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2017 DIGILAW 1065 (JK)

Kash-Ind Agro Infra Services v. J&K Bank Ltd.

2017-12-15

M.K.HANJURA, R.SUDHAKAR

body2017
JUDGMENT : M.K. Hanjura, J. 1. In this petition filed under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir and Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, the petitioner-firm has assailed the order dated 13th November, 2017 of the learned Principal District Judge, Srinagar, vide which the learned Principal District Judge, Srinagar has dismissed the application for condonation of delay, filed along with the application under Section 17 read with Section 17-A of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in brevity, the SARFAESI Act). The facts as these emerge from the study of the petition of the petitioner are that the petitioner after following due procedure and process, was awarded two separate and different contracts by the respondent No. 3-Food Corporation of India (in short, the FCI) for construction of two godowns under the Private Entrepreneur Guarantee Scheme, 2008 (PEG Scheme), one with the capacity of 20,000 MTs and the other with a capacity of 15,000 MTs). The PEG Scheme, inter alia, provided that the godown shall be taken over by the FCI on lease for a fixed period often years. The Scheme and Policy of Government of India also provided fur 33% entitlement of the cost construction of godown under the PEG Scheme, 2008 for the projects to be undertaken in the State of Jammu and Kashmir. The petitioner-firm applied for an institutional credit facility under the PEG Scheme from respondent No. 1, the Jammu and Kashmir Bank, for the purpose of the construction of the godowns to be taken over by the FCI under the PEG Scheme. The account of the applicant firm was classified as non-performing asset (NPA). The respondents-Bank issued a notice to the petitioner firm under Section 13(2) of the SARFAESI Act, the relevant excerpts of which are as under:- "Now you are hereby called upon in terms of Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to discharge in full your liability towards the Bank and pay the said outstanding amount of Rs. 41,14,93,551.40 (Rupees forty one crores fourteen lakh ninety three thousand five hundred fifty one and paise forty only) with further interest thereon from 01.04.2017 at the agreed rate/s with monthly rests and costs and charges etc., within 60 days from the date of receipt of this Notice, failing which we shall be constrained to exercise all or any of the rights under Section 13(4) of the said Act against you and your above mentioned properties hypothecated/assigned and mortgaged as the primary and collateral securities for your said loan facilities." 2. This followed by a possession notice dated 19.06.2017 issued in terms of Section 13(4) of the SARFAESI Act, the auction notice dated 12.08.2017 & the sale notice promulgated on 11.08.2017. Subsequently on 06.10.2017, the Bank issued another Auction Notice bearing No. JKB/IAPM/SRFS/2017 in respect of two properties, more specifically detailed as Property-A and Property-B in the said notice. 3. The petitioners filed a Writ Petition bearing OWP No. 1345/2017 before this Court, which was subsequently dismissed as withdrawn vide order dated 21st September, 2017 with the liberty to file an application under Section 17-A of the SARFAESI Act. Thereafter, the petitioner firm filed an application on 04th October, 2017 before the learned Principal District Judge, Srinagar in terms of Section 17-A of the SARFAESI Act along with an application seeking condonation of delay. Thereafter, the petitioner firm filed an application on 04th October, 2017 before the learned Principal District Judge, Srinagar in terms of Section 17-A of the SARFAESI Act along with an application seeking condonation of delay. In the application, the petitioner-firm sought the indulgence of the Court in granting him the following reliefs:- "(i) That the applicants have filed application under Section 17-A of the Act seeking stay of operation and implementation of the impugned notices dated 06th April, 2017, under Section 13(2) of the Act, the possession notice dated 19th June, 2017 issued under Section 13(4) and auction notice dated 08th August, 2017 for being illegal, arbitrary and passed without jurisdiction and in contravention of provisions of the Act; (ii) That the applicants are not permanent residents of the place, where the secured assets are located and were not duly served with the required notices as per the mandate of law; (iii) That the applicant's case is based on firm grounds and against the impugned notices issued by the non-applicants the applicants filed a writ petition before the Hon'ble High Court bearing OWP No. 1345/2017 and Hon'ble High Court vide order dated 21st September, 2017, was pleased to grant liberty to the applicants to approach this Court and due to aforesaid reason, delay as caused in challenging the impugned notices issued by the non-applicants and delay is purely technical in nature; (iv) That the applicant approached the higher ups of Bank, who assured that the matter will be amicably resolved, but the same did not take place. (v) The petitioner-firm prays before the Court that delay in filing the petition under Section 17-A of the aforesaid Act be condoned. 