Sudesh Kumari vs Karnataka Bank Ltd. And Ors.

Ranjit Singh, J

The appellant has stood a guarantor for the amount which was borrowed by her son. The Bank has initiated proceedings under the SARFAESI Act. Feeling aggrieved against the action by the Bank, the appellant had approached the Tribunal below by filing this SA. On 24th July, 2015, it was submitted on behalf of the appellant that she was ready to deposit some amount with the respondent-Bank if some time was given to her. The Counsel prayed for an order restraining the Bank from taking physical possession of the property which is a residential property bearing No. 182 (new) and 299 (old) on plot measuring 73 sq. yards situated at village Azadpur, School Wali Gali, near Community Centre, MCD Banquet Hall, Delhi.

This prayer was opposed by the Counsel appearing for the Bank. The Tribunal, below, however, restrained the Bank from taking physical possession of the property in question subject to deposit of 25% of the NPA amount within sixty days in two equal monthly instalments. The appellant was required to file an affidavit-cum-undertaking in this regard within three days before the Tribunal below with an advance copy to the respondent-Bank. The Tribunal had made it clear to the appellant that in case of single default on her part, the Bank would be at liberty to proceed with the action under the SARFAESI Act through the same Receiver in accordance with law.

Notice amount in the present case is Rs. 1.09 crores approximately. The appellant so far as only made a deposit of Rs. 1 lac. The appellant therefore has not complied with the condition imposed vide order dated July 24, 2015. The Bank accordingly is entitled to proceed against the property in question as the restraint order would no more be operative.

The appellant in the meantime filed an application (IA No. 1737/2015) before the Tribunal below seeking extension of time by 90 days to deposit the amount as was ordered on July 24, 2015. The Tribunal below has observed that despite opportunity, the appellant has not complied with the direction. Still, in the interest of justice, one week time has been granted to the appellant to make the deposit failing which the Bank is given liberty to proceed against the property in question in accordance with law. Aggrieved against this order, the appellant has filed the present appeal.

The prayer by the Counsel for the appellant is that the appellant will deposit 25% amount as ordered by the Tribunal below by 31st December, 2015. The Counsel has also prayed that the appellant may be permitted to pay the same in instalments. At one stage, the Counsel also pleaded that the appellant would deposit Rs. 10 lacs to pray for continuing the order passed by the Tribunal below restraining the Bank from taking physical possession of the property in question.

I have considered the prayer made by the Counsel for the appellant. Sufficient time has already been allowed to the appellant to make this deposit. Just on deposit of Rs. 1 lac, the appellant has enjoyed the benefit of stay order for a period of over sixty days. The appellant has not even filed affidavit-cum-undertaking as was directed by the Tribunal below vide order dated July 24, 2015. The appellant, thus, is seen clearly violating the directions issued by the Tribunal below and therefore may not deserve any further concession or consideration. Still, I have considered the request and have given option to the appellant to deposit of 25% of the amount in order to have the protection of interim order. The possession of the appellant can be protected only if she deposits 25% of the notice amount as directed by the Tribunal below. There is no merit in any of the pleas raised. The appeal is dismissed in limine.

Restrained order can continue further only on deposit of 25% of the notice amount. If the appellant is in a position to make this deposit, it may approach the Tribunal with the amount to pray for staying further action. It will be for the Tribunal below to grant the stay if so prayed for. Since the present appeal is dismissed in limine, no order is called for on the application seeking waiver of the requirement of pre-deposit.