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Judgment
Ashok Menon, Chairperson
The matter is taken up for hearing by way of a praecipe dated 14.10.2022 filed by the Appellants seeking urgent relief.
The appeal is filed challenging the interim order of the Ld. Presiding Officer in I.A. No. 2141/2022 in Securitisation Application (S.A.) No. 136/2020 dated 21.12.2022 filed by the auction purchasers who are Respondents Nos. 3 to 5 requesting handing over possession of the property that they had purchased in an auction sale on 10.11.2020. The learned Presiding Officer allowed the interim application and the Appellants are aggrieved. Hence, this Appeal. The S.A. referred to above was filed before the Debts Recovery Tribunal (DRT), Pune challenging the auction sale in view of the fact that there was a pending O.T.S. proposal which was ultimately rejected, though, the Appellants had made earnest attempts to clear the debt and regularized the account by payment of the amount.
It is seen that from the interlocutory order made by the D.R.T., that time was granted to the Appellants to make payments, and certain payments have also been made. The amount that was demanded as per notice under Sec. 13(4) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’, for short) was ₹2.37 crores and inclusive of interest. As of date, the amount due from the Appellants is ₹3,91,22,793.13, according to the account statement filed by the learned counsel appearing for the first Respondent Bank.
The learned counsel appearing for the Appellants seeks indulgence of this Tribunal to submit that the Appellants have made earnest attempts to pay the amount and therefore, they may not be dispossessed from their residential house.
It is the submission of the learned counsel appearing for the auction purchasers Respondents Nos. 3 to 5 that despite having purchased the property on 10.11.2020 paid the entire amount and also received the sale certificate on 23.11.2020 which was registered on 15.12.2020, they are yet to get possession of the property and have been waiting for the last more than two years. It is also pointed out from the application that the Appellants have not challenged any of the Sarfaesi measures till the auction had taken place. The learned Presiding Officer was indulgent enough to grant Appellants time more than once. But despite having paid some amount, there is still an outstanding due of nearly ₹3.91 crores. The learned counsel Appellants submits that he has paid ₹41.50 lacs directly to the Bank under OTS and ₹51 lacs as per the order of D.R.T. has also been deposited in Bank. Therefore, this amount of ₹92.50 lacs is to be taken into consideration while calculating the pre-deposit. The learned counsel appearing for the Respondent Bank submits that ₹92.50 lacs which has been paid, has been deposited in no lien account and has, therefore, not been deducted from the amount due. Therefore, the sum of ₹92.50 lacs lies in no lien account which has not been accounted for. Since the said amount ₹92.50 lacs has not been accounted for in the total outstanding due, the learned counsel appearing for the Appellants submits that the aforesaid amount is to be considered as a deposit under Sec. 18(1) of the SARFAESI Act.
Considering the entire facts and circumstances of this case, I find that the threshold amount for pre-deposit is to be determined as ₹3,91,22,793.13. The Appellants have not pleaded or proved any financial stress and the Income Tax Return has not been filed therefore, the Appellants are not entitled to any concession to invoke the discretionary power of this Tribunal under the third proviso to Sec 18(1) of the SARFAESI Act. The Appellants are, therefore, liable to deposit 50% of the amount of ₹3,91,22,793.13. From out of that there are ₹92.50 lacs lying in no lien account with the Bank which has not been deducted from the amount which is due. The learned counsel for the Respondent undertakes that if there is an order from this Tribunal that amount can be deposited towards the pre-deposit. The Appellants are directed to deposit a sum of a total of ₹1.95 crores as pre-deposit. The sum of ₹92.50 lacs which has been deposited with the Bank shall be produced by the first Respondent Bank before this Tribunal to be adjusted toward the total amount that is payable by the Appellants, and the balance sum of ₹1,02,50,000/- shall be paid by them in two equal instalments. The first instalment shall be payable within three weeks from today, on or before 31.01.2023. And, the second instalment shall be payable within three weeks therefrom, on or before 21.02.2023. In default, the Appeal shall stand dismissed without any further reference to this Tribunal.
The amounts shall be deposited in the form of a Demand Draft with the Registrar of this Tribunal.
As and when the said amounts are deposited, they shall be invested in term deposits in the name of Registrar, DRAT, Mumbai, with any nationalized bank, initially for 13 months, and thereafter to be renewed periodically.
On deposit of the payment within the stipulated time by the Appellant, as directed, the handing over of possession to the auction purchasers shall stand stalled till the disposal of the Appeal.
With these observations, the I.A. is disposed of. Respondents are at liberty to file a reply in the Appeal with an advance copy to the other side.
Post on 03.02.2023 for reporting compliance concerning the payment of the first instalment.