4. Heard and considered. 5. It needs must be said at the very outset that the learned Principal District Judge, Srinagar accorded consideration to the application of the petitioners-firm and dismissed the same vide order dated 13th November, 2017 primarily, on the ground that it is barred by time. In this context, the relevant extracts of the order of the Principal District Judge, Srinagar require to be evaluated and analyzed. In this context, the relevant extracts of the order of the Principal District Judge, Srinagar require to be evaluated and analyzed. The learned Principal District Judge, Srinagar after taking note of the facts and the law relevant to the case came to the following conclusion:- "Section 17 of the Act permits an application to be filed by person aggrieved of any of the measures referred in Sub-Section 4 of Section 13 to the Debt Recovery Tribunal. Section 13(4) enables the secured creditors to take recourse to measures indicated therein in case the borrower fails to discharge his liability in full within period prescribed under Sub-Section 2. In the State of Jammu and Kashmir, however, the application is to be made to Court of District Judge having jurisdiction over the borrower. It is, thus, to be seen whether the application for condonation of delay in preferring the application under Section 17(1)/17(A) of the Act beyond the period of 45 days prescribed can be allowed by exercising powers under Section 5 of the Limitation Act. For this provisions of Sections 17, 35, 26 and 37 of the Act and Sections 20 and 23 of the RDB Act and Section 29 of the Limitation Act are required to be kept in view. Under Section 24 of RDB Act, the provisions of Limitation Act shall as far as may apply to an application to be made to the Tribunal. The conjoint reading of Section 17(7) of the Act and Section 24 RDB Act is that in proceedings under Section 17(1) of the Act, which is entertained by Debt Recovery Tribunal, the provisions of Limitation Act as far as have to be applied. Nonetheless, Section 17 of the Act described as one conferring right of appeal, in that era prior to its amendment in 2016 the proceedings under Section 17 of the Act are not appellate proceedings as also held by Hon'ble Apex Court in case title, "Mardia Chemicals and M/s. Transcore v. Union of India and Anr.". The Hon'ble Apex Court enunciated that in terms of Section 17, initial action is brought before a forum prescribed under the Act raising grievances against the action of measures taken by one of the parties to the contract, therefore, according to Hon'ble Supreme Court, it is the stage of initial proceedings like filing a suit in civil. Court. The Hon'ble Apex Court enunciated that in terms of Section 17, initial action is brought before a forum prescribed under the Act raising grievances against the action of measures taken by one of the parties to the contract, therefore, according to Hon'ble Supreme Court, it is the stage of initial proceedings like filing a suit in civil. Court. The Hon'ble Court also pointed out that the remedy under Section 17 of the Act is as a substitute to civil suit, which otherwise can ordinarily be applicable, if there would have been no bar under Section 34 of the Act. It was after the decision of the Hon'ble Supreme Court in the case of Mardia Chemicals (supra) that the Act was amended and word 'appeal' replaced by word 'application'" 6. Section 17 of the SARFAESI Act runs under the head "Right to Appeal." It provides that any person (including borrower,) aggrieved by any of the measures referred to in Sub-Section 4 of Section 13 taken by the secured creditor or is authorized officer under this chapter, (may make an application along with such fee, as may be prescribed) to the Debt Recovery Tribunal having jurisdiction in the matter within 45 days from the date, on which the such measures had been taken with the rider that different fees may be prescribed for making the application by the borrower and the person other than the borrower. An explanation added to the Section provides that 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 the communication of the reasons to the borrowers shall not entitle the person (including borrower) to make an application to the Debt Recovery Tribunal under Sub-Section (1) of Section 17. The section inter alia directs that save as, otherwise provided in this Act, the Debt Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made there under. 7. The section inter alia directs that save as, otherwise provided in this Act, the Debt Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made there under. 