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Judgment
Ranjit Singh, J
In this appeal filed on 15th April, 2015 to impugn the order dated 5th February, 2015, the Registry has raised an objection against the appeal being barred by limitation by 39 days. The office has raised another objection of the appellant having not complied with the requirement of pre-deposit of 25% of the notice amount for which no prayer for seeking waiver had been made. When this appeal came up for hearing on 21st April, 2015, it was adjourned for the appellant to remove the office objections. The appellant accordingly has filed this application (IA No. 273 of 2015) seeking condonation of delay and another application (IA No. 274 of 2015) under Section 18(1) and (2) of the SARFAESI Act pleading the plea that no pre-deposit is required in the circumstances of the present appeal.
Notice on the application seeking condonation of delay was accordingly issued. When the case came up for hearing on 26th May, 2015, the Counsel for respondent No. 1 Bank appeared. However, none had appeared on behalf of respondent Nos. 2 to 4. The Counsel for the appellant had then submitted that these respondents stood served as notice issued to them had not been received back with any report. In order to ensure the presence of respondent Nos. 2 to 4, this submission of the Counsel for the appellant was not accepted. Thereafter, the Counsel for the appellant pointed out that the said respondents were ex parte before the Tribunal below. This Tribunal found that this cannot be the ground not to effect service on respondent Nos. 2 to 4 in this appeal and accordingly fresh notice was issued to respondent Nos. 2 to 4 for the adjourned date. The Counsel for the appellant, at that stage, pointed out that service to respondent Nos. 2 to 4 be dispensed with at his risk and responsibility which was accordingly ordered.
The Bank is yet to file reply. The Counsel for the Bank submits that he could not file reply as he was under the impression that the case was adjourned to a date in July, 2015 and is taken unaware about the date which perhaps was got changed. The Counsel, however, has expressed that he is ready to make submissions on both the applications.
The Counsel for the parties therefore have been heard.
To seek condonation of delay in filing the appeal, the appellant has urged that the same is filed within time from the date he has received the copy of the order on March 20, 2015. It is averred in this application that arguments in this IA were heard by the Tribunal below on 28th January, 2015 and 5th February, 2015 was fixed for passing of the order. As per the Counsel, on this date, no order was passed. The appellant would urge that his Counsel kept on enquiring till 18th March, 2015 on which date the Counsel made a mention before the Tribunal below and thereafter the order was signed on 20th March, 2015. The appellant obtained the certified copy immediately. Except for certified copy, no other copy was statedly supplied to the appellant. Accordingly, the Counsel pleads that there is no delay in filing the appeal.
To further substantiate his submission, the Counsel refers to the provisions of Section 18 of the SARFAESI Act to emphasize that any person aggrieved by the order passed by the Debts Recovery Tribunal under Section 17 may prefer an appeal within 30 days from the date of receipt of the order of the Debts Recovery Tribunal. The plea by the Counsel therefore is that the responsibility to supply copy is that of the Tribunal below and since no copy was supplied, the appeal filed by the appellant was within limitation from the date he applied and had received the certified copy of the impugned order.
To support the plea that the order was signed and pronounced on 5th February, 2015, the Counsel states that he is ready to lead evidence in this regard though he has filed an affidavit of the Counsel.
Mr. Saxena appearing for the respondent Bank, however, would contest that this plea and would point out that there is no indication anywhere available from the record that the impugned order dated 5th February, 2015 was not pronounced on the said date or was signed subsequently. As per him, the Counsel who represented the appellant before the Tribunal below is an Advocate who regularly appears before the Tribunals and so could be expected to apply for certified copy on 5th February, 2015 itself instead of making inquiries, etc. or making a mention. The impugned order clearly shows that it was pronounced and is signed on 5th February, 2015.
Mr. Saxena is fully justified in stating that sanctity of judicial order has to be maintained and cannot be questioned simply by a Counsel by filing an affidavit. Order once pronounced may not have been signed or may not be ready on the same date but that would not give any ground to the appellant to not to apply for the certified copy of the order. If the appellant had applied for the copy on the date of order itself then limitation would have been counted from the date the copy was supplied. Judicial orders cannot be disbelieved merely on the asking of a Counsel. Sanctity of the judicial order has to be maintained. If such a mode is left open to challenge an order and the parties are permitted to lead evidence on the incidental issues, then whole sanctity required to be attached to the judicial order will loose its significance. I, therefore, have no hesitation in rejecting the submissions made by the Counsel in seeking condonation of delay on grounds as pleaded.
