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Judgment
Ashok Menon, Chairperson
The matter is taken up for hearing by way of a praecipe filed by the Appellant for seeking urgent relief.
The Appellant is in appeal aggrieved by the order dated 29.11.2023 in the Interim Application (I.A.) No. 2546/2023 in Securitization Application at Diary (S.A.) No. 2371/2023 on the files of the Debts Recovery Tribunal-II, Mumbai (D.R.T.) wherein the Ld. Presiding Officer declined to grant any protection to the Appellant from being dispossession of the secured assets against which the Respondent Bank has proceeded under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act” for short). The demand notice u/s 13 (2) of the SARFAESI Act issued on 05.04.2021 demands a sum of ₹1,30,91,459/-. The subsequent steps u/s 13 (4) were initiated and an order was obtained u/s 14 from the District Magistrate for taking possession of the property and that stage the Appellant approached the D.R.T. with the S.A. No. 46/2023.
However, the Appellant filed an affidavit undertaking to settle the entire dues and to pay a sum of ₹35 lakhs on or before 28. 03.2020 and to clear the balance also after approaching the bank, the S.A. was disposed of on that undertaking given by the Appellant. However, the Appellant did not comply with the undertaking given by them and therefore, Respondent Bank initiated further measures u/s 14 to take possession of the property. At that stage, the Appellant again approached the D.R.T. with the present S.A. (D) No. 2371/2023 seeking relief challenging the Sarfaesi measures on the very same grounds that were taken in the earlier S.A. No. 46/2023. While considering the I.A. No. 2546/2023 the Ld. Presiding Officer observed that given the undertaking given by the Appellant based on which the earlier S.A. was disposed of the Appellant has waived abandoned relinquished their right to challenge the Sarfaesi measures. The only steps that have been taken subsequently by the Respondent Bank are issuing the fresh notice to take possession as per the order u/s 14. Regarding that notice, the Appellant does not have any challenges, and therefore, the Ld. Presiding Officer was justified in observing that the Appellant has no challenge against the Sarfaesi measures and no prima facie case. Hence, no interlocutory orders were passed in favour of the Appellant.
To maintain an appeal u/s 18 the Appellant will have to convince this Tribunal of the existence of the prima facie case and on the existence of financial strain. As regards prima facie, I agree with the observation made in the Ld. Presiding Officers impugned order. Given the undertaking given by the Appellant and an affidavit and thereafter, the S.A. being disposed of the Appellant definitely cannot come up with the challenge of the very same Sarfaesi measures once again, and since there is no infirmity pointed out in the notice they have now received for taking over possession, it is doubtful whether the present S.A. itself would be maintainable.
However, I am not concluding my findings on that and given the facts that the S.A. is posted for finding on maintainability before the D.R.T. Since the steps challenged is that the 13 (4) stage, as per the latest decision of the Hon’ble Supreme Court of India in Sidha Neelkanth Paper Industries Pvt. Ltd. & Ano. vs. Prudent ARC Ltd & Ors., 2023 SCC OnLine SC 12, the threshold amount for payment of the pre-deposit is the amount mentioned in the notice u/s 13 (2). As the Appellant has not complied with the requirement of the prima facie case and proved that they have a financial strain the Appellant is not entitled to any indulgence under the 3rd proviso to section 18 (1) of the SARFEASI Act. The Appellant is, therefore, directed to deposit a sum of ₹65 lakhs as per-deposit for entertaining this appeal. The Ld. Counsel appearing for the Appellant is producing the demand draft of a sum of ₹5 lakhs toward the payment of the pre-deposit amount and the same shall be received and the balance amount of ₹60 lakhs shall be paid within four weeks, i.e. on or before 01.02.2024.
Given the payment of ₹5 lakhs, the taking over possession scheduled to place on 08.01.2024 shall stand stalled till the next date of hearing.
Default in payment of any of the instalments/amount shall entail in dismissal of the appeal without any further reference to this Tribunal.
The amount 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 nationalised bank, initially for 13 months, and thereafter to be renewed periodically.
With these observations, the I.A. is disposed of. The Respondents is at liberty to file a reply in the Appeal with an advance copy to the other side.
Post on 02.02.2024 for reporting compliance.