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Judgment
Ashok Menon, Chairperson
The matter is taken up for hearing by way of a praecipe filed by the appellants for seeking urgent relief.
The appellants are in appeal impugning the order dated 13.06.2024 in Securitisation Application (S.A.) No. 92/2022 declining to grant protection to the appellants from the Sarfaesi measures on taking physical possession of the subject property and order obtained u/s 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002 ( “SARFAESI Act” for short) from the Chief Juridical Magistrate. The appellants are aggrieved and hence, in appeal.
The possession was initially intended to be taken on 17.06.2024 but despite the dismissal of the interlocutory prayer, the possession was not taken on that date and the appellants did not come in appeal. The prayer that was declined was the protection concerning taking over possession on 17.06.2024. Hence, this appeal has already outlived its purpose and has, therefore, become infructuous. The prayer declining to grant protection cannot be revived under any circumstances. In the interregnum period, when the appeal was pending, the appellants received yet another notice scheduling the taking over the possession of the subject property on the 29th instant and therefore, the appellants are anxious to get an order of protection from this Tribunal.
The appellants have submitted that in the impugned order, there is a remark made regarding the merits of the case and therefore, they are entitled to challenge those findings. The findings in the impugned order are that the court has already observed in the earlier order on 09.11.2023 which was passed before the taking over possession on a particular date which too did not materialize.
The entire facts and circumstances of this case show that the appellants have been approaching the D.R.T. for protection from taking over protection despite the prayer being declined. The possession was never taken on all those dates on which it was scheduled and therefore, there is no possibility of taking over possession of the subject property on 29th instant and the Ld. Counsel appearing for the respondent has given an assurance that the possession would not be taken without notice.
To entertain the appeal, the appellants will have to comply with the mandatory requisite of making the pre-deposit. There is no finding of merits but it is pertinent to note that the appellants had approached with the OTS proposals which were rejected by the bank and the outstanding amount as per the demand notice is only a sum of ₹28,31,454/- as of 12.07.2021 and the Ld. Counsel appearing for the respondent submits that the present outstanding due is a sum of ₹43,03,085/-. The appellants do not have a very strong prima facie case and no evidence regarding the financial strain is also produced. Therefore, the appellants are directed to deposit a sum of ₹14 lakhs as pre-deposit for entertaining the appeal. The said amount shall be deposited into two equal instalments as stated hereunder.
Numbers of Instalments
Payment on or before
1st Instalment ₹ 7 lakhs
28.12.2024
2nd Instalment ₹ 7 lakhs
13.01.2025
The Ld. Counsel appearing for the respondent insists that the amount deposit may be permitted to be claimed.
In default in payment of any of the amount/instalment on time shall entail the dismissal of the appeal without any further reference to this Tribunal.
The amount shall be deposited in the form of a Demand Draft/RTGS with the Registrar of this Tribunal. Payment by RTGS shall be communicated to the Registry for verification and intimated to the counsel for the respondents.
As and when the said amounts are deposited, they shall be invested in term deposits in the name of Registrar, DRAT, Mumbai, with any Nationalised bank, initially for 13 months, and thereafter to be renewed periodically.
With these observations, the I.A. is disposed of. The Respondent is at liberty to file a reply in the appeal with an advance copy to the other side.
List the matter on 30.12.2024 for reporting compliance regarding the payment of 1st instalment of pre-deposit.