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Judgment
P.K. Bhasin, J
The appellant has filed this appeal under Section 20 of the SARFAESI Act challenging the order dated 20.10.2016, passed by the DRT-I, Chandigarh in S.A. No. 120/2015 filed by it under Section 17(1) of SARFAESI Act to save its land and building i.e. Naturopathy Centre at Rect and Kila No. 10.20.29/16, 17/1 at village Alipur, Tehsil Sona, Distt. Gurgaon admsg. 27 Kanals 9 Marlas (hereinafter to be referred as 'the property in dispute) which was equitably mortgaged in favour of the respondent Bank to secure the repayment of loan of Rs. 7,76,62,288/- disbursed (though sanctioned loan as per the appellant's case was Rs. 8,20,00,000/- which had been advanced to it by the respondent Bank, whereby the S.A. was rejected as being devoid of any merit.
In order to have the appeal entertained and heard by this Tribunal the appellant borrower is required mandatorily to make a pre-deposit with this appellant Tribunal of 50% of the loan amount which had been demanded from the appellant by the respondent or as determined by DRT, whichever is less. This is so provided under Section 18 of SARFAESI Act which reads under:
"18. Appeal to Appellate Tribunal.-(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal (along with such fee, as may be prescribed) to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal:
Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:
Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred to in the second proviso."
In the present case the property in dispute already stands auctioned in favour of respondent No, 2 herein for a sum of Rs. 11.77 crores whereas the amount shown in the auction notice to be recoverable from the appellant-borrower was Rs. 6,84,28,157.56. The appellant's case as urged before this Tribunal through its learned Senior Counsel Mr. Rajeeve Mehra is that since the property in dispute has already been sold and the Bank has recovered Rs. 11.77 crores from the respondent No. 2 herein, the auction purchaser, there remains no requirement of pre-deposit at all and in fact the Bank is liable to pay interest on the excess amount received and withheld by it. In support of the submission that the auction money recovered by the Bank is liable to be considered towards the compliance of the pre-deposit, which undisputedly is mandatory condition for the entertainment of this appeal, Mr. Mehra placed reliance on a judgment dated 10.11.2009 of Hon'ble Delhi High Court in W.P. (C) No. 13042/2009. Two decisions of Hon'ble Punjab and Haryana High Court were also cited. One was given in CWP No. 9131/2012 and the other one was given in WPC No. 10957/2012 on 19.2.2013. Some decisions of Hon'ble Allahabad High Court were also relied upon on the aspect of adjustment of a sale proceeds of mortgaged property while calculating the amount of pre-deposit. One order by consent passed by the Hon'ble Supreme Court on 25.2.2011 in Civil Appeal No. 2074-2078 if 2011 was also cited by Mr. Mehra.
This application has been opposed strongly not only by the Bank but also by the auction purchaser. This Tribunal has already taken a view, relying upon a judgment of the Hon'ble Supreme Court in the case of Indian Bank v. Blue Jaggers Estates Ltd., III (2010) BC 694(SC) : VI(2010) SLT 26 : 2010(3) Bankers' Journal 9 (SC), auction money received by a Bank from the successful auction purchaser of the mortgaged property cannot be considered towards compliance of the mandatory condition of pre-deposit when the defaulting borrower is not accepting the auction of his property and is challenging its legality in legal proceedings before a DRT. The pre-deposit has to be made with the DRAT and that pre-deposit has to be returned back to the depositor only irrespective of the fact whether the appeal is allowed or rejected. When no deposit has been made with the DRAT then nothing would be there to be returned to the appealing borrower and the borrower would have succeeded in getting entertained his appeal and disposed of on merits also without making a pre-deposit. In case the borrower challenges the auction sale in legal proceedings the sale remains in a nebulous stage and the sale will get finality/confirmed only when the legal proceedings come to an end. Here, in the present case the appellant has not accepted the legality of the sale of its property and has raised multiple objections against its legality. So, there is no confirmation of the sale of its property so far. These aspects were not raised nor considered in any of the judgments relied upon by the learned Senior Counsel for the appellant. However, Hon'ble Bombay High Court has in a recent judgment dated 30.11.2016 in W.P. No. 1315 of 2014, Eskays Construction Pvt. Ltd. v. Sona Papers & Industries Ltd., held that auction money cannot be considered while calculating the amount of pre-deposit when the auction sale itself is under challenge at the instance of the borrower. The relevant paras from this judgment of the Bombay High Court are re-produced below:
