JUDGMENT :

ARAVIND KUMAR, J.

1. This appeal is directed against the order of the learned Single Judge dated 04.01.2023 whereunder the learned Single Judge has refused to entertain the petition filed under Articles 226 and 227 of the Constitution of India, whereby petitioners had challenged the order dated 08.12.2022 passed by the Debt Recovery Appellate Tribunal, Mumbai, in I.A. No. 257 of 2022 in Appeal Diary No. 552 of 2022 directing petitioners to deposit an amount of Rs. 1.70 Crores as a pre-condition to maintain the appeal in the teeth of second proviso to Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act” for short).

2. The facts in detail has been dealt with by the learned Single Judge to arrive at a conclusion that there is no error committed by the Tribunal. Finding recorded by learned Single Judge reads as under:

“11. It was submitted that the respondent bank has to recover Rs. 6,78,71,314.45 as of 30.06.2022 considering the rate of interest at 14% as admitted by the petitioner in the letter dated 26.09.2019. Learned advocate Mr. Shah therefore submitted that as per the respondent-bank, the claim of the respondent Bank is Rs. 6,78,71,314.45 when the petitioner preferred the appeal before the DRAT and therefore, order of the DRAT is in consonance with the provisions of section 18 and no interference is required to be made by this Court while exercising extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

12. Having heard learned advocates for the respective parties and having gone through the material on record the only short question which is arising for adjudication before this Court is with regard to interpretation of second proviso to section 18 of the SARFAESI Act. It could be therefore germane to refer the provision of section 18 of the SARFAESI Act which reads as under:

“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 the 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.

(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.”

13. On perusal of the above provision of section 18 more particularly, second proviso which clearly provides that no appeal shall be entertained by the DRAT unless the borrower has deposited 50% of the amount of debt due from him as claimed by the secured creditor or determined by the Debt Recover Tribunal whichever is less.

14. Therefore, the question arises, what would be the amount of debt due by the borrower as claimed by the secured creditor as whether the same would be the amount claimed as stated in the notice under section 13(2) of the Act or as the claim of the secured creditor for amount due when the petitioner filed appeal before the Appellate Tribunal.

15. The claim of the secured creditor is not defined under the provisions of SARFAESI Act. Therefore, it would be necessary to consider the claim of the secured creditor as and when the appeal is preferred before the Appellate Tri