly different. The

Hon'ble Apex court in Baleshwar Dayal's case referred supra

held that DRT may condone the delay in appropriate cases. But

the power is limited discretion.

  22. Learned Senior counsel appearing for the petitioner

submits that in the light of the law laid down in Baleshwar

Dayal's case, it applies to Section 17 of the SARFAESI Act also.

That contention of the learned Senior Counsel is liable to be
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rejected for the reason that Baleshwar Dayal's case is with

regard to the appeal provision, but the proceedings under Section 17 of the SARFAESI Act are in the nature of original

suit. Hence, same analogy cannot be applied to the original

proceedings.

 23. The Division Bench of this Court in Kailasam's case

referred supra had considered the judgment of the Hon'ble

Apex Court in Baleshwar Dayal's case referred supra and held

that Section 5 of the Limitation Act will not apply. The relevant

paragraphs of the judgment are paragraph Nos.4.2 and 4.6

which reads thus:

 "4.2. The above view gains support from the Apex Court
 decision in BANK OF BARODA vs. M/S.PARASAADILAL
 TURSIRAM SHEETGRAH PVT. LTD.. In more or less
 similar facts the borrowers had approached the DRT by
 invoking [Sec.17](https://indiankanoon.org/doc/112742697/) of 2002 Act. "...DRT dismissed the [Sec.17](https://indiankanoon.org/doc/112742697/) application on the ground that it was filed
 beyond the statutory period of limitation of 45 days...
 The above referred order was challenged in review. The
 DRT by its order dated 08.08.2016 allowed the review...
 It is rather strange that the DRT not only entertained
 the Review Petition, but has allowed the same... The
 order in review was challenged before the DRAT, which
 found no difficulty in allowing the appeal on the ground
 that there was never been an error apparent on the face
 of record for exercising the review jurisdiction...". At
 para 12 the Apex Court has further observed as under:

     "The reason for providing a time limit of 45 days for
     filing an application [u/s.17](https://indiankanoon.org/doc/112742697/) can easily be inferred
     from the purpose and object of the enactment. In
     TRANSCORE vs. UNION OF INDIA & ANOTHER this
     court held that the [SARFAESI Act](https://indiankanoon.org/doc/52229129/) is enacted for
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      quick enforcement of the security. It is unfortunate
      that proceedings where a property that has been
      brought to sale and third party rights created under
      the   provisions   of   the   Act,  have   remained
      inconclusive even after a decade."

  4.6. Learned Counsel for the Petitioner Mr. Manu
  Kulkarni in support of his contention banks upon the
  Apex Court decision in BALESHWAR DAYAL JAISWAL vs.
  BANK OF INDIA, to contend that DRT has power to
  condone delay because [Section 17(7)](https://indiankanoon.org/doc/96197665/) is pari materia to [Section 18(2)](https://indiankanoon.org/doc/104798985/) of the SARFAESI Act. The subject matter
  of this case involved [Section 18](https://indiankanoon.org/doc/11945171/) and not [Section 17](https://indiankanoon.org/doc/112742697/).
  Since the Privy Council days, if not before, difference is
  maintained between institution of original proceedings
  and that of appellate proceedings; proceedings [u/s 17](https://indiankanoon.org/doc/112742697/) of the Act belong to the class of former whereas those
  u/s 18 pertain to the class of latter. This position is
  fairly admitted at the Bar. It hardly needs to be
  reiterated that a decision is an authority for the
  proposition it lays down in a given fact matrix and not
  for all that, that would logically follow from what has
  been so laid down vide Lord Halsbury in QUINN vs.
  LEATHEM. Added, when a special legislation grants a
  right of action subject to certain conditions and creates
  a Forum for its effectuation, that right becomes
  exercisable on satisfying such conditions, and not
  otherwise. Limitation period is one such condition. After
  all, judiciary being a branch of the State, has to show
  due deference to the decisions of co-ordinate branches
  i.e,. legislations. This is founded on the doctrine of
  separation of powers which is held to be a Basic Feature
  of the Constitution vide KESAVANANDA BHARTI vs.
  STATE OF KERALA."

  24. In the light of the Division Bench judgment which is a

binding precedent on this Court, the contention of the petitioner

is liable to be rejected.

  25. The other submission made by the Senior counsel is

that the Hon'ble Apex Court had seized of the matter with

regard to condonation of delay, as such, the judicial discipline
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demands that the Courts have to wait till the authoritative

pronouncement is made by the Hon'ble Apex Court. This Court

is not able to appreciate this submission also. The Hon'ble Apex

Court has issued notice and no interim order is granted. In

these circumstances, there is no bar for this Court to entertain

this writ petition and particularly in the light of the order

passed by the Division Bench of this Court.

   26. In the light of the above discussion, this Court comes

to the irresistible conclusion that Section 5 of the Limitation Act

has no application and the Tribunal has no power to condone

the delay in an application filed under Section 17 of the

SARFAESI Act. Both the issues are held against the petitioner.

Hence, this Court is passing the following order:

                           ORDER i. Accordingly, the writ petition is dismissed.

ii. All I.As. in this petition shall stand closed.

SD/-

(LALITHA KANNEGANTI)
JUDGE
MEG, List No.: 1 Sl No.: 2