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2015 (12) TMI 573 - High Court Of Andhra Pradesh

2015 (12) TMI 573 - High Court Of Andhra Pradesh - TMI - SARFAESI Act - proceedings initiated by the 2nd respondent-bank herein, under Section 13(4) of the SARFAESI Act, against the scheduled property - whether the procedings are void, illegal and arbitrary - petitioners seeking a writ of mandamus to direct the 2nd respondent-bank to give a valid discharge of the liability over the scheduled property; and to deliver the documents/execute a sale deed in favour of the petitioners - Held that:- a p .....

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activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondents service with the Bank stands terminated. The action of the Bank was challenged by the resp .....

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hts of the banks in any manner whatsoever. As this finding is binding inter-parties, this question could not have been re-agitated before the Division bench and the Division Bench ought not to have re-examined this question to hold that the sale in favour of the petitioners was void ab initio in view of the interdict contained under Section 13(13) of the SARFAESI Act. To the extent the Division bench, examined this question, in a subsequent proceeding inter-parties, the order under review suffer .....

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ent that the petitioner has been relegated to the remedy of a statutory appeal, under Section 18(1) of the SARFAESI Act, the review petition fails and is, accordingly, dismissed. - Review WPMP No.25025 of 2014 in W.P.No.35413 of 2013 - Dated:- 16-11-2015 - Sri Ramesh Ranganathan And Sri M.Satyanarayana Murthy, JJ For the Petitioner : Sri Krishna Murthy and Smt. Ch. Vedavani For the Respondent : Sri K.V. Subramanya Narusu. ORDER Sri Ramesh Ranganathan This petition is filed seeking review of the .....

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the 2nd respondent-bank herein, under Section 13(4) of the SARFAESI Act, against the scheduled property as void, illegal and arbitrary; to direct the 2nd respondent-bank to give a valid discharge of the liability over the scheduled property; and to deliver the documents/execute a sale deed in favour of the petitioners. In its order, in S.A. No.97 of 2009 dated 20.09.2013, the Debts Recovery Tribunal observed that the petitioners had challenged the action of the 2nd respondent-bank in invoking th .....

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erty as ownership was not conveyed in their favour; they had no absolute right over the property by virtue of the agreement of sale dated 31.12.2007; and they were not entitled to challenge the proceedings of the 2nd respondent-bank, when proceeding against the scheduled property by invoking the provisions under the SARFAESI Act, because of the default committed by the borrowers in servicing their loan account as they were due a large sum of money to the 2nd respondent-bank. While dismissing S.A .....

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urisdiction of this Court under Article 226 of the Constitution of India; secondly, whether the agreement of sale, obtained by the petitioners from respondents 8 and 9, is hit by Section 13(13) of the SARFAESI Act? and, if so, whether the petitioners were entitled to challenge the proceedings initiated by the 2nd respondent-bank under the Recovery of Debts due to the Banks and Financial Institutions Act, 1993, and under the SARFAESI Act?; and thirdly, whether the petitioners were entitled to cha .....

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in W.P. No.35413 of 2013 dated 23.06.2014 necessitates review, it is necessary to examine the scope of enquiry in review proceedings. Nothing in Article 226 of the Constitution precludes a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave palpable errors committed by it. (Shivdeo Singh v. State of Punjab AIR 1963 SC 1909; State of Rajasthan v. Surendra Mohnot (2014) 14 SCC 77). A review of a j .....

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of the order, undermines its soundness or results in miscarriage of justice. (Kamlesh Verma4; Col. Avtar Singh Sekhon v. Union of India (1980) Supp SCC 562 ). Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. Such error is an error which is a patent error and not a mere wrong decision. (T.C. Basappa v. T. Nagappa AIR 1954 SC 440 ; Kamlesh Verma4). It is essential that it should be something more than a mere error; .....

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.K. Madhavi v. Kotak Mahindra Bank Ltd, Vijayawada 2012 (5) ALD 537 (DB) which in turn followed the judgment of the Supreme Court in Federal Bank Limited v. Sagar Thomas AIR 2003 SC 4325 , held that the 2nd respondent (ING Vysya Bank Limited) was a private bank, and a bank within the meaning of Section 2[c] read with Section 6 of the SARFAESI Act; a private bank does not perform public functions merely by providing banking services; the 2nd respondent-bank was not a State within the meaning of A .....

