Smt. Nirmala Pathak vs Debts Recovery Appellate Tribunal and Others

Rajiv Sharma, J.—Heard Mr Shikhar Anand, learned Counsel for the Petitioner and Mr Vinay Shanker, learned Counsel for the Bank.

The Petitioner, who is alleged to have been a Guarantor to a loan advanced to the opposite party Nos. 6 and 7, being aggrieved by the initiation of proceedings under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 moved an application u/s 17 of the Act which was rejected by the order dated 4.1.2010. Thereafter, the Appellate Authority has passed the impugned order dated 16.12.2010 u/s 18(2) of the Act.

Learned Counsel for the Petitioner submits that her signatures have been obtained fraudulently by the opposite parties 6 and 7 in connivance with the bank and as soon as she came to know the aforesaid fact, she filed an FIR in which investigation was concluded and charge sheet was also filed. Subsequently, the Petitioner has also filed a Suit No. 118 of 2008 and a preliminary issue was also framed in the Suit as to whether the Suit is maintainable or not in view of the Securitization Act, as Section 34 specifically bars the institution of proceedings under Code of Civil Procedure. The said issue was decided in favour of the Petitioner and after recording a finding of fact, the application for injunction under Order 39 Rules 1 and 2 of the CPC was allowed vide order dated 21.8.2009. Being aggrieved, the Bank filed a writ petition No. 6093 (MS) of 2009, which is pending in this Court.

Learned Counsel for the Petitioner submits that the condition is not so onerous or oppressive or arbitrary or unreasonable that legislative wisdom has to be put in judicial scanner by entertaining the writ petition. In support of his submissions, learned Counsel for the Petitioner has also relied upon the Calcutta High Court''s judgment passed in Star Textiles and Industries Ltd. v. Union of India and Ors. [2009 (1) B CLR 401 (Cal)].

The prerequisite condition for entertainment of appeal is that the Appellant has to deposit 50% of the amount as determined by the Debts Recovery Appellate Tribunal or Securitization Act whichever is less. The Act further provides that the said amount of 50% can be reduced to 25% after recording reasons for the same. The Petitioner has also moved an application and on the said application, the Appellate Authority has reduced the amount from 50% to 25%, which according to the Petitioner is more than 25%, but the Counsel for the opposite parties states that the amount determined by the Tribunal is 25%. In order to clarify the aforesaid position, it is to mention that the total amount is Rs. 7.59 lakhs, whereas the Tribunal has determined that 2.5 lakhs has to be deposited with the Bank within six weeks from the date of passing order. Apparently, on the face of record, the amount determined by the Tribunal is more than 25%.

Looking into the fats and circumstances of the case, the amount has been reduced to 25% of Rs. 7.59 lakhs and the Petitioner is directed to deposit the said amount within one month from today.

The writ petition stands disposed of in above terms.