The Counsel is even totally misconceived in urging that it was the responsibility of the Debts Recovery Tribunal to supply him copy of the impugned order. His submission that there is no provision for getting certified copy or getting copy for filing appeal obviously is misplaced. This plea is in ignorance of the provisions made in the rules. Rule 16 of the Debts Recovery Tribunal (Procedure) Rules, 1993 requires that every order passed on an application shall be communicated to the applicant and to the defendant either in person or by registered post free of cost. Reference in the Rule is to final order on the application. Any order dismissing the interim application apparently would not fall within the purview of Rule 16 of the said Rules. There is no practice to supply the copies of the orders on the IA. No such practice or rule is brought to my notice. It has not been urged in this manner. Rule 17 makes a provision for inspection and obtaining copies of the order. Thus, a party is expected to apply and get certified copy of the order in case any party intends to file an appeal. Any appeal which is filed would be properly constituted only once it is filed with certified copy of the order. The submissions made by the Counsel for the appellant in this regard, therefore, are without basis and deserve to be rejected.
Indeed, this appeal has been filed with delay of 39 days. Prayer made in the application is to condone this delay. Though I have rejected the grounds as advanced to be valid grounds to seek condonation of delay but considering the fact that the delay, if any, in filing the appeal is not attributable to the conduct of the appellant and is primary that of his Counsel in making the application for getting certified copy of the impugned order, I am still inclined to consider the prayer for condoning the delay sympathetically. The delay in applying for certified copy of the order attributed to the Counsel for the appellant and therefore deserves to be condoned. The prayer made in the application is accordingly allowed and the delay in filing the appeal is, therefore, condoned. The application (IA No. 273 of 2015) is accordingly disposed of.
Next hurdle facing the appellant is about making pre-deposit to maintain the present appeal in terms of Section 18 of the SARFAESI Act. Plea by the Counsel for the appellant is that the requirement of making a pre-deposit would not arise in this case as the appellant has challenged an interlocutory order. As per the Counsel, the appellant had prayed for placing on record certain documents which prayer has been declined by the Tribunal below. It is, thus, not a final order against which this appeal is preferred. Submitting that the case of the appellant is that the documents of guarantee are forged one, the prayer was made for placing on record the documents or the report of forensic expert.
By referring to the proviso under Section 18 of the SARFAESI Act, the Counsel would submit that this proviso applies to the borrower and not to any other person. The Counsel seems to contend that he being not the borrower would not be covered by the conditions imposed in this proviso. Having said so, the Counsel himself would refer to the definition of the 'borrower' as given in Section 2(f) of the SARFAESI Act. A 'borrower' is defined to mean any person who has been granted financial assistance by any Bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any Bank or financial institution and includes a person who becomes borrower of a securitization company or reconstruction company consent upon acquisition by it of any rights or interest of any Bank or financial institution in relation to such financial assistance. On the basis of this definition, the submission of the Counsel that the proviso under Section 18 would not encompass wider definition of borrower as given in Section 2(f) deserves out right rejection. Once, the term 'borrower' has been defined, it cannot be ignored while interpreting the provisions of Section 18 of the said Act.
Equally untenable is the other submission made by the Counsel when he says that the requirement of pre-deposit would arise when the amount is determined by the Debts Recovery Tribunal. The Counsel for the appellant seems to be doing a selective reading of the proviso and while advancing this plea is seen to have completely ignoring the other part of the proviso where the amount claimed by the secured creditor is also relevant and pre-deposit is required to be made on the basis of the amount claimed by the secured creditor or determined by the Debts Recovery Tribunal whichever is less. A bare reading of the proviso would negate the submission made by the Counsel for the appellant that the requirement of pre-deposit would arise only upon determination of the amount by the Tribunal. The amount claimed by the secured creditor is equally relevant for the purpose of pre-deposit and would remain relevant even after determination to see which one is less as that will be relevant for quantum of pre-deposit. The submission that the determination of the amount is yet to be done and hence no need of making pre-deposit, thus, is against the proviso itself and cannot be accepted. The same is accordingly rejected.