7. Section 17-A which is also of essence herein this petition imparts that in the case of a borrower residing in the State of Jammu and Kashmir, the application under section 17 shall be made to the Court of District Judge in that State having jurisdiction over the borrower which shall pass an order on such application. The explanation added to the section reads that 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 communication of reasons shall not entitle the person (including borrower) to make an application to the Court of District Judge under this section. 8. The law is that the purpose of serving a notice upon the borrower under Section 13(2) of the Act is that a reply may be submitted by him explaining the reasons as to why measures may or may not be taken under section 13(4) in case of noncompliance with notice within 60 days. The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to the notice. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures under Section 13(4) of the Act. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures under Section 13(4) of the Act. Once a duty to meaningfully consider the objections raised by the borrower in reply to a notice under S. 13(2) is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures under Section 13(4), especially, since, till the stage of making of the demand and notice under Section 13(2) of the Act, no hearing can be claimed by the borrower. A person in respect of whom steps under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reason of non-acceptance and office objections. Communications of reasons not to accept the objections of the borrower would certainly be for the purpose of his knowledge which would be a step forward towards his right to know why his objections have not been accepted by the secured creditors who intend to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court and would certainly provide guidance to secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained under Section 13(4). It will only be a fulfillment of a requirement of reasonableness and fairness in the dealings institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. 9. It will only be a fulfillment of a requirement of reasonableness and fairness in the dealings institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. 9. The question that arises for consideration here in this case is whether the period prescribed for filing the application before the Court of District Judge, Srinagar, exercising the powers of the Debt Recovery Tribunal in the State of Jammu and Kashmir in terms of Section 17-A of the SARFAESI Act has to be restricted to 45 days from the date, on which any of the measures referred to in Section 17 of the SARFAESI Act have been taken or that this period can be extended further on the strength of Section 5 of the Limitation Act. 10. The Principal District Judge, Srinagar has answered this question in negative, as according to him, the application under section 17 of the SARFAESI Act had to be filed by the petitioner-firm within a period of 45 days, which cannot be extended further. Learned counsel for the petitioner has placed reliance on the law laid down by the Apex Court in case titled "Baleshwar Dayal Jaiswal v. Bank of India and Ors., reported in (2016) 1 SCC 444 to answer this puzzle. Paragraph Nos. 7, 8 and 9 of the judgment, which according to the learned counsel assume significance in the context of the decision of this petition and these are reproduced below:- 7. The first point for consideration is the applicability of proviso to Section 20(3) of the RDDB Act to the disposal of an appeal by the Appellate Tribunal under Section 18(2) of the SARFAESI Act. A bare perusal of the said Section 18(2) makes it clear that the Appellate Tribunal under the SARFAESI Act has to dispose of an appeal in accordance with the provisions of the RDDB Act. In this respect, the provisions of the RDDB Act stand incorporated in the SARFAESI Act for disposal of an appeal. Once it is HO, we are unable to discern any reason as to why the SARFAESI Appellate Tribunal cannot entertain an appeal beyond the prescribed period even on being satisfied that there is sufficient cause for not filing such appeal within that period. Once it is HO, we are unable to discern any reason as to why the SARFAESI Appellate Tribunal cannot entertain an appeal beyond the prescribed period even on being satisfied that there is sufficient cause for not filing such appeal within that period. Even if power of condonation of delay by virtue of Section 29(2) of the Limitation Act were held not to be applicable, the proviso to Section 20(3) of the RDDB Act is applicable by virtue of Section 18(2) of the SARFAESI Act. This interpretation is clearly borne out from the provisions of the two statutes and also advances the cause of justice. Unless the scheme of the statute expressly excludes the power of condonation, there is no reason to deny such power to a Appellate Tribunal when the statutory scheme so warrants. Principle of legislation by incorporation