(1.) LEAVE is granted to the petitioners Advocate-on-record to effect correction in the cause title of the petition by adding a party.

(2.) VIRES of the second proviso to Section 18 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest act, 2002 (hereinafter the Act) has been questioned by the petitioner in this petition.

(3.) SECTION 18 (1) of the Act is quoted hereunder : "18. Appeal to Appellate Tribunal.- (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal (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 : provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower : 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. "

(4.) MR. Ghosh, learned Counsel for the petitioner, has advanced two-fold submissions.

(5.) FIRSTLY, he submits that the second proviso to Section 18 of the Act refers to determination of the amount of debt due from the borrower by the debts Recovery Tribunal but Section 17 of the Act, which confers right on any person including the borrower to approach the Tribunal being aggrieved by the measures taken by the secured creditor or his authorized officer as is referred to in Section 13 (4) of the Act, does not provide for any machinery or system in relation to determination of the amount of debt due to the secured creditor from the borrower by the Tribunal and, therefore, the right to prefer appeal to the Appellate Tribunal under Section 18 is rendered illusory.

(6.) NEXT, he has referred this Court to the decision of the Apex Court in Mardia Chemicals Limited v. Union of India reported in (2004)4 SCC 311 : (2004)2 WBLR (SC) 311 (paragraph 64) which is extracted below : "64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet, (iii) the secured assets or their management with transferable interest is already taken over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v)75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution. "

(7.) ACCORDING to him, two of the reasons for holding the condition relating to pre-deposit while filing an application under Section 17 of the Act as ultra vires are those mentioned in (iii) and (iv) of paragraph 64 (supra)which, even after amendments effected in Section 17 of the Act in the light of the decision in Mardia Chemicals Limited (supra), continue to exist when an aggrieved borrower chooses to exercise his right under Section 17 when measures are sought to be taken by the secured creditor in terms of Section 13 (4) of the Act and, therefore, to insist on a pre-deposit, as has been ordained in the second proviso to Section 18 (1), is arbitrary and unreasonable.

(8.) THIS Court is unable to concur wit