TMI Blog2020 (1) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the borrower from an order passed under Section 17, unless the borrower deposits 50% of the amount of debt due from him, as claimed by the secured creditor or as determined by the DRT, whichever is less. There is also a discretion granted to the DRAT to reduce this amount to 25% provided it finds adequate reasons for doing so and gives reasons, that are recorded in writing. If this deposit is not made, then DRAT has no jurisdiction to entertain the appeal of the borrower. The DRAT has no power or jurisdiction to reduce the deposit amount to less than 25%. This is ex-facie clear from the plain and unambiguous language of Section 18 of the SARFAESI Act. The submissions made on behalf of the Petitioners that as the amount of debt due had not been determined by DRT, the appeal entertained by the DRAT without insisting of pre-deposit is erroneous. Under the second proviso to sub-Section (1) of Section 18 of the SARFAESI Act, the amount of 50% which is required to be deposited by the borrower is computed either with respect to the debt due as claimed by secured creditor in his statutory notice or as determined by the DRT whichever is less. This means that if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;the DRAT') in Misc. Application No. 626/2011 in Appeal No. 135/2011. The Petitioners are the Appellants in the appeal filed before the DRAT. The order directs the Petitioners to deposit 50% of the amount stated in the notice issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Act, 2002 (in short 'the SARFAESI Act). The Petitioners are called upon to deposit a sum of ₹ 4.57 crores in addition to ₹ 1.75 crores already deposited by the Petitioners on 12.07.2017. Respondent no. 1 is the assignee in whose favour State Bank of India has assigned the debt of Petitioner No. 1 perpetually. Respondent no. 2 is the purchaser of the two properties belonging to Petitioner No. 1 viz. Alampur property (Land admeasuring 12.1875 acres situated at Village Alampur, National Highway No. 6, Andul, District Hawraha, West Bengal, Mouza Alampur (land under JL No. 25) and Nagpur property (Plot no. D2, in Nagpur Industrial Area of M.I.D.C, Village Wadi, Tah. Wadi, District Nagpur, admeasuring 60,905 sq. meters alongwith building and construction standing therein.) in the proceedings before the DRAT. 3. Shri Puroh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Petitioner to Respondent no. 1 to a third party viz. B.M.W. Industries Ltd. He submitted that this was an admitted position and never disputed by Respondent no. 1. He submitted that the Deed of Assignment dated 18.01.2008 was never produced by Respondent no. 1 before the DRAT. He submitted that w.e.f. the date of execution of deed of assignment on 18.01.2018, Respondent no. 1 ceased to be a secured creditor and thus there was no subsisting debt which was recoverable by Respondent no. 1 from the Petitioners. He submitted that the condition for 50% amount as pre-deposit stated in the impugned order ought not to have been considered in view of the fact that the secured creditor had already recovered by way of public auction, more than 50% of the amount claimed in the statutory notice issued under Section 13(2) of the SARFAESI Act in the present case. He submitted that on 25.08.2007 and 29.08.2007, Respondent no. 1 took physical possession of two immovable properties belonging to Petitioner no. 1 viz. Nagpur property/land admeasuring 60,905 sq. meters alongwith building and structure standing thereon and Alampur property/land admeasuring 12.1875 acres situated at Howrah in Kolk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioners filed original Secrutisation Application being SA No. 71/2007 on 08.10.2007. Despite pendency of the said application, Respondent no. 1 sold both the above immovable properties on 23.10.2007 and 24.10.2007 by way of private treaty without consent of the Petitioners for a total consideration of ₹ 7,60,50,000/-. The Securitisation Application no. 71/2007 came to be dismissed by the DRT on 03.06.2011. The Petitioners filed Appeal bearing no. 135/2011 before the DRAT, Mumbai alongwith Waiver Application bearing no. 626/2011. Waiver Application came to be initially allowed by DRAT by order dated 04.07.2011 and complete waiver of pre-deposit was granted to the Petitioners as requirement of deposit was dispensed owing to secured assets being sold and the secured creditor having recoverd the amount claimed. He submitted that the order of waiver was recalled due to objections raised by Respondent no. 2. DRAT after hearing the parties, passed fresh order dated 11.04.2012, once again holding that requirement of pre-deposit under Section 18(1) stood satisfied. Respondent no. 2 filed Writ Petition No. 5005/2012 before this Court challenging the order dated 11.04.2012. The ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged by the Petitioners in the Hon'ble Apex Court which dismissed the S.L.P. on 27.02.2017 granting liberty to the Petitioners to make submissions before DRAT. The Hon'ble Apex Court modified its earlier order dated 27.02.2017 and by a fresh order dated 06.03.2017 held that in view of the order passed by DRAT in principal appeal no. 135/2011 pending before itself and other issues which were pending before this Court in Writ Petition No. 1006/2014, nothing survived in the matter. 