1. Rule.
Expedited.
2. The main prayer of the appellant is that "the Hon'ble D.R.A.T. may be pleased to waive the condition of deposit of the alleged amount of debt and/or in the alternative be pleased to postpone the hearing of the application for waiver of deposit till disposal of the SLP No. 30098/2011 which is pending before Hon'ble Supreme Court of India and/or may be pleased to entertain the above Misc. Appeal filed by the appellants".
3. Learned counsel for the petitioner Mr. Ashok L. Shah has urged that second proviso to Subsection (1) of Section 18 does not apply to the facts of their case and question of waiver also would not apply. Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 reads as under :
"Section 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 with such fee, as may be prescribed] to the 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 in the second proviso.
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 thereunder."
4. Learned counsel for the petitioner has contended that Tribunal has committed serious error while passing the order which is as under : -
"M.A.
No. 880/2011 i.e. application for waiver is dismissed. However, the appellants is allowed eight weeks time from today to deposit the amount as claimed by the secured creditor in its notice issued under Section 13(2) of the SARFAESI Act, 2002 to entertain the appeal. In case the Appellants fail to make any deposit within the time allowed by this Appellate Tribunal, the appeal shall not be entertained."
5. Learned counsel for the petitioner has contended that the observations made by Hon'ble Supreme Court of India in Special Leave to Appeal (civil) No. 30098/2010 which is as follows :
-
"Accordingly the Special Leave Petitions are dismissed, leaving the question of law raised by Dr. Dhawan, in regard to the interpretation of expression "whichever is less" occurring in the second proviso to Section 18, is kept open."
6. The word whichever is less is not decided by the D.R.T. or by the Appellant Tribunal. In view of the interpretation of the words 'whichever is less', the decision taken the Appellant Tribunal by dismissing the appeal is contrary to law.
7. The contention raised by learned counsel for the petitioner requires consideration. At the same time to test the bonafide of the petitioner, the court has given a suggestion to Mr. A.L. Shah to pay 50% of the principal loan amount for continuation of interim relief during the pendency of the petition, the same was not acceptable to petitioner. The principal amount is huge amount of 40 crores, therefore, only with a view to avoid repayment legal contention is raised.
8. In my view no discretion is required to be exercised in favour of the petitioner. Interim relief refused. It is clarified that proceedings before DRT is not stayed by this court nor any order of D.R.T is stayed.
(K.S.
Jhaveri, J.) Amar Top