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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI & RIYAZ I. CHAGLA, JJ.
IDBI Bank Ltd. – Petitioner
Versus
Aditya Logistics (I) Pvt. Ltd. and Others – Respondents
Writ Petition No. 12780 of 2015
Decided On : 01-07-2017
With great respect to the Tribunal, there is no such direction in the order of the Court dated 18th March, 2015. In any case, even the Court while exercising the jurisdiction under Article 226 of the Constitution of India, cannot direct any authority including a statutory tribunal to act contrary to the statutory provisions. With great respect, such a power can be exercised only by the Hon`ble Supreme Court and that too, while exercising its powers under Article 142 of the Constitution of India.
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 17 and 18-Appeal to appellate Tribunal.-No appeal shall be entertained by Tribunal unless a borrower has deposited 50% of amount of debt due from him as claimed by secured creditor.
The statute mandates that normally no Appeal shall be entertained by the Appellate Tribunal unless a borrower has deposited 50 percent of the amount of debt due from him as claimed by the secured creditors or determined by the Recovery Tribunal, whichever is less. No doubt, that the third proviso bestows the discretion with the Tribunal to reduce the said amount to 25 percent, however, for the reasons to be recorded in writing.
It could thus, be clearly seen that the statute provides that for entertaining an appeal, deposit of 50 percent of amount, as claimed by the creditor or as determined by D.R.T. whichever is less as, provided in second proviso is mandatory which can be reduced to 25 percent by the Tribunal for reasons to be recorded in writing.
The appeal before the D.R.A.T. arises after the full-fledged hearing was given to the parties by D.R.T. In that view of the matter, while entertaining and appeal under Section 18, the Tribunal by no stretch of imagination could have given a go-by to the mandatory provisions under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act.
>B.R. GAVAI, J.
1. Rule is made returnable forthwith.
2. Heard by consent.
3. Our judicial conscience shocks at the manner in which the learned Debts Recovery Appellate Tribunal (hereinafter referred to as “DRAT” in short) has exercised the jurisdiction under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act” in short). The present litigation has a chequered history. This is a third round of litigation before this Court.
4. Respondent No. 1 has obtained cash credit facilities, bank guarantees as well as term loan aggregating to Rs. 1450 Lakhs from the Petitioner Bank. On Petitioner Bank sanctioning aforesaid facilities, the necessary hypothetication documents were entered into in respect of the property, which is the subject matter of the Petition. It appears that from time to time, the Board of Directors of Respondent No. 1 had passed Resolution dated 25 May 2010 to extend the charge of the Petitioner on the said property. It is the case of the Petitioner that on Respondent No. 1 defaulting to make the payment of the dues, the account of Respondent No. 1 came to be declared as Nonperforming Assets (for short “NPA”). On 5 November 2012 a notice under Section 13(2) of the SARFAESI Act came to be issued to the Respondent No. 1. It appears that thereafter, there were certain negotiations between the Petitioner and Respondents for one time settlement. However, it appears that the same has failed. It is the contention of the Petitioner that the Respondents gave peaceful possession of the said property on 21 May 2013. However, it is seriously disputed by the Respondents contending therein that the Petitioner forcibly took possession of the property. It appears that the Respondents have also filed a complaint before the learned District Magistrate on 12 October 2014 against the Bank which came to be closed on 19 January 2015.
5. It appears that the first Writ Petition came to be filed by the Respondents herein before this Court being Writ Petition No. 8631 of 2014. The Court vide order dated 29 September 2014 passed an ad-interim order directing therein that the auction process shall be subject to the outcome of the said Petition. However, it appears that when the Court heard both the sides on 13 October 2014, the Court found that the Petitioner had an alternate remedy of approaching the learned Debts Recovery Tribunal (for short D.R.T.) and therefore, disposed of the Petition relegating the Petitioner to the alternate remedy available to him in law. In pursuance of the alternate remedy, the Respondents moved an application before the D.R.T. on 17 October 2014 under the provisions of Section 17 of SARFAESI Act being S.A. No. 505 of 2014. Along with the main application, an application for ad-interim relief was also filed. The same came to be rejected by learned D.R.T. Being aggrieved thereby, the Respondents preferred an Appeal before the learned D.R.A.T. Learned D.R.A.T. in the said Appeal directed an amount of Rs. 4.00 Crores to be deposited as a condition precedent for entertaining the said Appeal.
6. Being aggrieved by the order passed by learned D.R.A.T. of depositing the amount, the Petitioner approached this Court by way of Writ Petition No. 742 of 2015 Writ Petition (L) No. 111 of 2015. In the said Petition initially an ad-interim order was granted by this Court. The said Petition came up before the Division Bench on 27 January 2015 on which date, the Court continued the ad-interim relief granted earlier and directed certain Affidavits to be filed by the Respondent Bank. The Petition was finally heard and disposed of by this Court on 18 March 2015. The Court was of the view that since the main Application under Section 17 of SARFAESI Act was pending before the learned D.R.T. it would be appropriate that the learned D.R.T. decides the main application expeditiously on merits and in accordance with law. The Division
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