9. Shri Purohit submitted that on 28.06.2017, DRAT gave a fresh hearing of the waiver application and directed the Petitioners to deposit 25% of the amount demanded by Respondent no. 1 in its statutory Notice dated 26.07.2006 issued under Section 13(2) of the SARFAESI Act. Respondent no. 1 in its statutory notice had claimed a sum of ₹ 6,96,58,955/- as outstanding debt and thus accordingly 25% of the said amount was computed at ₹ 1,75,00,000/-. The Petitioners deposited this amount with DRAT. Shri Purohit submitted that in the proceedings filed before DRAT-1, Kolkata, Original Application No. 168/2004 filed by State Bank of India against the Petitioners came to be dismissed. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter have been taken by the Petitioners in their challenge to the sale, which is pending as on date. 12. In support of his submissions, Shri Purohit referred to and relied upon the following judgments on the proposition that if a secured creditor has recovered its debt or part of it by sale of secured assets the sale proceeds can be taken into account as pre-deposit under the provisions of Section 18 of the SARFAESI Act. (i) Judgment of Hon'ble Delhi High Court in Poonam Manshani v. J K Bank Ltd. 2010 (1) DRTC 527; (ii) Judgment of Hon'ble Delhi High Court in Srishti Arogyadham (P.) Ltd. v. Punjab National Bank [W.P. (C) No. 12299 of 2018, dated 27-11-2018] (iii) Judgment of Hon'ble Allahabad High Court in Gopalji Gupta v. Debts Recovery Appellate Tribunal [CMWP No. 36314 of 2013, dated 09-07-2013]; (iv) Judgment of Hon'ble Allahabad High Court in Gopalji Gupta (supra) (v) Judgment of Hon'ble Allahabad High Court in Smt. Sarla Devi Mishra v. DRAT, [Writ C No. 45995 of 2015 dated 20-08-2015]; and (vi) Judgment of Hon'ble Punjab and Haryana High Court at Chandigarh in S. R. Forging Ltd. v. UCO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived at by the Hon'ble Apex Court in paragraph no. 44 of the judgment in the case of Kunhayammed (supra) which reads thus :- 44. To sum up our conclusions are :- (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimite application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and relied upon paragraphs nos. 19 and 20 in the case of Ramnik Madhvani (cited supra) which reads thus :- '19. The learned counsel for respondent tried to draw our attention to the limitations in exercise of jurisdiction by this Court under Article 136 of the Constitution of India. In our view, the argument advanced by the learned counsel for the respondent has no substance. The scope of powers of this Court under Article 136 of the Constitution of India was elaborately considered in a recent decision of this Court in Kunhayammed v. State of Kerala, [2000] 6 SCC 359. The following observation are worth noting. (SCC p.383, para 43) The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding the petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. 20. It follows that disposal of SLP against a judgment of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Plants Pvt. Ltd. Anr. v. Indian Bank Ors. (supra) decided on February 25, 2011, dealing with the question of pre-deposit under Section 18 of the SARFAESI Act allowed Indian Bank to appropriate the amount which is already with the Bank, as a condition precedent for hearing of the appeal filed by the appellant therein. ** ** ** 14. Having heard the learned counsel for the parties, the admitted facts are that the property in question has been auctioned by the Bank and purchased by the respondent No.2 for an amount of 11.77 crores, whereas the notice under Section 13(2) to be recovered from the borrower / petitioner was 9,25,11,879.56 (page 507 of the paper book). Pursuant to the sale, as seen from the reply filed by the respondent No. 1 Bank (at page 507 of the paper book), the sale certificate has been issued in favour of the respondent No.2, and even a sale deed has been executed in favour of respondent No.2. Physical possession of the property has also been given to the said respondent. The petitioner has challenged the auction sale. The ground is also that the amount for which the property has been sold is very less. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk (supra), has clearly held that pre-deposit is not a secured asset and on the disposal of the appeal either on merits or on withdrawal or on being rendered infructuous in case the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed. This conclusion of the Supreme Court also signifies that even if the auction is set aside, and the Bank has to return the money to the auction purchaser, the pre-deposit cannot be appropriated by the Bank. It shall go to the borrower. 