JUDGMENT :

Milind N. Jadhav, J.

Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

2. By the present Petition, the Petitioners are challenging the order dated 30.05.2018 passed by Debt Recovery Appellant Tribunal, Mumbai (hereinafter referred to as '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 Rs. 4.57 crores in addition to Rs. 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 along with building and construction standing therein.) in the proceedings before the DRAT.

3. Shri Purohit, learned counsel appearing on behalf of the Petitioners submitted that Respondent no. 1 could not have taken any steps under the SARFAESI Act pertaining to execution of claim of assignment dated 17.08.2007 whereby Respondent no. 1 had assigned its debt to B.M.W. Industries Ltd. for a sum of Rs. 8.1 crores (approximately) with a further fee of Rs. 3 crores admittedly paid to Respondent no. 1 for acting as Resolution Advisory Officer to B.M.W. Industries Ltd. He emphatically submitted that by virtue of the aforesaid agreement of assignment, Respondent no.1 no longer remained a secured creditor and thus had no claim whatsoever against the Petitioners. According to him, the provisions of Section 18(1) of the SARFAESI Act would therefore not apply to the present case. He submitted that the impugned order directing the Petitioners to deposit 50% of the amount of debt due as claimed by the secured creditor, interalia, under the second proviso to Section 18(1) of SARFAESI Act would not apply to the Petitioners.

4. Shri Purohit submitted that Respondent no. 1 did not produce any computation/calculation of debt due in the entire proceedings and thus there was no reason for the DRAT to accept "debt due" as claimed by Respondent no. 1. He submitted that Respondent No. 1 filed Application No. 168/2004 to implead and substitute itself in place of State Bank of India. According to him, since this application came to be dismissed without giving an opportunity to Respondent no. 1 to substitute itself in place of State Bank of India, the "debt due" as per the second proviso to Section 18(1) of the SARFAESI Act is required to be considered as Nil. He submitted that there was no debt due which could be claimed by the secured creditor and more importantly since there was no secured creditor, no debt could be determined by DRAT and therefore, applicability of the second proviso to Section 18(1) of the SARFAESI Act could not have been done in the present case while passing the impugned order and directing the Petitioners to deposit the sum of Rs. 4.57 crores.

5. Shri Purohit vehemently submitted that DRAT ought to have taken into account and appreciated the fact that Respondent no. 1 by a deed of Assignment of debt dated 18.01.2008 (which was (preceded by agreement to assign the financial assets dated 17.08.2007) had entirely assigned the debt owed 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