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2021 (2) TMI 1251 - SC - Insolvency and BankruptcyMaintainability of appeal - requirement of pre-deposit - permission to respondents No. 1 and 2 herein to prosecute the appeal before the Debts Recovery Appellate Tribunal (DRAT) without predeposit of a portion of the debt determined to be due - validity of this order of High Court of Delhi - HELD THAT:- On perusal of Section 21 of the RDBA, which employs the phrase “appeal shall not be entertained” indicates that it injuncts the Appellate Tribunal from entertaining an appeal by a person from whom the amount of debt is due to the Bank, unless such person has deposited with the Appellate Tribunal, fifty percent of the amount of debt so due from him as determined by the Tribunal under Section 19 of the Act. The proviso to the said Section, however, grants the discretion to the Appellate Tribunal to reduce the amount to be deposited, for reasons to be recorded in writing, but such reduction shall not be less than twenty-five per cent of the amount of such debt which is due. Hence the pendulum of discretion to waive pre-deposit is allowed to swing between fifty per cent and twenty-five per cent of the debt due and not below twenty-five per cent, much less not towards total waiver. It is in that background, keeping in perspective the said provision, the DRAT has in the instant case ordered deposit of fifty per cent of the amount. A total waiver would be against the statutory provisions. However, in the instant case, taking note that though the issue relating to the actual amount due is to be considered by the DRAT, keeping in view the fact that the DRT has taken into consideration the earlier settlement and has accordingly decreed the claim to that extent and towards such decree since payment of a major portion is made, though by appropriation of the compensation amount and admittedly since the remaining properties belonging to respondent No.3 is available by way of mortgage and the respondents No.1 and 2 are the personal guarantors, it is deemed appropriate that in the peculiar facts and circumstances of this case to permit the predeposit of twentyfive per cent of the amount as taken note by the DRAT i.e. twenty five per cent of ₹ 68,18,92,841/-. To the said extent, the order dated 27.02.2019 passed by the DRAT on IA No.511 of 2018 is liable to be modified. The order dated 27.02.2019 passed by the DRAT, Delhi is modified. The respondents No. 1 and 2 are permitted to deposit twenty-five per cent of ₹ 68,18,92,841/- and prosecute the Appeal No.311 of 2018, subject to such deposit being made within 8 weeks, failing which the appeal shall not subsist in the eye of law - appeal allowed in part.
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