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TMI Blog2021 (10) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... s the provisions of section 18 of the SARFAESI Act, it would be necessary to refer to the decision of the Supreme Court in case of Parsn Medicinal Plants Private Limited and others v. Indian Bank and others [ 2011 (2) TMI 1632 - SUPREME COURT] which is also considered by the Chhattisgarh High Court wherein the Apex Court on concession being given by the bank, permitted the Appellate Tribunal to hear the matter on merits on all the questions of law after giving credit of the amount realised by the bank on sale of the assets from the total outstanding dues. In the facts of the case, therefore, it would be in the interest of the petitioners to consider the amount outstanding as on the date when the petitioners filed the appeal before the DRAT, as only dispute is with regard to the debit of unapplied interest to the tune of Rs. 6,57,94,643.25 by the respondent bank after giving credit of the amount realised on sale proceeds of more than Rs. 12 crores from the outstanding dues payable by the petitioners. The debts due as claimed by the bank or financial institutions would be the amount outstanding to be paid by the borrower at the time of filing of the appeal before DRAT. On perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajmudar appearing for the applicants submitted that the applicant could deposit only Rs. 25 lakhs out of Rs. 1,25,00,000/- to be deposited and, therefore, this application is preferred with a prayer to extend the time to deposit the remaining amount of Rs. 1,00,00,000/- on or before 12th November, 2021. 4. Mr. Majmudar has also tendered an additional affidavit on behalf of the petitioners filed on behalf of the petitioners, wherein following averments are made : (1) It is submitted that vide order dated 16.09.2021, this Hon ble Court has been pleased to issue Notice upon respondents making it returnable on 20.10.2021 and has further been Pleased to direct the parties to maintain status quo with regard to the properties of petitioners and with regard to further proceedings before the Hon ble DRAT, Mumbai on condition that the petitioners shall deposit an amount Rs. 1,25,00,000/- before the DRAT, Mumbai within Four Weeks. (2) It is submitted that inspite of intensive efforts, petitioners could gather and arrange for an amount of Rs. 25,00,000/- only out of Rs. 1,25,00,000/ and the said amount of Rs. 25,00,000/-has been deposited with Registry of Hon'ble DRAT, Mumbai on 13.10.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% of the amount to be deposited by the borrower for entertaining the appeal preferred before DRAT in terms of second proviso to section 18(1) of the SARFAESI Act, is 50% of the amount of debt due from him as claimed by secured creditor in the notice under section 13(2) of the SARFAESI Act and never beyond. It was therefore, submitted that the DRAT could not have asked the petitioners to pay 50% which can be reduced upto 25% as per the third proviso of section 18(1) of the SARFAESI Act of the amount which was payable by the petitioners as per the bank statement when the petitioners preferred the appeal before the DRAT. 7. Learned advocate Mr. Majmudar referred to the notice under section 13(2) of the SARFAESI Act issued by the respondent bank and submitted that as per the said notice, outstanding balance as on 29th October, 2017 is reflected as Rs. 14,68,58,662.66 and therefore, the amount reaslised by the bank on auction of the property of more than Rs. 12 crores is to be reduced from the outstanding dues as per the notice under section 13(2) of the SARFAESI Act and the petitioners are required to make payment of 50% or 25% of the balance amount only. 8. On the other hand learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debt Recovery Appellate Tribunal, Mumbai (in brief, DRAT ), vide order dated 30.07.2021 passed in IA No. 45 of 2021 in Appeal No. 7 of 2021, directed the Petitioner to deposit 25% of Rs. 11,46,43,271/- on or before 13.09.2021 in the form of Demand Draft with the Registrar of the DRAT for entertaining the appeal, failing which the appeal shall stand dismissed automatically. 3.1 It was submitted that the amount claimed by the Secured Creditor on 19.06.2021 and as recorded by the DRAT i.e. 11,46,43,271/- is not true and correct, as the said amount includes the recovery of Rs. 6,57,94,643.25/- which is reflected in the statement of the Bank produced at Page No. 201, Annexure-H without any reference. 3.2 Learned Advocate Mr. Majmudar submitted that the petitioner is ready and willing to deposit a lump-sum amount of Rs. 1,25,00,000/- which is almost being the 25% of Rs. 4,88,48,628.66/-, excluding the aforesaid amount of Rs. 6,57,94,643/- debited by the Bank on 31.03.2021, within the period of four weeks from today. 4. Learned Advocate Mr. Bhaskar Sharma appearing for the Respondent-Bank submitted that the DRAT has rightly passed the order reducing the mandatory deposit of 50% of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page no.201 in the SCA which is undisputed wherein Rs. 11,46,43,271/-as claim of the Respondent no.2 being outstanding amount is mentioned. It is most humbly submitted that Petitioners are liable to deposit 25% of Rs. 11,46,43,271/- i.e. Rs. 2,86,60,817.75/- vide order dated 30.07.2021 passed by the Hon'ble Debts Recovery Appellate Tribunal, Mumbai is proper and in accordance with law. 17. Referring to the above averments, it was submitted that as per the provisions of section 18 of the SARFAESI Act, there is a mandatory provision to deposit at-least 25% of the amount. It is therefore, necessary to refer to the provisions of section 18 of the SARFAESI Act which reads as under : 18. Appeal to Appellate Tribunal. (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued under section 13(2) of the SARFAESI Act. 21. However, on analysis of provisions of section 2(ha) of the SARFAESI Act read with section 2(g) of the RDB Act as well as the provisions of section 18 of the SARFAESI Act, it would be necessary to refer to the decision of the Supreme Court in case of Parsn Medicinal Plants Private Limited and others v. Indian Bank and others reported in (2011) 15 Supreme Court Cases 253 which is also considered by the Chhattisgarh High Court wherein the Apex Court on concession being given by the bank, permitted the Appellate Tribunal to hear the matter on merits on all the questions of law after giving credit of the amount realised by the bank on sale of the assets from the total outstanding dues. 22. In the facts of the case, therefore, it would be in the interest of the petitioners to consider the amount outstanding as on the date when the petitioners filed the appeal before the DRAT, as only dispute is with regard to the debit of unapplied interest to the tune of Rs. 6,57,94,643.25 by the respondent bank after giving credit of the amount realised on sale proceeds of more than Rs. 12 crores from the outstanding dues payable by the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due from the borrower means the debt as per section 2(g) of the RDB Act which means liability inclusive of interest which is claimed by the secured creditors which means liability of the borrower to be recovered by the secured creditor. Therefore, in my opinion, it cannot be the amount referred to in the notice under section 13(2) of the SARFAESI Act because the amount which is referred to in notice under section 13(2) of the Act is the amount which is outstanding as on date when such notice was issued when the account has become Non Performing Asset (NPA) account which is not the debt as defined under section 2(g) of the RDB Act. The debt which is defined under section 2(g) of the RDB Act is the liability inclusive of interest which is claimed by the bank. The claim of the bank would be the debt which the petitioners are required to pay means the outstanding dues as per the accounts with the bank and not as per the notice issued by the bank under section 13(2) of the SARFAESI Act. 26. In such circumstances, the amount which is outstanding as per the accounts of the bank would be material which can be claimed by the bank against the petitioners and therefore, the Tribunal has rig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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