is well known and has been applied, inter alia, in Ram Kirpal Bhagat v. The State of Bihar, Bolani Ors. Ltd. v. State of Orissa. Mahindra and Mahindra Ltd. v. Union of India and Onkarlal Nandlal v. State of Rajasthan relied upon on behalf of the appellants. We have thus no hesitation in holding that the Appellate Tribunal under the SARFAESI Act has the power to condone the delay in filing an appeal before it by virtue of Section 18(2) SARFAESI Act and the proviso to Section 20(3) of the RDDB Act. 8. The fact that RDDB Act and the SARFAESI Act are complementary to each other, as held by this Court in Transcore v. Union of India, also supports this view. 9. We may now deal with the conflicting views of the High Courts on the subject. The Madhya Pradesh High Court has held that the power of condonation of delay stood excluded by principle of interpretation that if a later statute has provided for shorter period of limitation without express provision for condonation, it could be implied that there was no power of condonation. Reliance has been placed on principles of statutory interpretation by Justice G.P. Singh, 12th Edition, 2010, page 310. It was further observed that the Limitation Act was made applicable to a Tribunal under Section 24 of the RDDB Act, but there was no similar provision with respect to the Appellate Tribunal. To justify such an inference, reliance has also been placed on Gopal Sardar case and Fairgrowth Investments Ltd. v. The Custodian. It was further observed that the Limitation Act was made applicable to a Tribunal under Section 24 of the RDDB Act, but there was no similar provision with respect to the Appellate Tribunal. To justify such an inference, reliance has also been placed on Gopal Sardar case and Fairgrowth Investments Ltd. v. The Custodian. It was further observed that the object of SARFAESI Act was to ensure speedy recovery of the dues and quicker resolution of disputes arising out of action taken for recovery of such dues. We find the approach to be erroneous and incorrect understanding of the principle of interpretation which has been relied upon. The principle discussed in the celebrated Treatise in question is as follows: "When an amending Act alters the language of the principal statue, the alteration must be taken to have been made deliberately." Learned counsel for the petitioner has further argued that the law laid down in the case of Ponnusamy and Smt. P. Shanthi v. The Debts Recovery Tribunal, 2009 (2) CTC 302 , covers a situation where Section 5 of the Limitation Act has been made applicable to the application under Section 17(1) of the SARFAESI Act. He has placed reliance on para 20 of the judgment (supra), which reads as under:- "Coming to Section 17, sub-section (1) entitles a person to appeal to the Tribunal against any of the measures referred to in Section 13(4). By the use of the expression "aggrieved by any of the measures", Section 17(1) makes it clear that the measures contemplated under Section 13(4) provide continuity to the cause of action, which is why, the Division Bench of this Court took the view as it did in IOB case CDJ 2008 MHC 736, referred to earlier. Section 17 is silent about the precise moment at which the period of limitation would start running, though it is common knowledge that the closing point may be the date of sale. At the same time, there is also no outer time limit prescribed under Section 17 for the Tribunal to condone the delay. There are a few enactments where not only the period of limitation is prescribed, but also the power to condone the delay is restricted by a further time limit. For example, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes a period of limitation for filing a revision under Section 25(2). There are a few enactments where not only the period of limitation is prescribed, but also the power to condone the delay is restricted by a further time limit. For example, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes a period of limitation for filing a revision under Section 25(2). The proviso under Section 25(2) enables the High Court to allow a further period of time, if sufficient cause is shown. Such a prescription can be taken to be an indication of the intention of the legislature to exclude the application of Section 5 of the Limitation Act. But the SARFAESI Act contains no such indication. On the contrary, sub-section (7) of Section 17 makes the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 applicable to the Debts Recovery Tribunal while dealing with an application under Section 17 of the SARFAESI Act. Section 24 of the 1993 Act makes it clear that the provisions of the Limitation Act, 1963 shall apply to an application made to a Tribunal. Therefore, far from indicating an "exclusion by necessary implication", the SARFAESI Act actually provides an "inclusion by necessary implication". Hence the decision in Fairgrowth case, is of no assistance to the learned counsel for the Bank. 11. Per contra, learned