ORDER :

1. Heard learned advocate Mr. Vishwas Shah for learned advocate Ms. Bhavna Shah for the petitioners.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 08.12.2022 passed by the Debt Recovery Appellate Tribunal, Mumbai in IA No. 257 of 2022 in Appeal on Diary No. 552 of 2022 with regard to direction to the petitioner to deposit the amount of Rs. 1.70 crores as a condition for maintainability of the appeal as per the second proviso to section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 [‘SARFAESI Act’ for short].

3. The facts, necessary for adjudication of this petition, are narrated here-in-below without going into the past history of the litigation between the parties.

4. The petitioner challenging the order dated 19.02.2018 passed by the Debt Recovery Tribunal, Ahmedabad, has preferred the appeal under section 18 of the SARFAESI Act being Appeal on Diary No. 552 of 2022.

5. The petitioner also preferred an application being IA No. 257 of 2022 in Appeal on Diary No. 552 of 2022 for waiver of the pre-deposit as provided under second proviso to section 18 of the SARFAESI Act.

6. According to the petitioner, the claim made by the respondent-Bank is Rs. 9,50,85,467.96 as of 31.03.2016 together with interest at prime lending rate [‘PLR’ for short]+0.25% and therefore the bank cannot ask for any further amount at the stage of considering the request of waiver by the petitioner with regard to interest rate of 14% as claimed by the bank before the DRAT. It is the case of the petitioner that DRAT has committed an error by considering the claim made by the respondent Bank considering the interest @14% in view of the subsequent admission made by the petitioner before the DRT in the securitization application filed by the petitioner being SA No. 387 of 2019.

7. Learned advocate Mr. Vishwash Shah for the petitioner submitted that on bare perusal of section 18 of the SARFAESI Act, the DRAT is required to consider only the claim made by the respondent-bank against the borrower or the amount of decree passed by the DRT whichever is less. As there is no decree passed by the DRT against the petitioner borrower, the claim made by the petitioner in notice issued under section 13(2) of the SARFAESI Act is required to be seen.

8. Learned advocate Mr. Shah therefore referred to clause 4 of the notice dated 12.04.2016 issued under section 13(2) by the respondent-Bank which reads as under:

“(4) For the reasons stated above, we hereby give you notice Under Section 13(2) of the above noted act and call upon you to discharge in full your liabilities by paying to the Bank the sum of Rs. 9,50,85,467.96 (contractual dues upto the date 31/03/2016) with interest @PLR +0.25% p.a. within a period of 60 days from the date of this notice, failing which please note that we will entirely at your risk as to costs and consequences exercise the section 13 of the Securitization of Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, against the secured assets mentioned above.”

9. Relying upon the above clause (4) it was submitted that as per the provisions of SARFAESI, Act the claim made by the bank would be Rs. 9,50,85,467.96 which are admitted contractual due up to 31.03.2016 with interest PLR + 0.25% per annum only. It was submitted that the bank has already recovered about Rs. 10.78 crores which is not in dispute. It was also submitted that the DRAT could not have taken into consideration the rate of interest at 14% while imposing the condition of pre-deposit of 25% as per the provision of section 18 of the SARFAESI Act.

10. On the other hand, learned advocate Mr. J.R.Shah for the respondent Bank submitted that relying upon the following averments made in the affidavit-in-reply filed on behalf of respondent No.3:

“(i) I say that respondent bank has released the property by executing necessar