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TMI Blog2018 (10) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, the same shall be followed strictly. In other words, what is not provided under the statute, cannot be claimed as a matter of right by anyone, and therefore, the claim of the petitioners herein, seeking 100% waiver, would certainly go contrary to the provision, Section 18 of the SARFAESI Act 2002. Even taking for granted that the grounds raised by the petitioners, as to whether the order passed by DRT, is sustainable or not, which can be tested before the DRAT, Chennai, by adhering to the condition to be complied with under Section 18, wherein, the appellant has to make a pre deposit of ₹ 50% for entertaining an appeal or an amount not less than 25% of the amount claimed or determined by the Tribunal, as the case may be. Since 15 crores has already been recovered towards the principle amount, as claimed under Section 13(2) of the Act, it would be appropriate to direct the petitioner to pay a sum of ₹ 57 crores as pre~deposit in two equal installments. Accordingly, the petitioner is directed to pay the 1st installment within 8 weeks from the date of receipt of a copy of this order and the second installment to be paid within 8 weeks thereof - Upon complying wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s become NPA. That apart, the petitioners would contend that there had been several correspondence, exchanged between the 1st petitioner and 4th respondent, prior to 14.07.2016, and in none of these correspondence, the 4th respondent had stated that the 1st petitioner-s account had been classified as NPA as on 30.05.2016. The petitioners would also contend that the classification of account as NPA, is not in accordance with the provisions of law and the guidelines issued by the Reserve Bank of India. 4. The 1st petitioner company, to the demand notice dated 14.07.2016 sent by the respondent bank as per Section 13(2) of the SARFAESI Act 2002, sent a detailed reply on 19.08.2016 in terms of Section 13(3A) of the SARFAESI Act 2002. When the said reply was under consideration, there was negotiation between the 1st petitioner and the 4rd respondent. The 3rd respondent, on 17.12.2016, issued another demand notice under Section 13(2) of the SARFAESI Act 2002, for ₹ 240,03,62,820.86 and interest thereon, and in default threatened to exercise its right under SARFAESI Act 2002 and to proceed against the secured assets. 5. To the second demand notice dated 17.12.2016, the 1st pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght for, as regards the challenge to the notice issued under Section 13(2) of the SARFAESI Act 2002. The contention of the petitioners herein is that when this issue was not even argued or objected to, or disputed by the 3rd and 4th respondents herein, an order came to be passed on 18.01.2018 by DRT~I, without dealing with the issue. 10. Being aggrieved, the petitioners have filed an Appeal in AIR.(SA).No.99 of 2018 before the DRAT, Chennai, under Section 18 of the SARFAESI Act 2002, to set aside the order dated 18.01.2018 passed in S.A.No.30 of 2017 and consequently, to direct DRT~I to hear S.A.No.30 of 2017, without restricting to only challenge post issuance of notice under Section 13(4) of the SARFAESI Act 2002. 11. The petitioners would further contend that they have filed I.A.No.234 of 2018 in AIR.(SA).No.99 of 2018 seeking for complete waiver of pre~deposit, on the ground that there was violation of principles of natural justice, that they were not given opportunity of hearing on the aforesaid issue. On 15.03.2018, DRAT, Chennai, refused to consider the prayer, in the Waiver Application and postponed the same, for a decision, at the time of final hearing, and direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have no intention to take actual possession of the schedule mentioned items 5 and 6, and sought time for filing counter. Thereafter, several adjournments were granted, and after 6 months of securing an interim order, the petitioners commenced their arguments again, on the maintainability of proceedings under SARFAESI Act 2002. By order dated 18.01.2018, DRT~I held that S.A.No.30 of 2017 filed by the petitioner, insofar as it relates to the relief claimed, for setting aside the demand notice dated 17.12.2016 issued under 13(2) of the SARFAESI Act 2002, S.A.No.30 of 2017, is not maintainable. 15. Challenging the order dated 18.01.2018, the petitioners have filed AIR.(SA).No.99 of 2018 under Section 18 of the SARFAESI Act, before the DRAT, Chennai. In the said proceedings, I.A.No.234 of 2018 has been filed for waiver of pre deposit of 50% of the amount due. By order dated 15.03.2018, DRAT, Chennai, has directed the petitioners to deposit a sum of ₹ 70 Crores. Challenging the said order of DRAT, the present Writ Petition has been filed by the petitioners. 16. Heard the learned counsel for the petitioners and the learned counsel for the respondents, and perused the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. Provided that different fees may be prescribed for filing an appeal by the borrower or by the 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) ..... ..... ..... ..... ..... ..... It is very clear from the above provision that it refers to any Order and the question of distinguishing that an order which is a nullity will not come within the purview of the provision is nothing but a fanciful imagination. 22. The above provision clearly recognises the right of a person, who is aggrieved by any order passed by DRT under Section 17, to prefer an appeal within 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount claimed by the respondent bank is around ₹ 229,52,99,307.86. DRAT while considering I.A. filed, seeking waiver of pre deposit under Section 18, has exercised such discretion and ordered the petitioners to make pre deposit of ₹ 70 crores, giving time for paying the said amount in two equal installments. 26. Once the statute provides certain conditions, the same shall be followed strictly. In other words, what is not provided under the statute, cannot be claimed as a matter of right by anyone, and therefore, the claim of the petitioners herein, seeking 100% waiver, would certainly go contrary to the provision, Section 18 of the SARFAESI Act 2002. Even taking for granted that the grounds raised by the petitioners, as to whether the order passed by DRT, is sustainable or not, which can be tested before the DRAT, Chennai, by adhering to the condition to be complied with under Section 18, wherein, the appellant has to make a pre deposit of ₹ 50% for entertaining an appeal or an amount not less than 25% of the amount claimed or determined by the Tribunal, as the case may be. 27. It could be seen from the material on record that as against claim of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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