counsel for the respondent-bank has stated that an application under Section 17 read with section 17-A of the SARFAESI Act has the lineage and strips of a suit and therefore, Section 5 of the Limitation Act has no application to the facts and circumstances of the case and as a sequel thereto the application had to be filed by the petitioner within a period of 45 days as provided under Section 17 r/w Section 17-A of the SARFAESI Act, and since this has not been done, the petitioner is liable to be dismissed on that score alone. To canvass his arguments, the learned counsel for the respondents has placed explicit reliance on the judgment of law delivered by a bench of three Hon'ble Judges in the case of Mardia Chemicals Ltd. And others v. Union of India and others, reported in (2004) 4 SCC 311 , Paras 59, 62 & 76 of which have an important bearing on the decision of the petition on hand and these read as follows:- 59. We may like to observe that proceedings under Section 17 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 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in (1974) 2 SCC p. 393 Smt. Ganga Bai v. Vijay Kumar and Ors. Where in respect of original and appellate proceedings a distinction has been drawn as follows:- "......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 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." 62. As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act. 76. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act. 76. In regard to the submission made by the parties as indicated in preceding paragraphs, we would like to make it clear that issue of a notice to the debtor by the creditor does not attract the application of principles of natural justice. It is always open to tell the debtor what he owes to repay. No hearing can be demanded from the creditor at this stage. So far the provision of appeal is concerned, we have already discussed in the earlier part of the judgment that proceedings under Section 17 of the Act have been wrongly described as appeal before the Debt Recovery Tribunal. It is in fact a forum where proceedings are originally initiated in case of any grievance against the creditor in respect of any measure taken under sub-section (4) of Section 13 of the Act. Hence, the decisions on the point as to whether provision for an appeal is essential or not are not of any assistance in the facts of the present case. 12. The Apex Court of the Country after taking a cue from the law laid down in the case of Mardia Chemicals cited above repeated and reiterated the principle enunciated therein in the case of M/s. Transcore v. Union of India and Anr. reported in (2008) 1 SCC 125 by holding that the remedy under Section 17 of the SARFAESI Act is an original remedy and not an appellate one. 13. On the scales of law laid down above, the learned District Judge appears to have rightly concluded that the proceedings under Section 17 of the SARFAESI Act are of the nature of original proceedings and in such a case although some provisions of the Limitations Act may apply, yet Section 5 shall have no application. 13. On the scales of law laid down above, the learned District Judge appears to have rightly concluded that the proceedings under Section 17 of the SARFAESI Act are of the nature of original proceedings and in such a case although some provisions of the Limitations Act may apply, yet Section 5 shall have no application. The learned District Judge has also relied on the dictum of law delivered by the Apex Court in case titled Gopal Sardar v. Karuna Sardar reported in 2004 (4) SCC 252 where the Hon'ble court while relying upon the Division Bench decision of Calcutta High Court in the case of Serish Maji v. Nishit Kumar Doloi held that a proceeding initiated on application under Section 8 of West Bengal Land Reforms Act is to be construed as a suit for the purposes of Limitation Act and applying the said principle the proceedings under Section 17 of the SARFAESI Act should be deemed to be a suit. The following observations of the Hon'ble Apex Court are relevant:- "The Division Bench of Calcutta High Court in Serish Maji case after elaborate consideration, referring to various decisions and on analysis-of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is to be construed as a 'suit' for the purposes of Limitation Act. We have good reason to approve the said view. This being the position, section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act. It may also be proper to state here that an application referred under Limitation Act does not initiate an action. There is clear cut difference between the suits and applications of which reference is found in the Limitation Act. Section 14 of Limitation Act grants exclusion of time in filing the suits in certain cases when the same matter is in issue or prosecuted in good faith in a court which from defect of jurisdiction is unable to entertain it. The suit is entertained as an independent proceedings which may be