Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
1. Heard the Learned Counsel for the parties and perused the record.
2. Instant appeal has arisen against judgment and order dated 11.10.2018, passed by Learned DRT-I, Hyderabad, dismissing S.A. 481 of 2014 (Farooq Ali -vs- Asrec (India) Limited & Others).
3. As per the pleadings of the parties, Appellant claims himself to be the share holder of the secured asset which was mortgaged with the Respondent Karur Vysya Bank now assigned to Respondent No. 1. He is neither a Borrower nor Guarantor. The scheduled property was purchased by the Appellant’s mother, who is the grandmother of Respondents No. 3 to 6. O.A. No. 1262 of 2003 was filed by the Appellant’s sister, Smt. Kaleeka Begum, for partition of the suit property and also filed a suit for specific performance. Both the suits were decreed. It is alleged that the secured assets are arising out of the ancestral property of the Appellant wherein no notice was issued to him. It appears that the scheduled assets were mortgaged by Respondents No. 3 to 6, namely, Syed Aftab Quadri, Smt Syed Roohi Shireen, Syed Youuf Quadri and Mrs. Syeda Shazi Shireen. Appellant came to know about the SARFAESI action undertaken by the Respondent No. 1 on 21.6.2014 when the Advocate Commissioner visited. Thereafter, application under Section 17 of the SARFAESI Act (hereinafter referred to as the Act) was filed on 2nd July, 2014.
4. Learned DRT, after hearing Learned Counsel for the parties, recorded a categorical finding that the SARFAESI Application is filed beyond the mandatory period of 45 days as the possession of the secured assets was taken by the Respondent on 10.10.2013. Hence, he was having knowledge of the SARFAESI action. Further certain findings regarding merits of the matter were also recorded.
5. Feeling aggrieved, the Appellant has preferred the instant appeal.
6. At the very outset, Learned Counsel for Appellant would submit that the appeal is filed well within time. Further, it is submitted that when the Learned DRT has arrived at a finding that the SARFAESI Application was filed beyond time then findings on merits of the matter should not have been arrived at.
7. Learned Counsel for Respondent would submit that the Appellant was knowing about the SARFAESI action initiated by the Respondent on 10.10.2013 hence, the application filed under Section 17 of the Act is time barred which was filed on 2nd July, 2014.
8. It is mandatory provision that application under Section 17 of the Act should be filed within 45 days from the date the cause of action arises. As per the possession notice dated 10.10.2013, Appellant was having knowledge of the SARFAESI action initiated by the Respondent No. 1 but Appellant has taken a plea that he came to know about the same on 21st June, 2014 but his source of knowledge is not mentioned or disclosed in the limitation clause. Accordingly, it could not be accepted that the Appellant came to know about the SARFAESI action by the Respondent on 21.6.2014; rather it was well within his knowledge from 10.10.2013.
9. It is further submitted that challenge is made to the order under Section 14 of the Act dated 15.4.2014. Even if that is taken into consideration, source of information on 21.6.2014 is not disclosed in the limitation clause.
10. Accordingly, I am of the considered opinion that application under Section 17 of the Act was time barred. Learned DRT rightly arrived at the conclusion. However, when the Learned DRT found the petition to be time barred, there was no requirement to give finding on the merits. I have also not gone into the merits of the matter. Accordingly, on the basis of the observations made in the body of the judgment, the appeal is liable to be dismissed.
ORDERED
Appeal is dismissed. The impugned judgment and order dated 11.10.2018, passed by Learned DRT-I, Hyderabad, dismissing S.A. 481 of 2014 (Farooq Ali -vs-Asrec (India) Limited & Others), is affirmed.
No order as to costs.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order signed, dated and pronounced in open Court.