"(j) After hearing the parties, the DRT, by its detailed order dated 26th March, 2008 dismissed the Securitization Application No. 17 of 2007. Being aggrieved by the order passed by the DRT, respondent No. 1 filed an appeal before the DRAT under Section 18 of the SARFAESI Act (Appeal No. 79 of 2008). We must mention here that Section 18 of the SARFAESI Act contemplates that before any appeal can be entertained by the DRAT, the borrower has to deposit 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. A discretion has also been given to the DRAT to reduce this amount to not less than 25%, for reasons to be recorded in writing by the DRAT. In other words, the minimum requirement of deposit is 25% of the amount as claimed as due from the borrower by the secured creditors or as determined by the DRT, whichever is less. This is a mandatory provision and cannot be waived. Despite this, respondent No. 1 contended before the DRAT that since the sale of the subject properties has already taken place and the amounts lying with respondent No. 2 were far in excess of the amounts that were required to be deposited by respondent No. 1 under Section 18 of the SARFAESI Act, respondent No. 1 is not required to deposit any amount before the DRAT to entertain its appeal respondent No. 1 persuaded the DRAT to accept this contention and grant complete waiver of pre-deposit as per its order dated 1st April, 2009. This order (dated 1st April, 2009) is also impugned in this petition along with the final order passed by the DRAT dated 7th January, 2014.
(k) Be that as it may, after the petitioner and respondent No. 2 filed their respective affidavits before the DRAT, the DRAT heard the petitioners as well as the respondents herein and passed the impugned order dated 7th January, 2014. By the impugned order the DRAT set aside the judgment and order passed by the DRT in Securitization Application No. 17 of 2007 (filed by respondent No. 1).
Consequently, the said S.A. was allowed and the DRAT declared that the sale notice issued by the Authorized Officer of respondent No. 2 herein as well as the sale of subject properties to the petitioner was in violation of Rule 6(2) and Rule 8(6) of the SARFAESI Rules. It was however clarified that respondent No. 2 herein could proceed to re-sell the subject properties after strictly complying with the provisions of Rules 6, 8 and 9 of the SARFAESI Rules. Being aggrieved by these two orders (dated 1st April, 2009 and 7th January, 2014) passed by the DRAT, the petitioner is before us in our writ jurisdiction under Article 226 of the Constitution of India. We must note over here that, even respondent No. 2 herein (Bank of India) has filed its independent Writ Petition No. 5139 of 2014 challenging the very same orders passed by the DRAT.
In this factual background, Mr. Dhakephalkar learned Senior Counsel appearing on behalf of the petitioner, submitted that both the orders passed by the DRAT, namely, 1st April, 2009 and 7th January, 2014 are ex facie illegal and ought to be set aside. As far as the order dated 1st April, 2009 is concerned, Mr. Dhakephalkar submitted that this was an order that was passed on an application for waiver of deposit. He submitted that Section 18 of the SARFAESI Act clearly stipulates that no appeal filed by a borrower can be entertained by the DRAT unless the borrower deposits with the DRAT 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. He submitted that Section 18 further stipulates that the DRAT may, for reasons to be recorded in writing, reduce this amount to not less than 25%. Mr. Dhakephalkar submitted that these provisions are mandatory and have to be complied with by the borrower before its appeal could be entertained by the DRAT. In other words, it was the contention of Mr. Dhakephalkar that if the conditions of deposit are not met and/or complied with by the borrower, then there is a jurisdictional bar from entertaining the appeal filed by the borrower.
Looking to the language of Section 18, Mr. Dhakephalkar submitted that the DRAT had no power to waive the entire amount of deposit that was required to be made under Section 18. In this regard he laid great stress on the third proviso of Section 18(1) which stipulates that the DRAT may for the reasons recorded in writing, reduce the amount to not less than 25%. In other words, Mr. Dhakephalkar submitted that though the mandatory provision was that the borrower was required to deposit 50% of the debt before its appeal could be entertained, the DRAT had the discretion to reduce it to the amount of 25%. It had no discretion to reduce it any further.