initiated for final determination of the issue or issues of fact and law. The suit is entertained as an independent proceedings which may be initiated for final determination of the issue or issues of fact and law. The word "suit" as interpreted by their Lordships in Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Chatge reported as 1989 Suppl (2) SCC 627 is understood to apply to any proceedings in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceedings may be various but that if a right is litigated between parties in a court of justice the proceedings by which the decision of the court is sought may be a suit." 14. The judgment in Baleshwar Dayal cited above is an authority of law for what it actually conveys and decides and not what can be deduced from its analogy, as is being carried by the learned counsel for the petitioner. It is a judgment pertinent to the disposal, of an appeal filed before the Appellate Tribunal under Section 18(2) of the SARFAESI Act, whereas the case on hand deals with an application under Section 17 read with Section 17-A of the SARFAESI Act. The judgment in the case of 'Ponnusamy and Smt. P. Shanthi' does not hold good. It does not enunciate the correct proposition of law in view of the fact that the learned Judge has not considered the import and the scope of the application of the law laid down by the Supreme Court in the cases of Mardia Chemicals Ltd. And others v. Union of India and others: M/s. Transcore v. Union of India and Anr. and Gopal Sardar v. Karuna Sardar, in carving out a case for the appellant. 15. It will be important to note that under the provisions of the SARFAESI Act the period during which an application can be filed has been fixed and determined and the relaxation thereof is neither within the domain nor within the jurisdiction and power of the District Judge. It is so because an application under Section 17 of the SARFAESI Act with which we are faced here has the trapping and alignment of a suit in which the Court has no power either under Section 5 of the Limitation Act or any other provisions of law to condone the delay. It is so because an application under Section 17 of the SARFAESI Act with which we are faced here has the trapping and alignment of a suit in which the Court has no power either under Section 5 of the Limitation Act or any other provisions of law to condone the delay. Looking at the instant case from the above perspective, notice under Section 13(2) of the SARFAESI Act in the case under consideration has been issued on 06.04.2017. Possession notice in terms of Section 13(4) of the SARFAESI Act has been issued on 18.06.2017. The petitioner has not responded to the notice issued under Section 13(2) SARFAESI Act, as there is nothing to state so in his pleadings. Possession notice in terms of Section 13(4) of the SARFAESI Act has been issued on 18.06.2017. The petitioner filed a petition before this High Court wherein he assailed the action of the Bank in issuing these notices. This petition as is brought to the bear from the perusal of the order of the learned District Judge, Srinagar, was filed before the High Court on 28.08.2017 i.e. after a period of 70 days from the date of the promulgation of the notice under Section 13(4) of the SARFAESI Act. The petitioner concern has made an unwarranted statement to the effect that the High Court gave it the liberty to file an application before the Tribunal, when as a matter of fact the petitioner concern itself sought the withdrawal of the petition with the liberty to knock at the doors of the Tribunal, which was granted by the High Court. 16. Be that as it may, even on the date of filing the petition before the High court the petitioner concern had lost the remedy of filing an application before the Tribunal. The petitioner even after the date of the dismissal of the petition by the High Court, did not file the application before the Court of Principal District Judge, Srinagar with due dispatch. He filed the same on 04.10.2017. The cumulative effect of what has been stated above is that both on the date of filing the petition before the High Court and on the date of filing the application before the Court of Learned District Judge, the petitioner had by the afflux of time lost the remedy of filing the application under Section 17-A of the SARFAESI Act. 17. 17. Assuming but not conceding for the sake of arguments that Section 5 of the law of Limitation will apply to the application of the petitioner filed under Section 17(A) of the SARFAESI Act, still then it will face rejection on the ground that no reason or justification has been put forward or spelt out by the petitioner for the condonation of delay in filing the application under Section 17(A) of the Act in which the impugned notices have been challenged. Viewed in the context of all that has been said and done in the preceding paras, the petition of the petitioner entails dismissal as a consequence of which the same is dismissed along with connected MP.