AI Structured Summary
Not yet generated for this judgment
Judgment
Brijesh Sethi, Chairperson
This matter has been taken up by me through Video Conferencing.
Appellants have filed the instant appeal against the impugned order dated 19.12.2023 whereby the S.A. of the appellants was dismissed by the Ld. DRT-II, Chandigarh on the ground of delay.
For the entertainment of the appeal, the appellants have to cross the hurdle pre-deposit. As per the notice dated 23.08.2017 under Section 13(2) of the SARFAESI Act, the respondent bank has called upon the appellants to pay a sum of Rs.2,56,92,404.99 as on 14.08.2017. Ld. counsel for the appellants submits that he has already deposited a sum or Rs.1,12,54,835/- after the issuance. In this regard, the Ld. counsel for the appellants has referred to the order dated 05.10.2023 passed by the Hon'ble High Court of Punjab and Haryana High Court in CVVP No.5539/2020 which was filed against notice dated 21.11.2017 under Section 13(4) of the SARFAESI Act and order dated 04.09.2018 passed by the District Magistrate, Gurgaon under Section 14 of the SARFAESI Act. The Hon'ble High Court had dismissed the said writ petition on 05.10.2023, observing that it did not find any ground which called for interference. It was also recorded in the order that as per the Ld. counsel for the respondent bank, a sum of Rs.3.4 crores was due as on the date of the order, i.e. 05.10.2023 from the appellants.
Appellants have not made pre-deposit of even 25%. Submission of the Ld. counsel for the appellants is that the amount of Rs.1,2,54,835/- paid to the bank by the appellants after the issuance of the notice under Section 13(2) of the SARFAESI Act by the bank be treated as compliance of the condition of pre-deposit by the appellants for the entertainment of the appeal. However, that is not the law.
Heard. Section 18 of the SARFAESI Act is clear and unambiguous and states that appeal cannot be entertained without payment of pre-deposit. It runs as under:-
"18. Appeal to Appellate Tribunal- (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.
Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than borrower;
Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred in the second proviso.
(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."
Thus, unless and until the appellants comply with the condition of predeposit, this Tribunal cannot entertain the appeal. What to speak of this Tribunal, the Hon'ble Supreme Court has in Kotak Mahindra Bank Pvt. Ltd vs. Ambuj A Kasliwal & Ors., Civil Appeal No. 538/2021, decided on 16.02.2021, has observed that even the Hon'ble High Court does not have the power to waive the pre-deposit in its entirety, nor can it exercise discretion, which is against the mandatory requirements of the statutory provisions.
The amount demanded by the bank is Rs.2,56,92,404.99 as on 14.08.2017 and the appellants claim to have paid to the bank an amount of Rs.1,12,54,835/- thereafter. Thus, according to the appellants themselves an amount of Rs.1,44,37,569.99 plus interest is pending to be paid to the bank. The appellants can, however, deduct the amount they have paid to the bank after the issuance of notice under Section 13(2) of the SARFAESI Act by the bank, while calculating the amount to be made as pre-deposit and make pre-deposit on rest of the outstanding amount. As per the statement made by the Ld. counsel for the respondent before the Hon'ble Punjab and Haryana High Court, the amount still to be paid by the appellants as on 05.10.2023 is Rs.3.4 crores. The appellants have, however, failed to make any pre-deposit.
In view of the above, since the appellants have not complied with the mandatory requirement of pre-deposit, the present appeal cannot be entertained. Let the file be consigned to record room. However, in the interest of justice, the appellants are given liberty to revive the appeal in case they comply with the requirement of pre-deposit within four weeks and file an application for revival of the appeal.