Sushma Raina vs Canara Bank And Ors

P.K. Bhasin, J

This is an application moved by the appellant in the dismissed appeal, which dismissal, of course, was due to noncompliance of the direction given to the appellant for making a pre-deposit of 25% of the amount of debt in question vide order dated 20.12.2017, seeking recalling of that order. The applicant had challenged the order dated 23.8.2017 by filing writ petition being WP(C) No. 10692/2017 before the Hon'ble High Court. However, when that writ petition came up for hearing before the Hon'ble High Court, the same was withdrawn and as requested, liberty was granted to the writ petitioner, the appellant herein to 'initiate appropriate proceedings in accordance with law, before the learned DRT'. Pursuance to the liberty granted to the appellant by Hon'ble High Court, the present application has been moved.

The submissions of the learned Counsel for the appellant is that in one writ petition decided by the Hon'ble Delhi High Court on 30.1.2015 being WP(C) No. 886/2015 the appeal of the writ petitioner of that case who had been directed to comply with the requirement of pre-deposit before the entertainment of his appeal before the DRT, the Hon'ble High Court had observed that the condition imposed by the DRT for deposit of 25% of the notice amount would result in grave injustice. It is submitted that in the present case also the direction given by this Tribunal to make a pre-deposit of 25% of the amount of debt in question will cause grave hardship to the appellant since, she is a victim of fraud and in any event not even in a financial position to comply with such a condition. Another judgment of Hon'ble Delhi High Court dated 16.8.2011 rendered in WP(C) No. 5138/2011 has also been cited, wherein, the Hon'ble High Court had observed that one of the ingredients to be satisfied by the appellant, filing an appeal before Appellate Tribunal (DRAT) for grant of waiver on condition of pre-deposit as financial hardship. It was observed by the Hon'ble High Court that it had not been considered by the DRT and so, the DRAT was directed to reconsider the aspect of waiver and to decide whether the writ petitioners were being in financial hardship of kind which warranted waiver of the pre-deposit, as condition precedent for the entertainment of the appeal. It is significant to note that both these decisions were rendered by the Hon'ble High Court when an unamended provision under Section 21 of the RDDBFI Act was in force. Learned Counsel for the appellant had also submitted that since this case pertains to the era, when Appellate Tribunal could grant 100% waiver in the condition of pre-deposit this Tribunal has to apply the law which existed at that time while considering the prayer of appellant for waiver of the condition of pre-deposit and decide this aspect afresh and, if that is done, this Tribunal will be convinced that the appellant is entitled to 100% waiver. After amendment in 2016 the Appellate Tribunal has been left with no discretion to reduce the amount of pre-deposit below 25% and exercising that discretion this Tribunal had directed the appellant to make a deposit of only 25% of the amount of debt in dispute. Therefore, I do not find any good reason for recalling the order dated 23.8.2017, whereby, the aforesaid direction was given to the appellant due to non-compliance of which the appeal subsequently came to be dismissed vide order dated 20.12.2017. As far as the law pre-amendment is concerned, the same cannot be made applicable when the waiver request is being considered after the law has changed. In any event, there is no scope for 100% waiver of the condition of pre-deposit.

Consequently, this application is dismissed.