21. The judgment of Eskays Construction Pvt. Ltd. (supra) as relied upon by Mr. Rajinder Wali, and more particularly para 15, to contend that on a similar issue the Bombay High Court has inter alia held that the pre-deposit is mandatory except that the Tribunal has a discretion to reduce the pre-deposit to 25%. We find that in the said judgment the High Court was of the view that the provision of pre-deposit is to secure the debt due from the borrower / guarantor. This conclusion of the High Court is at variance with the ratio of the judgment of the Supreme Court in Axis Bank case (supra). 22. The DRAT in the impugned order has referred to the judgment of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings whereby a bid of ₹ 17.75 crores as against the reserved price of ₹ 17.17 crores was received in respect of the property of the petitioners herein. It is the case of the petitioners that the total amount due and payable by the petitioners was ₹ 18.24 crores. Once, the substantial amount has been received by the Bank in pursuance of the auction conducted, the requirement of pre-deposit in terms of the proviso to Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act') stands satisfied as the substantial loan amount has already been received by the Bank. The condition of pre-deposit in these circumstances, over and above the sale price received by the Bank, will in fact lead to undue enrichment in the hands of the Bank when substantial amount to the loan amount stands liquidated by virtue of the auction. At this stage, we find that out of total due amount of ₹ 18.24 crores, ₹ 17.75 crores have been received by the Bank in a public auction. Therefore, the deposit of 50% of the amount due prior to sale from the petitioner would be wholly unjustified. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the defendant No. 6 herein (added Party) on one hand and on the other hand has unlawfully assigned its rights to BMW Industries Ltd. Who in turn have again assigned its right to one Paras Goods Pvt. Ltd. And all such actions have been illegally carried out by the defendant No. 1 and 2 during the pendency and in violation of section 17 of the said Act, 2002. 20. Shri Bhangde submitted that DRT was thus seized of the said facts and the stand of the Petitioners that the assignment was illegal and incorrect. He submitted that the Petitioners had argued it thoroughly before the DRT as can be seen from the aforesaid pleadings and having taken a stand that the assignment was illegal, the Petitioners cannot now argue for the first time in the present Writ Petition that Respondent no. 1 was not a secured creditor. 21. Shri Bhangde submitted that the aforesaid deed of assignment was executed during the pendency of litigation before DRT on 18.01.2008. The date of filing of the Secrutisation application was 08.10.2007, therefore according to him lis pendens prevailed in view thereof and Respondent no. 1 was bound by the secrutisation proceeding. In support of this propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendent elite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them. 13. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of non disposal of the O.A. by the tribunal due to heavy backlog, the bank finds that one of the three accounts has become sub-standard/ loss, in such a case the bank can invoke the NPA Act with or without the permission of the DRT. One cannot lose sight of the fact that even an application for withdrawal/ leave takes time for its disposal. As stated above, with inflation in the economy, value of the pledged property/ asset depreciate on day to day basis. If the borrower does not provide additional asset and the value of the asset pledged keeps on falling then to that extent the account becomes non-performing Therefore, the bank/ FI is required to move under NPA Act expeditiously by taking one of the measures by Section 13(4) of the NPA Act. Moreover, Order XXIII CPC is an exception to the common law principle of non-suit, hence the proviso to Section 19(1) became a necessity. 69. For the above reasons, we hold that withdrawal of the O.A. pending before the DRT under the DRT Act is not a pre-condition for taking recourse to NPA Act. It is for the bank/FI to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that before an appeal can be entertained by the DRAT, the borrower has to deposit 50% of the amount of debt due from him as claimed by the secured creditors or as determined by the DRT whichever is less. If there is no determination of the debt by the DRT under the provisions of the RDDB Act, then the borrower would have to deposit 50% of the amount of debt due from him as claimed by the secured creditors. The provision on a plain reading does not in any way exclude taking into consideration the future interest that is accrued on the debt owed by the borrower to the secured creditor. In fact, the definition of the word debt means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution. Therefore, if the claim made by the secured creditor in the section 13(2) notice includes future interest, the same would certainly be included in the amount of the debt due from the borrower to the secured creditor as contemplated under the 2nd proviso to section 18(1) of the SARFAESI Act. There is therefore no justification to hold that it is only the figure that is mentioned in the section 13(2) notice that is to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Recovery Tribunal 2[under section 17, may prefer an appeal along with such fee, as may be prescribed] to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. 