Dimpi's Creations And Ors vs Bank Of Baroda

P.K. Bhasin, J

Mr. Kapil Chandra, Advocate has filed the Vakalatnama for the review applicants.

I have heard the learned Counsel for the parties on the review application of the appellants in the disposed of appeal.

I am informed that the Hon'ble Delhi High Court has directed this Tribunal to dispose of this review petition without insisting upon the deposit of the amount in question by the non-applicant Bank with this Tribunal as it was directed to do on 18.5.2017. Copy of that order of the Hon'ble High Court, dated 24.7.2017, in W.P.(C) No. 6209/2017 has been produced and taken on record.

The review petitioners are seeking review of order dated 12.1.2015 whereby after dismissal of their appear vide earlier order dated 15.7.2014, the amount of pre-deposit of 25% of the debt in question was permitted to be released in favour of the Bank when an application was filed for that relief after the dismissal of the appeal of the appellants.

After 12.1.2015, the Hon'ble Supreme Court in one judgment rendered on 22.4.2016 in the case of Axis Bank v. SBS Organics Private Ltd. & Anr., III (2016) SLT 341, (Civil Appeal No. 4379/2016) held that pre-deposit amounts have to be returned to the depositors only irrespective of whether the appeals are disposed of as dismissed or withdrawn, and those amounts not to be released in favour secured creditors. In view of that judgment of the Hon'ble Supreme Court, the appellants decided to seek review of the order dated 12.1.2015 passed in their disposed of appeal, as noted above, and have sought a direction to the Bank to return the money it has received pursuant to the said order of 12.1.2015.

The application has been opposed from the side of the Bank on the ground that the order dated 12.1.2015 was never challenged by the review petitioner and, therefore, the same has attained finality and, consequently, appellants cannot avail of the benefit of the aforesaid judgment of the Hon'ble Supreme Court. It is also contended that this judgment in any case does not get attracted in the facts and circumstance of this case where the appeal was dismissed while, before the Hon'ble Supreme Court, the appeal under the SARFAESI Act was withdrawn having become infructuous because of the property involved therein getting sold before decision in the appeal could be rendered by the DRT.

Both sides have read before me the judgment of the Hon'ble supreme Court rendered in the case of Axis Bank (supra). I find that in the said judgment no distinction has been made by the Hon'ble Supreme Court regarding appeals which are disposed of on merits and those withdrawn by the appellants concerned. It has been clearly and unequivocally held that the amount of pre-deposit has to be returned to the appellant/depositor who prefers appeal under Section 18 of the SARFAESI Act, like the appellants did in the present case. No doubt, it has also been observed by the Hon'ble Supreme Court that amount of pre-deposit can be released in favour of secured creditor with the consent of the borrower/depositor unless that amount had been adjusted towards the borrower's dues or the same had been attached in any proceedings known to law. The learned Counsel for the Bank submits that in this case the Bank has already appropriated the pre-deposit amount after withdrawal in its favour pursuant to the directions of this Tribunal and, therefore, the present case is not covered by the decision of the Hon'ble Supreme Court in the case of Axis Bank (supra). It is submitted that no doubt there was no express consent for appropriation given by the appellants/depositors, but because of their not challenging the order dated 12.1.2015 and which order was passed without any reply having been filed to the Bank's application for release of money in its favour, consent for appropriation becomes implied in the conduct of the review petitioners.

In my view, since the judgment of the Hon'ble Supreme Court is very much clear, I do not find any merit in the aforesaid submission in opposition to the review application made on behalf of the Bank. The learned Counsel or the Bank has very fairly submitted that the effect of the judgment of the Hon'ble Supreme Court has to be that this was always the legal position that the amount of pre-deposit has to go back to the depositors subject, of course, to the exceptions carved out in the judgment itself in para No. 24 of the judgment. I am also of the view that since this was always the legal position that a depositor of pre-deposit amount is entitled to get back pre-deposit amount irrespective of the date of his appeal, the declaration to that effect made by the Hon'ble Supreme Court now in the year 2016 will be sufficient ground for review of the order dated 12.1.2015. This review petition is accordingly allowed. The order dated 12.1.2015 is recalled and the Bank is directed to deposit the amount received by it pursuant to the order dated 12.1.2015, with the Registrar of this Tribunal within two days and, therefore, the amount will be returned to the review petitioners. It is, however, clarified that if at all the Bank has any legal right to have the money in the hands of the borrower attached, it can always take recourse to that remedy available to it and since I am informed that recovery proceedings are already on for the recovery of the balance outstanding dues from the appellants/borrowers, if the Bank chooses to move any application before the R.O. for attachment of the aforesaid amount after the same gets paid to the review petitioners, that application shall be dealt with in accordance with law by the R.O.

Copy of this order be give dasti to the Counsel for the parties, as requested.