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TMI Blog2018 (11) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Act, 1993, ('the Act of 1993'), the petitioners filed an application I.A.No.313/2016 seeking waiver of such condition of pre-deposit. The DRAT, in its order dated 30.11.2016, looking to the amended provisions of Section 21 of the Act of 1993 and the quantum of decreetal debt in question, directed the petitioners -appellants to deposit a sum of Rs. 50,00,00,000/- (Rupees Fifty Crore) within one month while observing as under: "5. Considering the rival contentions and going through the submissions of Ld. Counsel for the parties, the pre deposit of 50% of the debt amount is necessary. The debt amount is Rs. 155.06 Crores and odd. On convincing of good ground, it could be reduced only up to 25% of the debt amount. In view of the facts and circumstances of the case, I deem it to fit to fix Rs. 50 Crores, as pre deposit required under Section 21 of the Act, to entertain the Appeal on merits. 6. Accordingly, the Appellants are directed to deposit Rs. 50 Crores [Rupees Fifty Crores Only] in the name of the Registrar, DRAT, Chennai within one month from today. It is made clear that in case of non compliance of the above condition, the Application IA 313/2016 shall stand dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Bank vide legal notice dated 03.10.2012 demanded of the second Respondent-Deccan Cargo and the petitioners, for repayment of Rs. 155.06 Crore. A Reply was sent on 10.10.2012 stating that the loan would be taken over by the fourth Respondent-Axis Bank. In the meanwhile, Company Petition No.143/2011 was filed seeking winding up of the second Respondent-Deccan Cargo and this Court vide order dated 11.06.2013 ordered for the winding up. (c) The first Respondent-Syndicate Bank filed a suit in O.A.No.267/2013 against the petitioners and the second Respondent-Deccan Cargo. The third Respondent-State Bank of India and the fourth Respondent-Axis Bank were also arraigned as defendants. After a full fledged trial, the DRT, decreed the O.A. on 31.05.2016, the relevant part whereof reads as under: "Defendant Nos.1 to 3 jointly and severally shall pay a sum of Rs. 155,06,87,507.99 to the Appellant Bank as on 30.11.2012 together with further inerest there on from 01.12.2012 @ 19.75 % p.a., compounded monthly on a sum of Rs. 73,57,92,240.07 and at the rate of 17.50 % p.a., compounded monthly on Rs. 81,47,45,267.92". The DRT also permitted the first Respondent-Syndicate Bank to proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Official Liquidator representing the second Respondent-Deccan Cargo in liquidation, has supported the contention of the petitioners that the 2016 Amendment is prospective in operation and therefore, the DRT could not have invoked the same. 10. However, the learned panel Counsel for the first Respondent-Syndicate Bank has repelled the contention stating that although the right of appeal is a substantive right, the condition which restricts the said right being procedural in nature, the 2016 Amendment is retrospective in operation and therefore, no fault can be laid in the DRAT invoking the proviso of the Amended Section 21 of the Act. 11. The learned panel counsel for the first Respondent-Syndicate Bank has further contended that irrespective of the nature and effect of 2016 Amendment, the petitioners are not entitled to seek complete waiver of the condition of pre-deposit inasmuch as the amount due under the DRT order now exceeds Rs. 200 to Rs. 300 Crore; and the petitioners, who are the sureties/guarantors, are admittedly having agricultural land, whose material particulars are not furnished; the DRAT having considered all aspects of the matter, has directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal may, for reasons to be recorded in writing, reduce the amount to be deposited by such amount which shall not be less than twenty-five per cent. of the amount of such debt so due to be deposited under this section. Amendment of Section 21 of the Act of 1993 is retrospective: 15. Having regard to the subject matter and the submissions made, it is appropriate to take up for examination, in the first place, the fundamental question raised in these matters as regards the nature and effect of amendment to Section 21 of the Act of 1993 as brought about by the Amendment Act of the year 2016. Ordinarily, the amendment of substantive law is presumed to be prospective in operation and the amendment of procedural law is presumed to be retrospective in operation [vide Workmen v. Firestone Tyre & Rubber Co., of India (P.) Ltd. [1973] 1 SCC 813. 16. The pre-amendment provisions of Section 21 of the Act 1993 required the appellant to deposit 75% of the decreetal sum which the DRAT had the discretion to waive or reduce, depending upon the facts and circumstances of the individual case. The said Section came to be amended by substitution of certain expressions by Act 44 of 2016 w.e.f. 01.09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parulekar v. District Magistrate, Bombay AIR 1952 SC 324 has expounded on these principles as under:- ".....the Rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity), as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all......" 20. The question whether an amendment by way of substitution would have retrospective effect had fallen for consideration of the Full Bench of this Court in the case of Hassan Co-operative Milk Producers Societies Union Ltd. v. State of Karnataka, Department of Co-operative Societies ILR 2014 KAR 4257. The Court, after considering a catena of decisions, has ruled that such amendments are retrospective in operation in the following:- "21. We would also like to examine the effect of amendment by way of substitution and to find out whether amendment by Act No.3 of 2013, by way of substitution would have retrospective operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of appeal is to be exercised. The trimming of condition, in essence, relates to the law of procedure, which is normally retrospective in operation. Therefore, the contention of the petitioner that the amendment is prospective in effect, is not well founded. 22. The judgment of the Apex Court in the case of Hoosein Kasam Dada (India) Ltd. (supra) at paragraphs 13 & 16 arguably held that the amended provision of law imposing conditions for exercising right of appeal is ordinarily prospective in operation. However, noticeable it is that the provision under consideration before the Supreme Court in the aforesaid case was of the nature that before amendment, the right of appeal was almost an unfettered right and the assessee was only required to deposit such amount of tax and/or penalty that he may admit to be due; but by way of amendment, it was enjoined upon the appellant - assessee to make payment of the entire amount of the tax with penalty in respect of which the appeal was preferred. The Supreme Court found that the amendment had placed a substantial restriction on the right of appeal, where the entire assessed amount was required to be deposited. In that context, it was obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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