Looking to the unambiguous statutory provisions as contained in Section 18 of the SARFAESI Act, Mr. Dhakephalkar submitted that the order dated 1st April, 2009 passed by the DRAT (Page 200 of the paper book), and which granted a full waiver of deposit, was ex facie contrary to the statutory provisions and was liable to be set aside.
Consequently, he submitted that if this order is set aside, then necessarily the order dated 7th January, 2014, also has to go. This is for the simple reason that the appeal filed by the 1st respondent herein before the DRAT could not have been entertained on merits, before a deposit as contemplated under Section 18 of the SARFAESI Act was complied with by the 1st respondent herein.
On the other hand, Ms. Jyotsna Vyas, learned Counsel appearing on behalf of the 1st respondent - borrower, submitted that both the orders passed by the DRAT (namely 1st April, 2009 and 7th January, 2014) were fully justified in law and required no interference by us in our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. As far as the first order dated 1st April, 2009 is concerned, Ms. Vyas submitted that this was an order passed on the application for waiver of deposit.
She submitted that it is true that Section 18 of the SARFAESI Act stipulates that no appeal filed by the borrower can be entertained by the DRAT, unless the borrower deposits with the DRAT, 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. However, this does not mean that even in a case where the properties of the borrower are sold and the entire dues of the Banks are recovered from that sale, the borrower still has to deposit 50% as contemplated under Section 18. She submitted that in the facts of the present case, the subject properties were sold by respondent Nos. 2 to 5 for a sum of Rs. 8.74 crores which was far higher than the dues of the respondent Banks. This being the position, the DRAT, was fully justified in ordering full waiver of deposit under Section 18 of the SARFAESI Act.
Having noted the purpose and object of the Act, we shall now deal with the rival contentions. The first argument canvassed by Mr. Dhakephalkar was that the order dated 1st April, 2009 passed by the DRAT by which a full waiver of deposit was granted to the 1st respondent - borrower, is ex-facie illegal as it is contrary to the statutory provisions of the SARFAESI Act. To understand this argument it would be appropriate to set out Section 18 of the SARFAESI Act which reads as under:
'18. Appeal to Appellate Tribunal.
(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal:
Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:
Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred to in the second proviso.
(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.'
Section 18(1) clearly stipulates, any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to the DRAT within 30 days from the date of receipt of the order of the DRT. The 2nd proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less.
The 3rd proviso to Section 18(1) gives a discretion to the DRAT to reduce the aforesaid amount to not less than 25%, provided the DRAT gives reasons for the same which are to be recorded in writing. What becomes clear from the aforesaid provisions is that there is a jurisdictional bar from entertaining an appeal filed by the borrower from an order passed under Section 17, unless the borrower deposits 50% of the amount of debt due from him, as claimed by the secured creditors or as determined by the DRT, whichever is less. There is also a discretion granted to the DRAT to reduce this amount to 25% provided it finds adequate reasons for doing so and gives reasons, that are recorded in writing. If this deposit is not made, then the DRAT has no jurisdiction to entertain the appeal of the borrower. The crucial words "debt due from him" have to be interpreted consistent with the object and purpose sought to be achieved by the SARFAESI Act. Unless the debt due is secured, the borrower cannot be allowed the luxury of litigation. If that is permitted, the secured creditors would be engaged in a continuous and futile litigation. On a plain reading of the section it is clear that the DRAT has no power or jurisdiction to reduce the deposit amount to less than 25%. This is ex-facie clear from the plain and unambiguous language of Section 18 of the SARFAESI Act.
In the view that we have taken, we are supported by a decision of the Supreme Court in the case of Narayan Chandra Ghosh v. UCO Bank, wherein the Supreme Court has clearly held that the provisions of Section 18, and more particularly the second and the third proviso thereto are mandatory in nature and the DRAT has no power to grant full waiver of deposit. The relevant paragraphs of the aforesaid decision reads thus:
'7. Section 18(1) of the Act confers a statutory right on a person aggrieved by any order made by the Debts Recovery Tribunal under Section 17 of the Act to prefer an appeal to the Appellate Tribunal. However, the right conferred under Section 18(1) is subject to the condition laid down in the second proviso thereto. The second proviso postulates that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less. However, under the third proviso to the sub-section, the Appellate Tribunal has the power to reduce the amount, for the reasons to be recorded in writing, to not less than twenty-five per cent of the debt, referred to in the second proviso. Thus, there is an absolute bar to the entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre-deposit of fifty per cent of the debt due from him or determined, an appeal under the said provision cannot be entertained by the Appellate Tribunal. The language of the said proviso is clear and admits of no ambiguity.
