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Judgment
Ashok Menon, Chairperson
The matter is taken up for hearing by way of Praecipe dated 3. 0.8.2022 filed by the Appellants for seeking urgent relief.
Heard the learned counsel for the Appellants and the learned counsel for the Respondent Bank on this application for considering the amount recovered by the Respondent subsequently, and the amount lying in Fixed Deposit in the name of the Applicants in the Respondent Bank towards pre-deposit to be paid towards the second tranche which was to be made by the Appellants vide order dated 01.06.2022 in I.A. No. 40/2022 of this Tribunal. The Appellants have already deposited the first installment of ₹ 96.50 Lakhs on 15.06.2022 as directed by this Tribunal on time. The Appellants were supposed to deposit a sum of Rs.96.50 Lakhs on or before 06.07.2022 towards the second tranche but could manage to deposit only a sum of ₹ 20 Lakhs on 02.07.2022 with the Registrar by way of RTGS mode of payment. For payment of the balance sum of ₹ 76.50 Lakhs, the Appellants sought eight weeks and filed I.A. No. 302 for an extension of time. Exercising jurisdiction under Section 148 C.P.C; this Tribunal granted time till 04.08.2022 to pay the balance amount due towards the second tranche. Now, the Appellants have once again approached this Tribunal on the penultimate day of the deposit seeking further indulgence. It is submitted that towards the total pre-deposit amount payable by the Appellants, have already deposited a sum of ₹ 173.50/- Lakhs. Towards the balance amount due, the Appellants intend to transfer a sum of ₹ 50/- Lakhs on 29/07/2022 and the remaining amount of ₹ 1,602,932/-by 04/08/2022. It is submitted that after the order dated 06/07/2022 granting an extension of time to the Appellants to pay the balance pre-deposit, the Respondent Bank has encashed two fixed deposits in the name of the Appellants and has appropriated a total sum of ₹ 639,888/-towards the amount due from the Appellants. Three more fixed deposits of ₹ 407,180/- are lying with the Respondent Bank in the name of the Appellants. It is submitted that the amount of ₹ 639,888/-already recovered by the Respondent Bank and the amount lying in fixed deposits with the Bank ₹ 407,180/-together with the accrued interest thereon may also be considered as pre-deposit for the purpose of entertaining the appeal under the 2nd proviso to Section 18 (1) of the SARFAESI Act.
The learned counsel for the Bank has vehemently opposed the application stating that sufficient indulgence has already been shown by this Tribunal, and no further concession be granted to the Appellants. It is submitted that the amounts in the name of the Appellants lying in fixed deposits with the Respondent Bank could be adjusted towards the amount due from the Appellants as the Respondent Bank has a lien over those deposits and there is no embargo in appropriating those amounts. At the date of filing the appeal, a sum of ₹ 7,75,64,475.67 was due from the Appellants to the Respondent Bank and this Tribunal had determined a sum of ₹2.5 Crores to be paid as pre-deposit. ₹ 57 Lakhs, which was lying in a deposit without lien with the Respondent Bank was also directed to be brought to the Tribunal towards pre-deposit to be paid by the Appellants. The Respondent Bank has already complied with that order and brought the sum of ₹ 57 Lakhs before this Court. Nothing is mentioned by the Appellants at the time of hearing the application for waiver or the application for extension of time filed as I.A. No. 302/2022 about adjusting the fixed deposits lying with the Respondent Bank towards pre-deposit. The Appellants had asked for eight weeks' time, and this Tribunal was pleased to grant them four weeks' time to pay the 2nd tranche of the pre-deposit. In the meanwhile, the Special Civil Application filed by the Appellants before the Hon’ble High Court of Gujarat challenging the order of this Tribunal in I.A. No. 40 of 2022, was also disposed of without interfering with the order of this Tribunal. The Appellants cannot, therefore, seek any further indulgence from this Tribunal. Even if, the amounts in fixed deposits are to be adjusted towards the amount due, it would only bring down the total sum of ₹ 77,564,475.67, and cannot be adjusted towards the pre-deposit to be made. This Tribunal did not insist upon payment of 50% of the amount due and has liberally reduced the amount payable as pre-deposit to only ₹ 2.5 crores.
The Appellants had made an earnest attempt to pay the second installment by depositing a sum of ₹ 20 Lakhs and therefore, this Tribunal was intelligent enough to grant four weeks' time to the Appellant to pay the 2nd tranche to be paid on or before 4. 08.2022. ₹76.50 Lakhs is the amount to be paid towards the 2nd tranche. The Appellants have already paid ₹ 6.602,932/- by way of RGTS. Towards the balance amount, they want the deposits with the Respondent Bank to be brought into the pre-deposit. Since the Respondent Bank has a Bankers Lien over the fixed deposits belonging to the Appellants with them, they cannot be found at fault for having adjusted those amounts towards the amounts due from the Appellants. The only grievance raised by the Appellants is that those fixed deposits are appropriated by the Respondent Bank subsequent to the granting of extension by this Tribunal. There was no embargo on the Bank doing so, and therefore, they cannot be found at fault for the said action.
The Appellant had undertaken to pay the entire amount due towards the 2nd tranche of pre-deposit within eight weeks and this Tribunal had granted them four weeks to pay the amount. In I.A. No. 302/2022. The Appellant had not requested for the adjustment of the fixed deposit amounts towards the pre-deposit. They cannot at this stage come with the prayer which cannot be allowed. On payment of the 1st tranche towards pre-deposit, a stay was granted by this Tribunal against the Respondent Bank from proceeding further with the SARFAESI measures against the secured assets. There was no stay against the Respondent Bank restraining them from appropriating the amounts in fixed deposit towards the amount due. Hence, the prayer of the Appellants in this application cannot be allowed.
While dismissing this application, I direct the Appellants to pay the balance amount due from them towards the 2nd tranche of the pre-deposit within the period of one week from today (on or before 11.08.2022). No further concession or extension of time would be granted to the Appellants. Default in payment of the amount entails in dismissal of the appeal.
Post on 12.08.2022 for reporting compliance with this order.