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Kanji Manji Kothari and Co. and Vs. Uco Bank - Court Judgment

LegalCrystal Citation
CourtDRAT Mumbai
Decided On
Judge
Reported inI(2008)BC91
AppellantKanji Manji Kothari and Co. and
RespondentUco Bank
Excerpt:
.....order dated 8th (sic) 2006 passed by the in-charge presiding officer, d.r.t.-i, mumbai rejecting appeal/application filed under section 17 of the securitisation and reconstruction of financial assets and enforcement of security interest act, 2002 (hereinafter referred to as the srfaesi act) on the ground of limitation. the following facts are undisputed.2. one notice dated 7th april, 2005 under section 13(2) of the srfaesi act was served on the appellants by one branch of the respondent bank and other notice dated 11th june, 2005 was served on the appellants by another branch of the respondent bank in respect of the other account.a symbolic possession of the property in question was taken on 15th july, 2005 but the actual possession of the property was taken by the respondent bank on.....
Judgment:
1. This appeal is filed challenging order dated 8th (sic) 2006 passed by the In-charge Presiding Officer, D.R.T.-I, Mumbai rejecting appeal/application filed under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SRFAESI Act) on the ground of limitation. The following facts are undisputed.

2. One notice dated 7th April, 2005 under Section 13(2) of the SRFAESI Act was served on the appellants by one branch of the respondent Bank and other notice dated 11th June, 2005 was served on the appellants by another branch of the respondent Bank in respect of the other account.

A symbolic possession of the property in question was taken on 15th July, 2005 but the actual possession of the property was taken by the respondent Bank on 13th March, 2006 and the appeal/ application under Section 17 of the SRFAESI Act was filed before the D.R.T. on 10th April, 2006.

3. It is contended on behalf of the respondent Bank that period of limitation of 45 days for filing an application/appeal under Section 17 of the SRFAESI Act is applicable from the date on which the symbolic possession of the property is taken and since symbolic possession of the property was taken on 15th July, 2005 the application filed on 10th April, 2006 was time-barred.

4. Section 13(4) of the SRFAESI Act prescribes various measures which can be taken by a secured creditor. The first measure mentioned in Section 13(4)(a) is to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset. In my view the possession contemplated under Section 13(4)(a) of the SRFAESI Act cannot be other than the actual possession i.e. physical possession of the property. As per Section 17 of the SRFAESI Act any person aggrieved by any of the measures referred to in Sub-clause (4) of Section 13 of the SRFAESI Act taken by the secured creditor may make an application to the D.R.T. In other words, the borrower may be aggrieved by any one of the measures and, therefore, he may take action under Section 17 of the SRFAESI Act against any one measure taken under Section 13(4) of the SRFAESI Act.

The borrower may not be aggrieved by issuance of a notice under Section 13(2) of the SRFAESI Act or taking symbolic possession by the Bank but the borrower is really likely to be aggrieved if the actual/physical possession of the secured property is taken by the Bank as in that case the borrower is dispossessed from his property. An effective action can be taken by a secured creditor only after the actual or physical possession of the secured property is taken. Therefore, the borrower has a right to file an appeal/application under Section 17 of the SRFAESI Act within 45 days from the date of taking actual/physical possession of the property by the Bank. Reliance placed on Rule 8 of the Security Interest (Enforcement) Rules, 2002 by the learned Advocate for the respondent Bank has no relevance at all for interpreting Sections 17 and 13(4) of the SRFAESI Act. The Presiding Officer was, therefore, clearly and patently in error in counting period of limitation from the date of taking symbolic possession of the, secured property.

5. In the result, the appeal is allowed with costs of Rs. 3,000/- payable by the respondent Bank to the appellants and the matter is remanded back to the D.R.T.-I for the disposal of the application/appeal being S.A. No. 29/2006, in accordance with law on merits.

5.1 Since the appeal is allowed the sum of Rs. 4.25 lacs deposited by the appellants under Section 18 of the SRFAESI Act in this Tribunal which is invested in the respondent Bank shall be refunded along with interest accrued thereon to the appellants.


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