2[Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:] 3[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 to in the second proviso.] (2) 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. 18A. Validation of fees levied.-Any fee levied and collected for preferring, before the commencement of the Enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,28,58,484.36. He submitted that as on 12.07.2017 i.e. date of deposit by the Petitioners, the total debt due was ₹ 28,26,29,289.81 (inclusive of interest) and thus 25% of the said amount came to ₹ 7,06,57,322.45. He submitted that the Petitioners had deposited an amount of ₹ 1,75,00,000/- and therefore there was still a deficit of ₹ 5,31,57,322.45. 28. Shri Bhangde referred to and relied upon following cases in support of his submissions. (i) In the case of R. N. Gosain v. Yaspal Dhir, [1992] 4 SCC 683, he referred to and relied upon paragraph no. 10 of judgment which reads thus :- '10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage . [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 R.B. 608, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction . It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Volume XIII, page 454, para 512: On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered ₹ 11.77 crores from the respondent No.2, the auction purchaser, there remains no requirement of pre-deposit at all and in fact the bank is liable to pay interest on the excess amount received and withheld by it. In other words, the auction money recovered by the bank is liable to be considered towards the compliance of the pre-deposit. 5. Reliance was placed on the judgment of this Court in W.P. (C) No. 13042/2009 decided on November 10, 2009 and two decisions of Punjab and Haryana High Court in CWP No. 9131/2012 and 10957/2012 decided on February 19, 2013. Some judgments of the Allahabad High Court were also relied upon by the learned counsel for the petitioner on the aspect of adjustment of sale proceeds of mortgaged property while calculating the amount of pre-deposit. There was one order by consent passed by the Supreme Court on February 25, 2011 in Civil Appeal No.2074-2078/2011 which was also relied upon. 6. The respondent No. 1 i.e. bank and the auction purchaser have opposed the application for waiver of pre-deposit. The DRAT observed that the Tribunal has already taken a view, relying upon a judgment of the Supreme Court in the case of Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no amount due from the borrower i.e. petitioner herein when more than due amount has already been realized by the Bank the judgment has no applicability. 17. It is a conceded case of the respondents that none of the eventualities exist as the amount due to the Bank has been recovered. The application has been opposed by the respondents and decided by the DRAT primarily on an apprehension that since, the petitioner has challenged the auction, the same may be set aside. In other words, the sale remains in a nebulous stage and the sale will achieve finality / confirmed only when the legal proceedings come to an end. 18. Surely such an apprehension as noted above, cannot govern the interpretation of Section 18 of the SARFAESI Act, 2002. The Section is clear and contemplates a situation stated in the earlier paragraph and the same has to be interpreted in the manner it exist, by giving a plain meaning. 19. We are conscious of the fact that the amount of pre-deposit has to be made in DRAT and not in the Bank. But still when no amount is due from the petitioner whether the pre-deposit can still be insisted upon. The argument can be made that the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners' properties ought to be considered/adjusted towards pre-deposit amount and hence the said amount was not available to the Petitioners for pre-deposit under Section 18(2) of the SARFAESI Act. 30. Shri Bhangde further referred to and relied upon the following two judgments in support of his case delivered by the Madras High Court and Bombay High Court as under :- (i) 2009 SCC Online Madras 1904, E.I.D. Parry (India) Ltd. v. Debts Recovery Appellate Tribunal. The relevant paragraph no. 5 to 10 are reads thus :- 5. From the impugned order dated 1.10.2009, it would be evident that the DRAT, Mumbai, has noticed that the secured asset has been sold for a sum of ₹ 50.20 crores. Taking into consideration the same, it was observed by the DRAT, Mumbai, that the amount claimed by the borrowers (appellants therein) is less than the sale consideration and on that ground, it was held that the borrowers were not liable to pay any further amount under the second proviso to Section 18(1). 