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Tribunal were parties, the substantive relief was claimed only against the 2nd respondent- bank; the other parties were proforma parties impleaded to avoid procedural difficulties; and applying the law, and the principles laid down in Federal Bank Ltd9, the Writ Petition was not maintainable, under Article 226 of the Constitution of India, against a private bank i.e. ING Vysya Bank Limited. Sri Krishna Murthy, Learned Counsel appearing on behalf of the petitioners, would submit that, even if th .....

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d respondent-bank for any action taken by them contrary to the provisions of the SARFAESI Act and the Rules made thereunder; Section 13 of the SARFAESI Act enables the banks to exercise statutory power; Rule 8 of the SARFAESI Rules, and Rule 3 in Schedule-II of the Income Tax Act, are statutory provisions which necessitate compliance; the SARFAESI Act makes no distinction between a public sector bank and a private sector bank in the case of a non-performing asset; even otherwise, the order under .....

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as not maintainable against the 2nd respondent-bank. Learned Counsel would rely on Mardia Chemicals Ltd v. Union of India AIR 2004 SC 2371 = (2004) 4 SCC 311 ; Edara Haribabu v. District Collector-cum-Presiding Officer2015(1) ALD 595 ; Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal AIR 1961 SC 182 ; and M/s. East India Commercial Co. Ltd v. Collector of Customs, Calcutta AIR 1962 SC 1893. On the other hand Sri K.V. Subramanya Narusu, Learned Counsel for the 2nd respondent bank, would .....

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ution, does not necessarily belong to the public law field. A company/society, which is a 'State', may have its private law rights just like the Government. A contractual obligation, which is not statutory, cannot, ordinarily, be enforced by way of a writ petition under Article 226 of the Constitution. (Sri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju (FB) AIR 1990 A.P. 171 ). It is no doubt true that the 2nd respondent-bank is not an instrumentality of the State within .....

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ion or certiorari, are divided into two main categories. First, the persons or bodies who have legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. Second, the persons or bodies who are entrusted by Parliament with functions, powers and duties which involve the making of decisions of a public nature. (Sri Konaseema Co- operative Central Bank Ltd.14; The Closing Chapter" : Lord Denning; R. v. Electricity Commissio .....

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ent, the public in the locality who are the beneficiaries of what is protected by public law and it is the individuals or bodies entitled to the rights who are the beneficiaries of the protection provided by private law. ("Public Law Private Law : Why the Divide? A personal View (published in "Public Law" Summer : (1986)" : Sir Harry Woolf; Sri Konaseema Co-operative Central Bank Ltd.14). While public law deals only with public bodies, this does not mean that the activities o .....

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Co-operative Central Bank Ltd.14). The bodies to which the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of the subjects who may have to submit to their jurisdiction. (R. v. National Joint Council for Dental Technicians, ex parte Neate ; Sri Konaseema Co- operative Central Bank Ltd.14). Every body which is created by a statute, and whose powers and .....

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osing Chapter": Lord Denning; Tozer v. National Greyhound Racing Club Ltd. ). These categories are not exhaustive. The Court has been extending them to any other person or body of a public nature exercising public duties which it is desirable to control by the remedy of judicial review. (Sri Konaseema Co-operative Central Bank Ltd.14; The Closing Chapter" : Lord Denning). While private law functions, of a private body corporate, cannot be subjectd to challenge in proceedings under Arti .....

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by the Debts Recovery Tribunal in S.A.No.97 of 2009 dated 20.09.2013. The Debts Recovery Tribunal is a statutory body created, by the Central Government, under Section 3(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and its jurisdiction can be invoked by any person aggrieved under Section 17 of the SARFAESI Act, 2002. The Debts Recovery Tribunal is a statutory Tribunal, and its orders can be corrected in certiorari proceedings under Article 226 of the Constitutio .....

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having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Court exercised in a writ of Certiorari. (The King v. The Electricity Commissioner ; Udit Narain Singh Malpaharia19). In order to establish that certiorari will issue, it is enough to show that the body in question was obliged to act in a judicial manner, in the sense that it was under an express duty to adopt a procedure analogous to a judicial procedure, or that it .....

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Kakatiya Medical College, Warangal ). The ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects, provided always that it has a duty to act judicially. If tribunals are established by Acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics on which the subjection of inferior tribunals to th .....

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ation. This latter case falls within the field of private contract and is within the jurisdiction either of an arbitrator or the civil court. (Harijander Singh21). A writ of certiorari can be issued for correcting errors of jurisdiction committed by tribunals. These are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where, in exercise of the jurisdiction con .....

