Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 136 of 2019 Appellant :- Pradeep Tekriwal And Another Respondent :- Debt Recovery Appellant Tribunal And Another Counsel for Appellant :- Deepak Kumar Jaiswal,Sanjay Kumar Gupta Counsel for Respondent :- Ashish Agrawal
Hon'ble Pankaj Mithal,J. Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Deepak Kumar Jaiswal, learned counsel for the petitioner-appellants and Sri Ashish Agrawal, learned counsel who has accepted notice on behalf of respondent no.2.
2. There is a delay of 72 days in filing the appeal. It has been adequately explained.
3. We are satisfied that the appellants were prevented by sufficient cause for filing the appeal in time.
4. Accordingly, the delay is condoned.
5. The delay condonation application no.1 of 2019 is allowed.
6. This appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is directed against the order dated 24.10.2018 passed by the writ court dismissing the writ petition of the petitioner-appellants against the order dated 10.05.2018 passed by the Debt Recovery Appellate Tribunal.
7. The office has reported that the special appeal is not maintainable.
8. Sri Ashish Agrawal, learned counsel appearing for respondent no.2 also took objection that the appeal is not maintainable as it is directed against the judgement and order of the writ court in respect of an order of the Tribunal purported to have been passed in exercise of jurisdiction under the State Act/Central Act.
9. In this regard, reliance has been placed upon a Division Bench decision of this Court in Vajara Yojna Seed Farm & Ors. Vs Presiding Officer, Labour Court II & Ors 2003 (1) UPLBEC 496.
10. In the aforesaid case, the Division Bench, after construing the provision of Chapter VIII Rule 5, held that the remedy of special appeal stands excluded against a judgement and order of a Single Judge, made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgement, order or award of a Tribunal, Court or statutory arbitrator made in exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or any Central Act, with respect to any of the matters enumerated in State List or Concurrent List. In other words, the judgement or order of the Single Judge passed in exercise of jurisdiction under Article 226/227 of the Constitution of India against any judgement, order or award of the Tribunal in exercise of jurisdiction under the State Act or the Central Act in relation to matters enumerated in the State List or the Concurrent List is not appellable by way of intra-Court appeal.
11. A plain reading of the Rules of the Court indicates, no intra- Court appeal (Special Appeal) lies under Chapter VIII, Rule 5 of the Rules of the Court against an order of a learned Single Judge that had been passed in exercise of jurisdiction under Article 226/227 of the Constitution of India arising from an award or order of a Tribunal, Court or statutory authority even if made in purported exercise of a State Act or a Central Act, if the legislation (under which such award or order had been passed), had been enacted either by the State legislature or the Parliament with reference to any entry of either the State List or the Concurrent List i.e. Lists II & III of Schedule 7 of the Constitution of India.
12. The order of the Debt Recovery Appellate Tribunal dated 10.05.2018 which was impugned in the writ petition was not in respect of any matter enumerated in the State List or Concurrent List rather it is a matter covered by Entry 45 of the Union List i.e. 'banking'.
13. In view of the above, the special appeal against the impugned order does not stand excluded. This is also the view which has been taken by a Division Bench in an interlocutory order dated 11.04.2013 passed in Special Appeal No. 552 of 2013 (Ballia-Etawah Gramin Bank & Another Vs Dr. Ramji Singh Properties & Hotels P. Ltd. & 6 Ors.), wherein it has been observed that with respect of the matters enumerated in the State List or Concurrent List alone the special appeal stands excluded.
14. Paragraph 64 VI in Vajara Yojana Seed Farm & Ors. Vs Presiding Officer, Labour Court II & Ors (supra), also refers to exercise of appellate jurisdiction by a Tribunal with respect to any matter enumerated in the State List or Concurrent List under any State or Central Act. The said clause of the aforesaid decision, in fact, refers to appellate or revisional jurisdiction exercised under the State/Central Act in respect of matters enumerated in State List or Concurrent List not with respect of matters covered by the Union List.
15. In view of the aforesaid facts and circumstances, the objection that the special appeal is not maintainable in the present case, is overruled and the appeal is held to be maintainable.
16. The Debt Recovery Appellate Tribunal by the order dated 10.05.2018 rejected the waiver application filed by the petitioner-appellants to waive the precondition of deposit of 50% of the amount due as a pre-condition to entertain the appeal under Section 18 of the Securitization & Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as the "SARFAESI Act"). The aforesaid order was challenged by the petitioner-appellants by means of a writ petition and the same has been dismissed by the impugned order dated 24.10.2018.
17. The submission of learned counsel for the petitioner- appellants is that none of the authorities has considered the merits of the appeal of the petitioner-appellants in rejecting the waiver application.
18. The second proviso to sub-section (1) of Section 18 of the SARFAESI Act lays down that no appeal shall be entertained unless the borrower has first deposited with the Appellate Tribunal 50% of the amount due from him as claimed by the secured creditor or determined by the Debt Recovery Tribunal. However, the Debt Recovery Appellate Tribunal, for reasons to be recorded in writing reduce that amount to not less than 25% of the debt referred to earlier. The petitioner-appellants in the application for waiver had not assigned any reason whatsoever to waive the condition of deposit of 50% of the amount so as to reduce it to 25%. The Debt Recovery Appellate Tribunal rejected the waiver application by observing that the petitioner- appellants had neither pleaded nor argued on the aspect that they deserve any relaxation or reduction in the amount of predeposit as provided under Section 18 of the SARFAESI Act. The writ court also in dismissing the petition held that there is no infirmity or illegality in the order impugned order so as to enable the Court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India.
19. It is pertinent to mention here that the Apex Court in the case of Narayan Chandra Ghosh Vs. UCO Bank & Ors., (2011) 4 SCC 548, while considering the scope of Section 18 of the SARFAESI Act, held that there is an absolute bar to the entertainment of an appeal under Section 18 of the SARFAESI Act unless the condition precedent as stipulated therein is fulfilled i.e. unless the borrower makes with the Appellate Authority pre-deposit of statutory amount.
20. In view of the aforesaid facts and circumstances especially when there were no pleadings so as to give any reasons for grant of relaxation in the deposit of 50% of the amount coupled with the fact that no such argument was advanced before the Debt Recovery Appellate Tribunal for the purpose of waiver, we are of the view that the learned Single Judge has not committed any error in dismissing the writ petition.
21. In view of the above, the appeal as such is devoid of merit, and is accordingly, dismissed.
Order Date :- 21.2.2019 S.Chaurasia