It is well-settled that when a statute confers a right of appeal, while granting the right, the Legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory. Bearing in mind the object of the Act, the conditions hedged in the said proviso cannot be said to be onerous.
Thus, we hold that the requirement of pre-deposit under Sub-section (1) of Section 18 of the Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. In that view of the matter, no Court, much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the statute. We have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said section, the Appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement.
The argument of the learned Counsel for the appellant that as the amount of debt due had not been determined by the Debts Recovery Tribunal, the appeal could be entertained by the Appellate Tribunal without insisting on pre-deposit, is equally fallacious. Under the second proviso to Sub-section (1) of Section 18 of the Act the amount of fifty per cent, which is required to be deposited by the borrower, is computed either with reference to the debt due from him as claimed by the secured creditors or as determined by the Debts Recovery Tribunal, whichever is less. Obviously, where the amount of debt is yet to be determined by the Debts Recovery Tribunal, the borrower, while preferring an appeal, would be liable to deposit fifty per cent of the debt due from him as claimed by the secured creditors. Therefore, the condition of pre-deposit being mandatory, a complete waiver of deposit by the appellant with the Appellate Tribunal, was beyond the provisions of the Act, as is evident from the second and third provisos to the said section. At best, the Appellate Tribunal could have, after recording the reasons, reduced the amount of deposit of fifty per cent to an amount not less than twenty-five per cent of the debt referred to in the second proviso. We are convinced that the order of the Appellate Tribunal, entertaining the appellant's appeal without insisting on pre-deposit was clearly unsustainable and, therefore, the decision of the High Court in setting aside the same cannot be flawed.'
In view of this authoritative pronouncement of the Supreme Court, we find considerable force in the arguments of Mr. Dhakephalkar that the DRAT has completely misdirected itself in granting full waiver of deposit to the 1st respondent - borrower before entertaining its appeal under Section 18 of the SARFAESI Act.
Faced with this situation, Ms. Vyas submitted that the DRAT has granted full waiver of deposit in peculiar facts and circumstances of the present case. She submitted that considering the fact that the respondent Banks had already sold the subject properties (secured assets) for a consideration that fully secured their claim, there was no requirement for the 1st respondent-borrower to deposit any amount as contemplated under Section 18 of the SARFAESI Act. We are unable to accept this submission. In our view it would be ludicrous to suggest that the money realised by the respondent Banks from sale of their secured assets could be used by the borrower to fulfill the condition of pre-deposit under Section 18.
We must hasten to add that it would be a different matter if the sale is accepted and confirmed by the borrower. In the facts of the present case, the 1st respondent,- borrower wants to use the sale proceeds received from sale of the subject properties to be adjusted/given credit for in the application for waiver of deposit and at the very same time challenges the sale of very same subject properties. This is to our mind, would be defeating the very purpose for which Section 18 was enacted, which is to curb unnecessary and frivolous litigation.
We, therefore, have no hesitation in rejecting this argument. We must mention here that an identical argument was canvassed before another Division Bench of this Court in the case of R.G. Dalpatrai & Co. v. Bank of Baroda and the same was emphatically repelled.
Paragraph 5 of the said decision reads thus:
"5. In our view, it will not be possible for us to interfere with the impugned order passed by the DRAT while exercising our writ jurisdiction under Article 226 of the Constitution of India. It is a well settled position in law that the amount which is received by the Bank in the sale of the immovable property cannot be adjusted in the application for waiver of pre-deposit, unless the sale is accepted and confirmed by the borrower. In the present case, petitioner has challenged the said sale after taking out separate application. We are, therefore, not inclined to entertain this petition. Petition is dismissed in limine."
