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TMI Blog2018 (11) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, directed the petitioner to deposit a sum of Rs. 3,101 Crore on or before 25.04.2018 and observed that in case of failure in compliance, the appeal will be liable to be dismissed automatically. This order dated 28.03.2018 has been challenged by the petitioner in W.P.No.16351/2018. 3. The petitioner filed another application before the DRAT, being I.A.No.430/2018, seeking enlargement of time for making the deposit as fixed by the order dated 28.03.2018 with the submissions that the said order was under challenge in this Court. The DRAT, by its order dated 25.04.2018, dismissed the said application while observing that 'there remain no substance in prayers made in appeal or in restoration or delay condonation whatsoever'. This order dated 25.04.2018 has been challenged by the petitioner in W.P.No.22111/2018. The relevant facts and background: 4. Shorn of unnecessary details, the relevant facts and background aspects of the matter could be taken in comprehension as follows: (a) The respondent No.13-Kingfisher Airlines Ltd., a Public Limited Company incorporated under the Companies Act, 1956 and now under liquidation, (hereafter also referred to as 'Kingfisher Airlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Breweries (Holdings) Ltd., respondent No.15-Kingfisher Finvest (India) Ltd., and the petitioner-Dr.Vijay Mallya, jointly and severally liable for the recovery of the said sum of Rs. 6203,35,03,879.42 with interest at the rate of 11.50% with yearly rests, from the date of Application until the date of complete realisation. Other consequential reliefs were also granted. (e) The petitioner-Dr.Vijay Mallya, aggrieved by the aforesaid order of the DRT, preferred an appeal before the DRAT on 04.10.2017 under Section 20 of the Act of 1993 and the same was registered as AIR No.605/2017. After scrutiny, the registry of DRAT notified certain objections in the Memo of Appeal so filed by the petitioner. The objections having not been complied with, the appeal came to be dismissed by the order dated 02.01.2018 for non-prosecution. (f) On 05.03.2018, the petitioner filed an application seeking restoration of the appeal with another application for condonation of delay in filing the restoration application. The petitioner claims that thereafter, i.e., on 21.03.2018, he had complied with the office objections raised in the main Appeal. (g) While dealing with the applications so moved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) The respondent Nos.14 & 15 having deposited a sum of about Rs. 1,280 Crore under the very same loan transaction with the Registry of this Court in terms of various orders in various other proceedings initiated by the respondent-Banks, the DRAT is not justified in insisting upon the petitioner to deposit a sum of Rs. 3,101 Crore and that too, when all the properties of the petitioner are under attachment by orders of the Courts in India and U.K. in connected/collateral proceedings. The DRAT ought to have evaluated both the elements of (a) prima facie, case and (b) of financial hardship, in view of the decision in Sterlite Technologies Ltd. v. Union of India [2012] 2 Mh. LJ 112. (c) The DRAT having had the discretion to grant complete waiver of pre-deposit under the unamended Section 21 of the Act of 1993, ought to have granted such waiver in view of the fact that petitioner's all the properties in India and abroad, have been subject to freezing order by the Courts in India and U.K. The DRAT having not adverted to this important fact, has made the impugned orders, which amount to the DRAT's refusal to exercise discretion when the same was warranted by the factual matri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Board of Control for Cricket in India v. Cochi Cricket (P.) Ltd. 2018 SCC Online SC 232. (c) The contention that the Borrowers and the Guarantors have already deposited a considerable amount in the Registry of this Court in terms of various orders in various proceedings instituted by the respondent-Banks under the very same loan transactions, apart from being untrue, is legally untenable. The said argument is liable to be rejected for lacking in material particulars such as what sums of money, by which order of the Court, arising from which case and by whom are deposited in this Court. This apart, these contentions were not urged before the DRAT. (d) The contention that the requirement of pre-deposit of 50% of the decreetal sum virtually amounts to unreasonably whittling down the petitioner's substantive right of appeal by the course of procedure adopted by the DRAT, is legally untenable; the Parliament in its legislative wisdom has granted the right of appeal subject to conditions and the DRAT has, in the sound exercise of its discretion, made the impugned order requiring the pre-deposit for entertaining the appeal. This apart, a little before the DRT passed the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 01.09.2016. By such amendment, the quantum of the amount of pre-deposit has been reduced to 50% in place of 75%; and the power of DRAT to waive has been restricted to the extent of 25%. 9. The provisions of Section 21 of the Act of 1993, before and after amendment, could be taken note of as follows: Before amendment After amendment 21.Deposit of amount of debt due, on filing appeal.- Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent. of the amount of debt so due from him as determined by the Tribunal under section 19: Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. 21. Deposit of amount of debt due, on filing appeal.- Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of law results in replacement by the new provision when new words are substituted in place of existing ones; therefore, the amended provision should be read as if it existed from the inception of the enactment. The Supreme Court in the case of Shamrao V Parulekar v. District Magistrate AIR 1952 SC 324 has expounded on these principles as under:- ".....the Rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity), as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all......" 13. The question whether an amendment by way of substitution would have retrospective effect had fallen for consideration of the Full Bench of this Court in the case of Hassan Co-operative Milk Producers Societies Union Ltd. v. State of Karnataka Department of Co-operative Societies ILR 2014 KAR 4257. The Court, after considering a catena of decisions, has ruled that such ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted the discretion to reduce the requirement of pre-deposit not below 25% of the decreetal sum. Thus, admittedly, even after amendment, the substance of the proviso to Section 21 is retained and what is trimmed is the condition subject to which the right of appeal is to be exercised. The trimming of condition, in essence, relates to the law of procedure, which is normally retrospective in operation. Therefore, the contention of the petitioner that the amendment is prospective in effect, is not well founded. 15. The decision in the case of Ramesh Singh (supra) concerning the change of Scheme of the Motor Vehicles Act, 1939 in the new Act of 1988, whereunder the condition of pre-deposit was inserted for the first time has no application to the questions involved in the present case, as therein, the condition of pre-deposit was not existing in the old enactment and the new Act did not expressly or by necessary implications make the relevant provisions retrospective; and further, Section 217(4) of the new Act preserved general application of Section 6 of the General Clauses Act. The said decision, in our view, would not apply to the different Scheme of the Act of 1993 and the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in the absence of relevant material cannot form any opinion as to the effect of the deposits allegedly having been made in the Registry of this Court. Even assuming that the said contention is true, the same does not amount to compliance of the statutory condition of pre-deposit, regard being had to the whoppingly huge amount due under the impugned order of the DRT. 18. The next contention of the petitioner that all his properties and moneys have been under attachment/freezing orders of Courts in India and in U.K, does not avail to him. The DRT made the money decree on 19.01.2017. As per the material placed on record, in the meantime, the petitioner is said to have received US$ 40 million from Diageo (approximately above Rs. 260 crores). The Commercial Court in U.K in its freezing order dated 16/17.04.2018 has further mentioned that the petitioner had bought a Ferrari 246 GTS with an estimated value of GBP 4,80,000 (approximately Rs. 4,17,60,000/-); he had entered into a Hire Purchase Agreement dated 12.08.2016 which records a payment of GBP 1,35,000 (approximately Rs. 1,17,45,000/-). As on the date of passing of the order by the DRT, there was no Freezing Injunction Order by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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