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TMI Blog2017 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 (3) TMI 1478 - SUPREME COURT OF INDIA] held that the condition of pre-deposit for entertainment of an appeal being mandatory under Section 18 of the SARFAESI Act, an appeal cannot be entertained, unless the condition precedent of deposit is fulfilled. The Court also held that the condition of pre-deposit being mandatory, complete waiver of pre-deposit is beyond the provisions of the Act. DRAT has reduced the required pre-deposit of 25%, which is the minimum amount required to be deposited in view of the third proviso to Section 18 of the SARFAESI Act.In view of the verdict of the Supreme Court in Narain Chandra Ghose (supra) and the mandatory requirement of the third proviso to Section 18 of the SARFAESI Act, the writ petition cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner No.1 had for its business purposes, availed credit facilities from Indian Bank, predecessor-in-interest of the respondent Edelweiss Asset Reconstruction Company Ltd. 3. The Haryana State Industrial Development Corporation (HSIDC), had allotted the property being Plot No.23, Sector-4, Industrial Estate, IMT Manesar, Gurgaon to BM Sarin (HUF). A Deed of Conveyance was executed by HSIDC through the petitioner no.2, in favour of the petitioner no.1. 4. By way of security for the credit facilities, the petitioner no.1 mortgaged the said property to Indian Bank. 5. Section 13 (1), (2), (3), (3A), (4) and (5) of the SARFAESI Act provides as follows:- 13. Enforcement of security interest (1) Notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A. (4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-- (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjected to the said notice under Section 13 (3A) of the SARFAESI Act read with Rules 3 (a) to (c) of the Security Interest (Enforcement) Rules 2000. The objection/ representation was rejected by Indian Bank on 27.6.2011. On 10.8.2011, Indian Bank took symbolic possession of the said property under Section 13(4) of the SARFAESI Act. 8. Under Section 17 of the SARFAESI Act, any person including a borrower aggrieved by any of the measures referred to in sub Section (4) of Section 13 taken by a secured creditor or his authorized officer, may make an application to the DRT having jurisdiction in the matter, within 45 days from the date, on which the measure had been taken. On receipt of such an application, the DRT is required to consider whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person other than the borrower: PROVIDED FURTHER that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: PROVIDED ALSO that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso. (2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 18 of the SARFAESI Act, an appeal cannot be entertained, unless the condition precedent of deposit is fulfilled. The Court also held that the condition of pre-deposit being mandatory, complete waiver of pre-deposit is beyond the provisions of the Act. 15. The learned DRAT has reduced the required pre-deposit of 25%, which is the minimum amount required to be deposited in view of the third proviso to Section 18 of the SARFAESI Act. 16. In view of the verdict of the Supreme Court in Narain Chandra Ghose (supra) and the mandatory requirement of the third proviso to Section 18 of the SARFAESI Act, the writ petition cannot be entertained and the same is dismissed. All the pending applications are also dismissed. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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