DRAT in absence of any specific power vested with Appellate Tribunal cannot impose condition.

S.J. Mukhopadhaya, J.

This revision application has been preferred by the petitioner against order dated 12th Dec., 2007, passed by the Debts Recovery Appellate Tribunal, Chennai, (hereinafter referred to as DRAT) in I.A. No.916/07 in M.A. No.52/07. By the said order, the appellant before the DRAT has been directed to deposit cost of Rs.10,000/= as awarded by the Debts Recovery Tribunal, Bangalore, (hereinafter referred to as DRT) by the order impugned before DRAT in favour of the respondent, State Bank of Mysore (hereinafter referred to as the Bank) on or before the specified date.

2. The main plea taken by the petitioner is that the DRAT has no jurisdiction to direct the petitioner/appellant to deposit the cost as imposed by DRT for determination of appeal or for extension of interim order of stay.

On the other hand, according to the bank, the DRT as also the DRAT has power to make such order to prevent abuse of its process and to secure the ends of justice.

3. The admitted fact is that the petitioner is the borrower, who obtained housing loan on 15th Jan., 1981 and created an equitable mortgage on 10th Jan., 1983. He sought for enhancement on 5th Feb., 1992, and then on 16th Aug., 1997 and there was an extension of scope of mortgage on 17th Aug., 1998. Originally the housing loan was sanctioned by the bank and, thereafter, educational loan was sanctioned in favour of the 2nd and 3rd respondent to the original application.

The bank preferred application, O.A. No.76/05 and sought for recovery of a sum of Rs.21,52,976.08 along with interest and cost. In the said application, the petitioner, who is the 1st defendant, filed application, I.A. No.1244/06 seeking dismissal of the original application on the following grounds: -

The application is barred by limitation, misjoinder of parties, misjoinder of cause of action clubbing unaccounted and separate loans sanctioned under different heads repayable by different parties creating jurisdiction to Tribunal, which is not permissible.

The DRT, Bangalore, by its order dated 15th June, 2007, rejected the said interlocutory application by detailed reasoned order with exemplary cost of Rs.10,000/= payable to the other side.

Being aggrieved, the petitioner preferred appeal against the said order before DRAT, Chennai, registered as M.A. No.152/07. An I.A. No.916/07 was filed in the said appeal for interim stay, wherein following conditional order was passed by DRAT, Chennai, on 10th Dept., 2007, directing the petitioner to deposit a sum of Rs.3,50,000/= in two equal instalments :-

"Heard the Ld. Counsel for the Petitioner/Appellant.

1. Interim stay on condition of deposit of Rs.3,50,000/= (Rupees Three Lakhs Fifty Thousand only) with the respondent Bank in two instalments, each at Rs.1.75 lakhs, 1st on or before 110. 2007 and 2nd one on or before 111. 2007.

2. Notice and call on 110. 2007."

The case was subsequently taken up on 12th Dec., 2007 when the DRAT extended the interim stay, but again condition to pay the cost of Rs.10,000/= as imposed by DRT, Bangalore, which is under challenge in appeal. The order is quoted hereunder: -

"Both sides counsel are present.

The appellant is directed to deposit the cost of Rs.10,000/= as awarded by the DRT, Bangalore in the impugned order, to the respondent bank on or before 112. 2007.

Proof of payment by then.

Interim stay is extended till then."

4. Learned counsel appearing on behalf of the petitioner submitted that in absence of a decree against borrower – petitioner, in fact DRAT should not have passed conditional order to deposit a sum of Rs.3,50,000/= for hearing of the appeal and interim stay. According to him, with a view to honour the Appellate Tribunals order, the amount of Rs.3,50,000/= was deposited within time, but again when the matter was taken up, the impugned order dated 12th Dec., 2007, was passed, wherein the petitioner has been directed to deposit the cost as was imposed by DRT, Bangalore, which is under challenge befo