Ram Chander Gupta vs Kotak Mahindra Bank Ltd. And Ors.

Ranjit Singh, J

One of the submissions made in the appeal is that the Bank cannot be permitted to pursue two proceedings simultaneously one before the Arbitrator and the other under the SARFAESI Act. This issue was raised by the Counsel for the appellant and is also noticed by the Tribunal below in the impugned order. After considering the submission made, the Tribunal below has restrained the Bank from taking physical possession of the property but subject to deposit of Rs. 7.50 lacs out of the total amount due giving sixty days time for making the payment in instalment.

The Counsel for the appellant submits that the amount claimed before the Arbitrator is Rs. 11.38 lacs, whereas the notice under Section 13(2) is for Rs. 15.07 lacs. The Counsel accordingly contends that the direction issued by the Tribunal below to deposit Rs. 7.50 lacs within sixty days apparently would be on the higher side. The Counsel pleads that the amount which was claimed before the Arbitrator may be considered while requiring to make the deposit for the purpose of interim order.

Since the Tribunal is dealing with the action initiated under SARFAESI Act, the direction by the Tribunal in considering the notice amount on this count cannot be faulted. However, the appellant seems to have made out a cause so far as his plea of being exposed to dual proceedings before Arbitrator as well as under the SARFAESI Act is concerned. It would be appropriate for the Tribunal below to consider this aspect first. While doing so, the Tribunal may also consider if some more concession in the reducing the amount payable can be given to the appellant while restraining the Bank from taking physical possession of the property.

The appeal is accordingly disposed of with the above observation. The appellant would be at liberty to move an appropriate application before the Tribunal below in this regard. In view of the appeal having been disposed of in limine, no order needs to be passed on the waiver application. In any case, the appellant has already made a deposit of Rs. 1.50 lac and is also under direction to make further deposit.