Very useful to those facing actions under SARFAESI Act. Well done Mr.Ramachary.
It is agreed that DRT is quasi judicial authority. The powers of A.O. are neither ministerial nor administrative in nature. They are executory in nature. That is demand notice is executed after expiry of statutory period of 60 days u/s 13(2) of the Act. Scope of Sec. 17 is not Review power. It is the power of judicial scrutiny conferred to DRT to scrutinize the tenability of the action taken by the A.O. Judicial scrutiny is different from the 're view' power as DRT is not reviewing A.O's action u/s.17 of the Act. It is only judicial scrutiny and nothing more than that. DRT can exercise it's own order only in case an order is passed by it u/s.17 of the Act. The intention of Parliament is clear that it has conferred power to DRT only to scrutinize the action taken u/s 13 of the Act. Sec. 17 application is not an appeal as wrongly worded in the 'margin note' in the Act as clarified by the Supreme Court. Sec. 5 of Limitation Act is applicable to Sec. 17 proceedings as it makes very clear that it is applicable to the judicial proceedings whether such proceedings are of first instance or next instance i.e. appeal u/s 18 of the Act. Sec.17 proceedings can never be called review of A.O.s. action as A.O. is lower in pedestal compared to DRT and is answerable to DRT if the validity of the action of A.O. is impugned by any person including borrower.
Let us view this way:
1. DRT is a quasi Judicial Authority
2. Authorised officer is exercising his powers under section 13. Is it agreed that his powers are ministerial in nature and not administrative in nature.
3. Scope of section 17 is “Review” of measures taken by the Authorised officer.
4. In fact it is a “Review” of correctness of measures taken by the Authorised officer. It is not a judicial review of an administrative action.
5. Parliament has intended the review to be by way of an appeal.
6. Scope of section 5 of Limitation is only in respect of Appeal or Application.
7. Is section 5 applicable for review jurisdiction?
Dear Mr. Narendra.s.p.
Thank you for your views on the Article. DRT exercises original jurisdiction under Sec.17 of the SARFAESI Act. Authorised Officer is not a quasi judicial officer nor he conducts any proceedings nor passes any interim order but he is an officer clothed with statutory power to perform action under the Act. DRT need not be treated as appellate authority merely because it has to entertain application u/s 5 of Limitation Act. The point which revolves around the issue is whether SARFAESI Act specifically excluded application of Sec.5 of Limitation Act. Sec.29(2) of Limitation Act squarely covers Sec.5. However condonation of delay depends upon the facts and circumstances the borrower or any third party aggrieved by the action under the Act establish satisfactory grounds/causes for such delay and not mechanical exercise of powers.
The issue is complicated by various judgments of different high courts. Appeal or application or petition or proceeding or otherwise except suit or proceeding in the nature of suit s. 5 is applicable
to all judicial and quasi-judicial other than execution unless prescribed specifically and this was the position from 1963 when Limitation Act came into existence as interpreted by Supreme Court. Litigation has become like political gambling .
The basic question is :Whether DRT exercises appellate or original jurisdiction under section 17? The Authorised Officer is a quasi judicial officer, any person aggrieved by the action of Authorised Officer has a remedy under section 17 before DRT, so DRT may be treated as an appellate Authority in this regard.
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