(Emphasis supplied)
Very recently on 11.9.2018 Hon'ble Delhi High Court also W.P. (C) 9503/2018, M/s. SNF Alloys Pvt. Ltd. & Anr. v. Punjab and Sind Bank, has rejected similar argument that auction money is liable to be taken into consideration by DRAT while considering the prayer for waiver of the condition of pre-deposit. Relevant paras from this judgment are also re-produced below:
"2. ........The petitioners herein preferred an appeal before the DRAT, Delhi being Appeal No. 325/2018 along with an application under Section 20 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for waiver of pre-deposit.
It is the case of the petitioners that they were not aware of the sale consideration received as the petitioner No. 2 has shifted to Mumbai. The petitioners herein filed an application under Section 21 of the Act of 1993 requesting the Appellate Tribunal that the sale proceeds received from the sale of the mortgage property of the petitioners be considered as compliance of provision of Section 21 of the Act of 1993............
'As per the provisions of Section 21 of the Recovery of Debts and Bankruptcy Act, 1993, a deposit of 50% of the amount of debt adjudicated by the DRT to be recoverable from the borrower/mortgagor/guarantor is to be made with the DRAT as condition precedent for the entertainment of the appeal. The appellants are thus required to make a pre-deposit of Rs. 2.5 crores approx., which the appellants have not made. Counsel for the appellants has argued that this Tribunal had directed the appellants to make pre deposit of 25% only. However, that was not the final order of this Tribunal and the appellants were yet to get waiver of pre-deposit of balance 25%. Even today, the appellants have not shown any willingness to make deposit of minimum 25%. Therefore, I find no justification for restoration of the appeal.'
It is the submission of Mr. Hashmat Nabi, learned Counsel for the petitioners that the original OA was filed by the petitioners for a claim of Rs. 1,74,33,433.72 with interest @ 13% per annum from the date of filing of the O.A. till realisation. According to him, an amount of Rs. 85 lacs already stood recovered by the respondent Bank and as such the said amount would meet the requirement of at least 25% of the pre-deposit.
He would rely upon the order passed by this Court on 19th December, 2017 and the following judgments in support of his contention:
(i) Poonam Manshani v. J&K Bank Ltd. & Anr.,
(ii) Hamosons Apparels Pvt. Ltd. v. Indian Bank, 2014 SCC OnLine Mad. 561.
We are unable to agree with the submission made by Mr. Hashmat Nabi for the simple reason that Section 21 of the Act of 1993 stipulates as under:
"21. Deposit of amount of debt due, on filing appeal-Where an appeal is preferred by any person from whom the amount of debt is due to a Bank or a financial institution or a consortium of Banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal (fifty per cent) of the amount of debt so due from him as determined by the Tribunal under Section 19:
Provided that the Appellate Tribunal may, for reasons to be recorded in writing, [reduce the amount to be deposited by such amount which shall not be less than twenty-five per cent, of the amount of such debt so due] to be deposited under this section."
From the above, it is seen that the requirement for hearing of the appeal is the pre-deposit of 50% of the amount of debt so due from the appellant as determined by the Tribunal under Section 19. The amount of 50% can be reduced for the reasons recorded in writing by the Tribunal. The word debt has been defined by the Act of 1993 vide a Section 2(g) which is reproduced as under:
"[(g) "debt" means any liability (inclusive of interest) which is claimed as due from any person by a Bank or a financial institution or by a consortium of Banks or financial institutions during the course of any business activity undertaken by the Bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any Civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on the date of the application [and includes any liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrower by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of debt securities or.]"