The Counsel would also plead that if the said proviso is interpreted in the manner requiring the borrower and guarantor to make the deposit of 50% of the amount as claimed or determined by the Tribunal then it would lead to absurdity. The Counsel urges that in case there are more than one borrower or guarantor then each one would be heard only on deposit of 50% which would mean that the Bank would receive the amount which is more than the amount determined or the amount as claimed in the notice and hence making the position absurd. There is basic fallacy in this submission. Such question, if arises before the Tribunal is required to be decided on the basis of deposit which are made to maintain appeal against the order. If one of the borrowers has deposited the amount then the subsequent borrower while filing appeal can definitely rely upon such deposit and may not be called upon to make any further deposit. No such issue would arise when the borrower and guarantors would file single appeal. The plea that the provisions would lead to some absurd position is thus misplaced.
This issue of making pre-deposit in appeal under Section 18 of the Act has been examined by this Tribunal in one of the appeals filed against an interlocutory order. After hearing detailed submissions in this regard, this Tribunal in the case of M/s. Shree Acids & Chemical Ltd. & Anr. v. M/s. ASREC (India) Ltd., Misc. Appeal No. 100/2013, decided on 26th May, 2014, has held that the requirement of pre-deposit would arise in cases of appeal where any order, be it interlocutory or ancillary, is challenged, as that would be an order under Section 18 and the proviso contained thereunder would fully apply. It is learnt that even the Writ Petition filed against this order has been dismissed by the Hon'ble High Court of Delhi.
This view was formed by this Tribunal primarily on the basis of law laid down by the Hon'ble Supreme Court in the case of Narain Chandra Ghosh v. UCO Bank & Ors., II (2011) CLT 355. It will, therefore, now be too late in a day for the appellant to argue that the requirement of making pre-deposit would not be needed when an appeal is directed against an interlocutory order. This plea of the appellant, therefore, cannot be accepted and is hereby rejected.
Since the view formed by this Tribunal is that any appeal filed under Section 18 of the SARFAESI Act cannot be entertained by ignoring the proviso thereunder, the plea for complete waiver of the requirement of pre-deposit for entertaining this appeal without making any pre-deposit is unsustainable. The appeal is a creature of Statute and has strictly to be governed by the statutory provision. If the Legislature has made a provision for hearing of the appeal on deposit of percentage of the amount claimed in the notice, then it is not open to challenge on the ground that it is against the principle of natural justice. This provision has already been upheld by the Apex Court. Right to appeal being right under Statute cannot be said to be against natural justice. The plea that imposition of pre-deposit shall defeat the purpose of statutory right of getting justice is again misplaced. If the appeal is held maintainable on the conditions imposed by the Statute, the appellant cannot seek exemption therefrom on such frivolous pleas raised one after the other. The submission that the law laid down by this Court in the case of M/s. Shree Acids & Chemical Ltd. & Anr. v. M/s. ASREC (India) Ltd. (supra) would require reconsideration, is a plea raised without any basis. The appellant, thus, cannot wish away the requirement of making a pre-deposit to maintain the present appeal.
Considering the fact that this appeal is directed against an interlocutory order, the appellant may not be required to make a deposit of 50% of the notice amount. Though not pleaded in this manner of seeking waiver of this requirement by offering some justification, still I am inclined to consider the prayer and allow the appellant to maintain this appeal by depositing 25% of the notice amount which is the minimum amount required to be deposited by the appellant to maintain this appeal as per proviso of Section 18 of the SARFAESI Act. Let the appellant make a deposit of 25% of the notice amount within a period of six weeks. The application (IA No. 274 of 2015) is accordingly disposed of.
Adjourned to 31st July, 2015 to oversee the requirement of pre-deposit.
At this stage, the Counsel for the appellant prays for staying the passing of final order by the Tribunal below. Since the appeal can only be maintained once on deposit of 25% of the notice amount is made, as directed above, and at present is not properly constituted, it would not be fair to grant any interim order. Accordingly, the prayer made for staying the passing of final order is declined.