6. Learned counsel appearing on behalf of the borrowers rightly pointed out that the amount of ₹ 50.20 crores has not been deposited by the borrowers. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. It is a well settled position in law that the amount which is received by the Bank in the sale of the immovable property cannot be adjusted in the application for waiver of pre-deposit, unless the sale is accepted and confirmed by the borrower. In the present case, Petitioner has challenged the said sale after taking out separate application. We are, therefore, not inclined to entertain this Petition. Petition is dismissed in limine. 31. Shri Bhangde submitted that the amount received from a third party on sale/auction of the properties cannot be counted to be amount paid by the borrower in order to reduce the amount of pre-deposit particularly when the sale is under challenge. He submitted that in the present case also the Petitioners have challenged the same and the said proceedings are pending. 32. Shri Bhangde while concluding his submissions relied upon the judgment in the case of Eskays Constructions (P.) Ltd. v. Soma Papers and Industires Ltd. AIR 2017 Bom. 10 and decided by the Bombay High Court at its principal seat at Mumbai. Paragraph no. 18 of the said judgment reads thus :- '18. Faced with this situation, Ms Vyas submitted that DRAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he well settled position of law that any amount received by sale of immovable property be adjusted in the application for waiver of pre-deposit. He submitted that this judgment decided on 13.11.2016 was carried to the Hon'ble Apex Court by the defendant therein in S.L.P. No. 13214/2017 and the Hon'ble Apex Court dismissed the same, interalia, upholding the above judgment. 33. Shri S. Kumar and Shri R. S. Sundaram, learned counsels appearing on behalf of Respodnent nos. 1 and 3 adopted the submissions made by Shri Bhangde. Shri Sundaram submitted that there were certain outstanding claims of Respondent no. 3 against the Petitioners which were due and payable, however Respondent no. 3 had not filed any reply nor details of the said claim on pleadings before the Court. 34. Shri Purohit in his brief rejoinder with the leave of the Court submitted that the debt which was due was never determined at any stage in the proceedings before the DRAT or the DRT and therefore the question of 25% of pre-deposit would not arise in the present case. He repeated and reiterated that Respondent no. 1 was no longer a secured creditor once it had assignd its debt to Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the various proceedings in the Writ Petition and the paper-book alongwith annexures thereto. 37. Section 18(1) of the SARFAESI Act clearly stipulates that any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to DRAT within 30 days from the date of receipt of the order of the DRT. The second proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditor or as determined by the DRT, whichever is less. The third proviso to Section 18(1) gives a discretion to DRAT to reduce the aforesaid amount to not less than 25%, provided that DRAT gives reasons for the same which are to be recorded in writing. What becomes clear from the aforesaid provisions is that there is a jurisdictional bar from entertaining an appeal filed by the borrower from an order passed under Section 17, unless the borrower deposits 50% of the amount of debt due from him, as claimed by the secured creditor or as determined by the DRT, whichever is less. There is also a discretion granted to the DRAT to reduce this amount to 25% provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l pending and therefore in such circumstances wherein the Petitioners' substantive right in respect of the two specific and important proceedings is yet to be adjudicated, the same would have absolute bearing upon their claim and entitlement in the respective proceedings. Thus, the Petitioners cannot be entitled to any benefit for considering their application of waiver of pre-deposit that they should be granted a complete waiver. If the Petitioners ultimately succeed they would be entitled to all the claims along with interest and therefore in so far as application for waiver of pre-deposit is concerned, we would have to determine that as of now the amount of debt due which is required to be interpreted and determined in the present case would be the debt which is claimed by the secured creditor in its notice under Section 13(2) of the SARFAESI Act. Hence, we have no hesitation in holding that the debt due would be debt which would be outstanding under the statutory notice issued by Respondent no. 1 under the SARFAESI Act. This debt would be debt due as on 2006. Further in addition to this debt due, an amount of interest and future interest that would be added from 2006 onward ..... X X X X Extracts X X X X X X X X Extracts X X X X
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