In the case in hand the appeal has been filed by the petitioners against the order of the DRT deciding O.A. whereby the DRT has determined the total amount of debt due from the petitioners which according to the respondent Bank is an amount of Rs. 5 crores approximately after giving benefit of Rs. 85 lacs approx. So, it necessarily follows that the petitioners have to deposit an amount of Rs. 2.5 crores with the Tribunal, so that the appeal can be entertained by DRAT. This is the interpretation that can be given to the provisions of Section 21 and 2(g) of the Act of 1993 read together. The reliance placed by Mr. Hashmat Nabi on the order dated 19th December, 2017 is misplaced inasmuch in the order dated 19th December, 2017, this Court had only noted the submission on behalf of the petitioners about the recovery of a sum of Rs. 70.50 lacs as proceeds of the sale of the mortgaged asset, which in their view would suffice to meet the requirement of the deposit. The order dated 19th December, 2017 nowhere states that the amount of Rs. 70.50 lacs, or for that matter Rs. 85 lacs be treated as a pre-deposit for the purpose of hearing of the appeal. The issue of pre-deposit has to be seen from the perspective of Section 2(g) and Section 21 of the Act of 1993 which according to us does not help the case of the petitioners. In so far as the judgments relied upon by Mr. Nabi are concerned, suffice to state that the two judgments of this Court and the Madras High Court have no connection/applicability to the facts/issue, which falls for our consideration in this case, the same are not applicable."
So, in view of these judgments the argument of Mr. Mehra that the sale proceeds of the mortgaged property in dispute are liable to be reduced from the demanded amount of debt is rejected.
For the same reason the submission of Mr. Mehra that the amount of excess amount recovered by the Bank by sale of the property in dispute along with interest thereon which the Bank is liable to pay on that amount because of it having kept the same illegally at least is liable to be adjusted while calculating the amount of pre-deposit cannot be accepted. So, long the appellant does not accept the legality and validity of the auction sale of its property it cannot take any advantage of any part of the sale proceeds. The appellant must shell out the pre-deposit from its own funds and deposit with DRAT. The appellant cannot fire from the shoulders of a third party and particularly when the auction purchaser has already got fed up with the unending legal battle due to which the threat of losing the property in dispute will continue to remain till this litigation comes to an end finally. So, the auction purchaser has been praying even for return of auction money with reasonable amount of interest thereon so that it walks out of the scene and the Bank and the borrower continue fighting over the valuation of the property in dispute which appear to be the main point of dispute between the two inasmuch as the property which according to the appellant was of the value of more than 50 crores has been sold for Rs. 11 crores odd.
This is not even a fit case for reducing the pre-deposit amount also. The appellant's case as pleaded in the waiver application is that the brain behind creation for the benefit of poor and needy persons is that of one Dr. Ramesh Kumar Saksena who is a well known Homoeopathic Doctor and is now over 72 years of age and is quite unwell due to diabetes and had also met with a serious accident due to which his cervical was fractured and for his treatment has to spend lot of money and because of the acts of commission and omission of the Bank officers in conspiracy with the auction purchaser his property valued at 50 cores odd has been sold for a song thereby the said old gentleman has been ruined and so he is not able to make to make pre-deposit of 50% and he will suffer grave injustice in case he is called upon to make any payment towards pre-deposit to maintain this appeal.
In the facts and circumstances of the case I do not consider this case to be good enough where this Tribunal should exercise the discretion in reducing the amount of pre-deposit even by 25%. The claim of the appellant that it is financially not in a position to pay pre-deposit amount is prima facie not correct but in fact appears to be a misleading claim being made before this Tribunal taking shelter under the not so old age of the promoter of the appellant and his illnesses like diabetes etc. The same appellant at one time had before the Hon'ble Punjab and Haryana High Court, which was approached by the auction purchaser by way of CWP No. 7691/2016 (recently the auction purchaser had approached Hon'ble Delhi High Court also and had got a direction for time bound disposal of the waiver application and the appeal) when it was not getting possession of the property in dispute (which it has now got since the S.A. of the appellant has been dismissed during the pendency of the writ petition filed by the auction purchaser in the Punjab and Haryana High Court) on 1.8.2016 offered to return the auction money to the auction purchaser within eight weeks and again on 24.8.2016 had sought to redeem the mortgage. This shows that the claim of the appellant that it is in financial problems and is unable to make the pre-deposit is not correct.
This waiver application accordingly is dismissed. Considering the fact that the appellant had shown its willingness before the Punjab and Haryana High Court quite recently to pay to the auction purchaser the auction money of over eleven crores, which shows it has money to pay, the appellant is granted two weeks time to make the full pre-deposit of 50% of the amount shown in the sale notice as the amount recoverable from it on account of Bank's unpaid dues. Thereafter, the appeal will be heard on 12.11.2018 provided the pre-deposit stands made by that time.