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Judgment
Ashok Menon, Chairperson
This is an appeal filed by the Applicants in Securitisation Application No. 18 of 2002 (S.A.) on the files of the Debts Recovery Tribunal-I, Ahmedabad (D.R.T.) challenging the order of the Learned Presiding Officer dated 12/01/2023. This application is filed for waiver of deposit under Sec. 18(1) of the Securitisation & Recovery of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’, for short).
The Appellants had earlier sought an interim relief to stall the Sarfaesi measures initiated against them by the 1st Respondent bank for recovery of money under the provisions of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interests Act, 2002 (‘SARFAESI Act’, for short) and vide order dated 04/08/2022, the Ld. P.O. declined to grant any interim relief to the Applicants in the S.A. That order was challenged before this Tribunal in Misc. Appeal at Diary No. 782/2022 and the Appellants were directed to make a pre-deposit of ₹15 crores under section 18(1) of the SARFAESI Act in two equal instalments vide order dated 29/08/2022. The Appellants sought an extension of time to pay the first instalment and the same was allowed directing the Appellants to pay the amount by 03/10/2022. Despite the extension of time, the Appellants could not pay the amount which resulted in dismissal of the Misc. Appeal at Diary No. 782/2022 by this Tribunal. The Appellants thereafter filed S.C.A No. 25886/2022 before the Hon’ble High Court of Gujarat challenging the order of pre-deposit directed to be made by this Tribunal. However, the said S.C.A. was withdrawn and dismissed.
The Appellants thereafter filed an undertaking affidavit as Exhibit A 13 before the D.R.T expressing their willingness to deposit ₹15 crores as directed by this Tribunal and also annexed a demand draft for a sum of ₹2.5 crores undertaking to pay the balance ₹12.5 crores within three months. The Appellants requested for the status quo with regard to the secured assets to be maintained by the Respondent bank in consequence of the aforesaid offer to deposit the amount, and to injunct the secured creditor from taking physical possession of the secured assets till disposal of the S.A.
The Respondent bank opposed this proposal of the Appellants stating that after having failed to comply with the directions of the DRAT and the Hon’ble High Court of Gujarat, the Appellants cannot now seek any relief with regard to the secured assets. It was also contended by the Respondent that the Appellants have not made any payment towards the dues to the bank.
After having heard both sides, the Ld. Presiding Officer observed that the Appellants cannot seek any indulgence from the D.R.T. after having failed to comply with the order to deposit the mandatory pre-deposit amount as directed by the DRAT. And hence, the Ld. P.O. refused to grant any relief sought by the Applicants in the undertaking affidavit filed as Exhibit A 13 and posted the S.A. for final hearing.
The Appellants are aggrieved by this order made by the Ld. Presiding Officer, and hence in appeal.
The Appellants have come up with this very ingenious idea of getting over the earlier order of this Tribunal to make the mandatory pre-deposit required to be made under section 18 (1) of the SARFAESI Act after having failed to make the payment despite getting an extension of time and then having challenged the order before the Hon’ble High Court of Gujarat and withdrawn the same period.
In fact, by filing the undertaking-cum-affidavit as Exhibit A 13 before the D.R.T., the Appellants had reiterated their prayer for interim relief in the S.A. after having failed to get a favourable order in the first instance.
This appeal and the application for waiver of deposit have to be dismissed at the threshold because the Appellants had failed to deposit the mandatory pre-deposit amount of ₹15 crores within the stipulated time and also within the extended time and suffered a dismissal of the appeal. Without having sought an extension of time to deposit the amount, the Appellants preferred application before the Hon’ble High Court of Gujarat which was withdrawn by them. Thereafter, they offer to deposit the very same amount of ₹15 crores before the D.R.T. and sought the interim relief which was earlier declined to be granted by the Ld. P.O.
The Appellants have approached this Tribunal again in appeal with the same prayer to stall the Sarfaesi measures initiated by the first Respondent Bank. The Ld. P.O. had earlier declined to grant an interim relief and the Appellants were before this Tribunal. Because of non-payment of the mandatory pre-deposit under Sec. 18(1) of the SARFAESI Act, the appeal filed earlier by them was dismissed. The Appellants have approached this Tribunal once again with the similar prayer and offered to deposit the amount which was directed to be deposited earlier. The advantage that the Appellants get by filing the fresh appeal is that they get a fresh extension of time even without asking for it. The Appellants could not have insisted on stalling the Sarfaesi measures by offering to deposit a sum of ₹15 crores before the D.R.T. at this length of time after exhausting their remedy of the appeal before this Tribunal as also before the High Court. The Ld. Presiding Officer had rightly declined to entertain the undertaking affidavit filed by the Appellants offering to deposit ₹15 crores in instalments suitable to them. This appeal has no legs to stand on and needs to be dismissed in limine even without being entertained.
Under the circumstances, the application as also the appeal at diary number stands dismissed with costs ₹1 lac to the first Respondent bank.