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e the certiorari jurisdiction of this Court, but had sought a writ of mandamus. A writ of mandamus is a writ which commands a public body to perform a public duty imposed on it by law. A distinction must, therefore, be made between a duty and a mere power. Mandamus is not limited to judicial acts. It will issue at the instance of a person whose legal right is involved and a corresponding statutory obligation is also involved. There must be a legal right existing in the petitioner and a correspon .....

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ompel him to carry out the duty. (Bhopal Sugar Industries Ltd12). A writ of mandamus can also be issued for statutory violation by a private body, including private banks such as the second respondent-bank. In Federal Bank Ltd.9, the 1st respondent, who was working as the branch manager of Federal Bank, was placed under suspension, and disciplinary action was initiated against him. On his being found guilty of the charge, he was imposed the punishment of dismissal from service. The 1st responden .....

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is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any st .....

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ompany though the case of nationalized banks stands on a different footing. There may well be companies, in which majority of the share capital may be contributed out of the State funds and in that view of the matter there may be more participation or dominant participation of the State in managing the affairs of the company. But in the present case we are concerned with a banking company which has its own resources to raise its funds without any contribution or shareholding by the State. It has .....

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lied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If .....

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of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to e .....

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on. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondents service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.. (emphasis supplied) Service conditions of employees in Federal Bank .....

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m the afore-extracted portions of the judgment, is that a Writ Petition, under Article 226 of the Constitution of India, may be maintained against a statutory body or a person or a body under liability to discharge any function under any statute, to compel it to perform a statutory function; in certain circumstances a writ may issue, to such private bodies or persons, as there may be statutes which need to be complied with by all concerned including private companies; in cases where there is no .....

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did not have the force of law; they were in the nature of a contract; and, where a Society could not be characterised as a 'State', the service conditions of its employees, governed by bye-laws, could not be enforced through a writ petition. It is evident, therefore, that service conditions of employees of companies/societies, which are either governed by bye laws or by provisions which do not have the force of law, are in the nature of a contract; and in cases where a company or a soci .....

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was regarding the improper initiation of recovery under the SARFAESI Act and declaration of the loan amount, borrowed by the borrowers, as a Non-Performing Asset. The Division Bench, after referring to several judgments, held that a banking company was a legal entity specialising in banking business; it was required to obtain a licence from Reserve Bank of India, which exercised absolute control and regulation over its banking operations; the rules and regulations, and the guidelines, of Reserv .....

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m public functions by providing banking services. As held by the Division Bench, in B.S.K. Madhavi8, a private scheduled bank is not a State within the meaning of Article 12 of the Constitution of India; and, in providing banking services, it does not perform public functions. Any complaint regarding inadequacy of non-statutory banking services provided by a private bank, including declaring the account of a borrower as a non- performing asset, cannot be questioned in writ proceedings under Arti .....

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ESI Act before the Debts Recovery Tribunal, the petitioners could not defeat the claim of the secured creditor i.e. the 2nd respondent-bank; time and again, the Supreme Court had held that sale of property, in contravention of Section 13(13) of the SARFAESI Act, was invalid; the sale in favour of the petitioners, by respondents 4 to 7, was invalid and hit by Section 13(13) of the SARFAESI Act; and, on the basis of a void agreement, the petitioners were not entitled to claim any preferential righ .....

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r Section 13(13) of the SARFAESI Act; and as the order passed by the Division Bench in W.P. No.27307 of 2011 dated 27.08.2012 is a judgment inter-parties, it is not open to the subsequent Division Bench to take a view contrary thereto. On the other hand Sri K.V. Subramanya Narusu, Learned Counsel for the 2nd respondent bank, would submit that no error of law has been committed by the Division Bench in holding that sale of property, in contravention of Section 13(13) of the SARFAESI Act, is not v .....

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erabad, as illegal, high-handed and without jurisdiction. Before the Division bench, in W.P.No.27307 of 2011, it was contended that the agreement of sale should be declared null and void under Section 13(13) of the SARFAESI Act. The Division bench, in its order in W.P. No.27307 of 2011 dated 27.08.2012, held that an agreement for sale is not prohibited by the said provision and, if at all entered into, that would be subject to the mortgage already created by the borrower in favour of the petitio .....

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17 of the SARFAESI Act. In the opinion of the Division Bench, the remand order was justified. The order of the Division bench, in W.P. No.27307 of 2011 dated 27.08.2012, is a judgment inter-parties and is binding both on the petitioners and the respondents herein. In so far as the parties to a lis are concerned, they will always be bound by the decision of a Court. In other words, either of the parties will not be permitted to reopen the issue decided by such a decision. (Supreme Court Employee .....

