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2016 (3) TMI 382 - BOMBAY HIGH COURTDetermination of amount deposited under SARFAESI Act - what sum (claimed by the secured creditor) is to be taken into consideration by the DRAT whilst determining the amount that ought to be deposited by the borrower under section 18 of the SARFAESI Act (before its appeal can be entertained)? - whether the DRAT was justified in ordering the Petitioner to deposit a sum of ₹ 20,00,000/-? - Held that:- Section 13(2) notice issued by the Respondent – Bank to the Petitioner was dated 14th August, 2007. In the said notice the amount claimed as due from the Petitioner was ₹ 96,14,085.61 together with future interest. From the date of the section 13(2) notice (i.e. 14th August, 2007) to 28th February 2012, admittedly no payments were made by the Petitioner. As on 29th February, 2012 the outstanding dues owed by the Petitioner along with the interest accrued thereon came to ₹ 1,65,36,770.61. On the very same date (i.e. 29th February, 2012), the Respondent – Bank forfeited the deposits of the Petitioner lying with it in the sum of ₹ 5,29,441/-and gave credit for the same in the loan account. Thereafter, one of the guarantors (viz. Mr K.P. Malkani) sold one of the mortgaged properties with the consent of the Respondent – Bank and the sale proceeds thereof to the tune of ₹ 1,18,00,000/- were deposited with the Respondent – Bank on 24th March, 2012. After giving due credit for the aforesaid amounts (Rs.5,29,441/- plus ₹ 1,18,00,000/-), the amount outstanding as on 24th March, 2012 was ₹ 52,24,200.16. Admittedly, no further payments were made by the Petitioner. The DRAT has taken into consideration this figure of ₹ 52,24,200/- for determining the amount that had to be deposited under the 2nd proviso to section 18(1) of the SARFAESI Act. It is pertinent to note that the appeal and the waiver application preferred by the Petitioner before the DRAT, were filed on 4th March, 2010. On the said date, the outstanding of the Respondent – Bank was in excess of ₹ 96,14,085/- as no payments were made by the Petitioner between the date when the section 13(2) notice was issued (14th August, 2007) and the date of filing of the appeal and waiver application (4th March, 2010). However, this waiver application was heard by the DRAT on 30th June 2014. By the time, the DRAT heard the waiver application, the Petitioner had made part payments of ₹ 1,23,00,000/- (approximately) towards its debt due to the Respondent - Bank. It is in this view of the matter that the DRAT whilst determining the amount to be deposited under the 2nd proviso to section 18(1) of the Act took into consideration the figure of ₹ 52,14,200/-. Looking to these facts and the clear language of the 2nd proviso to section 18(1) of the SARFAESI Act, we do not think that the DRAT committed any error in directing the Petitioner to deposit a sum of ₹ 20,00,000/- with the Registry of the Appellate Tribunal within a period of eight weeks from the date of the said order in two equal installments. We find that the said order is not only in conformity with the provisions of section 18 of the SARFAESI Act but does complete justice between the parties as it gives credit for the amounts paid by the Petitioner to the Respondent – Bank before directing the Petitioner to deposit a sum of ₹ 20,00,000/- as a condition precedent to entertaining its appeal. In this view of the matter, we do not think that any case has been made out by the Petitioner for review of our order dated 10th June, 2015. No illegality and / or perverse in order dated 30th June, 2014 passed by the DRAT. Consequently, we do not find any error in our dated 10th June, 2015 requiring interference in review jurisdiction. The Review Petition is accordingly dismissed.
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