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Judgment
Ashok Menon, Chairperson
This is an application filed under sec. 18(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (“SARFAESI Act”, for short) requesting to invoke the discretionary jurisdiction of this Tribunal under the 3rd proviso to Sec. 18(1) to waive the mandatory pre-deposit on the ground that the Appellant has already deposited the pre-deposit amount in another Misc. Appeal on Diary No.1283 of 2022 which arose from an earlier interlocutory order in Securitisation Application (S.A) No. 181 of 2021 on the files of Debts Recovery Tribunal, Aurangabad, (D.R.T). The present appeal arises from a subsequent to the order in I.A. No. 1441 of 2023 dismissed by the D.R.T. in the same S.A.
The question for determination in this application is whether the Appellant will have to comply with the mandatory provisions of pre-deposit contemplated under Sec. 18 (1) again while the pre-deposit in the earlier appeal from the very same S.A. is still lying with this Tribunal.
The Ld. Counsel appearing for the Appellant Mr Rajesh Nagory submits that the Appellant need not deposit 50% of the debt due every time he comes in appeal challenging interlocutory orders passed in the S.A. Since every interlocutory order of the D.R.T. is appealable, insisting on a deposit of 50% of the debt due each time an appeal is preferred would result in the Appellant in depositing more amount than the entire debt due.
Per contra, Mr Charles D’Souza, the Ld. Counsel appearing for the Respondent creditor submits that no appeal can be entertained without complying with the mandatory provisions of a pre-deposit contemplated under Sec. 18(1) of the SARFAESI Act. Reliance is placed on the decision of the Hon’ble Supreme Court in Narayan Chandra Ghosh vs. UCO Bank & Ors (2011) 4 SCC 548 wherein it is held that the 2nd proviso postulates that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal 50% of the amount of debt due from him, as claimed by the secured creditors or determined by the D.R.T., whichever is less.
In the earlier appeal preferred by the Appellant challenging the interlocutory order of the D.R.T., this Tribunal had directed the Appellant to deposit ₹75 lakhs as pre-deposit for entertaining the appeal. That appeal is pending and the deposit is also lying with this Tribunal. The 2nd proviso to Sec. 18 (1) postulates a deposit of only 50% of the debt due. The Appellant had suffered yet another adverse order from the D.R.T. in a subsequent application filed by him. Under such circumstances, the Appellant has no other option but to prefer an appeal. In case the Appellant is directed to deposit a further amount of ₹75 lakhs, the total deposit would be more than 50% of the debt due. This Tribunal is, therefore, of the opinion that a further deposit may not be necessary to entertain the present appeal.
I.A. No. 102 of 2024 is, therefore, allowed and the appeal is directed to be taken on file in case there are no defects to be cured. Post on 28.05.2024 before the Registrar.