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Judgment, on the points decided on fact or of law or of fact and law, is conclusive in every subsequent proceeding between the same parties. (Swamy Atmananda v. Swami Bodhananda AIR 2005 SC 2227; Ishwar Dutt v. Land Acquisition Collector (2005) 7 SCC 190). An order of a Court/Tribunal of competent jurisdiction directly upon a point creates a bar, as regards a plea, between the same parties in some other matter in another Court/Tribunal, where the said plea seeks to raise afresh the very point th .....

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673). In its order in W.P. No.27307 of 2011 dated 28.08.2012, the Division bench held that an agreement of sale was not prohibited by Section 13(13) of the SARFAESI Act; if at all entered into, that would be subject to the mortgage already created by the borrower in favour of the bank; and it could not, therefore, curtail the rights of the banks in any manner whatsoever. As this finding is binding inter-parties, this question could not have been re-agitated before the Division bench in W.P. No. .....

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of the review petitioners. On Point No.3 the Division Bench, relying on the judgments of the Supreme Court in Narayana Chandra Ghosh v. UCO Bank (2011) 4 SCC 548 ; Kanaiyalal Lalchand Sachdev v. State of Maharashtra (2011) 2 SCC 782; United Bank of India v. Satyawati Tandon (2010) 8 SCC 110 ; and Commissioner of Income Tax v. Chhabil Dass Agarwal MANU/SC/0802/2013 , held that, against the order passed by the Debt Recovery Tribunal under Section 17(1) of the SARFAESI Act, an appeal would lie to .....

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under Section 18 of the SARFAESI Act; and they found no ground to grant any relief in the Writ Petition. Sri Krishna Murthy, Learned Counsel appearing on behalf of the petitioners, would submit that existence of an alternative remedy is not a bar for invoking the jurisdiction of the High Court under Article 226 of the Constitution of India; the remedy of an appeal is neither effective nor efficacious; when the Debts Recovery Tribunal had specifically recorded findings contrary to its earlier ord .....

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SARFAESI Act, is effective and efficacious; and the petitioners cannot, without exhausting the alternative remedy, straightaway invoke the extra- ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is not in dispute that, against the order passed by the Debt Recovery Tribunal, in S.A. No.97 of 2009 dated 20.09.2013, the petitioners herein have the remedy of a statutory appeal under Section 18 of the SARFAESI Act. It is no doubt true that existence of an altern .....

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shwabharathi House Building Coop. Society ; (2003) 2 SCC 412 L&T Finance Limited v. Anup Kumar Bera AIR 2014 Calcutta 78 ). While the powers conferred upon the High Court, under Article 226 of the Constitution, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide, and there is no express limitatio .....

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ch the action complained of has been taken, itself contains a mechanism for redressal of grievance. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Chhabil Dass Agarwal35; Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419; Titaghur Paper Mills v. State of Orissa (1983) 2 SCC 433). It is in the discretion of the Court either to entertain a Writ Petition or to relegate the petitioners .....

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of Tripura (1999) 1 SCC 472 ; Shivgonda Anna Patil v. State of Maharashtra (1999) 3 SCC 5 ; C.A. Abraham v. ITO AIR 1961 SC 609 ; Titaghur Paper Mills Co. Ltd.39; Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons (1999) Supp (2) SCC 312 ; Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1 ; Tin Plate Co. of India Ltd. v. State of Bihar (1998) 8 SCC 272 ; Sheela Devi v. Jaspal Singh (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan ((2001) 6 SCC 569 ). Wr .....

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he Constitution, if an effective remedy is available to the aggrieved person, applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. While dealing with such petitions, etc, the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves in as much as they not only contain a comprehensive procedure for .....

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ed, with the Appellate Tribunal, 50% of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less and can reduce the amount to not less than 25% of the debt, does not render the remedy of an appeal ineffective or not efficacious. The right to appeal is a statutory right, and can be circumscribed by the conditions in the grant. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those c .....

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ry provision, creating a right of appeal, the person aggrieved is not entitled to file an appeal. In the absence of any special reasons, there is no legal or constitutional impediment to the imposition of conditions for the exercise of the right to appeal. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant litigant, and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismiss .....

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no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. Deposit, under the second proviso to Section 18(1) of the Act, is a condition precedent for preferring an appeal under the said section. (Narayan Chandra Ghosh32). As the conditions of pre-deposit, under Section 18(1) of the SARFAESI Act, have been upheld by the Supreme Court in Narayana Chandra Ghosh32, it cannot be said that imposition of such a condition would render the remedy of an appeal .....

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