Hon’ble Tarun Agarwala, J.—Heard Sri Deepak Kumar Jaiswal, the learned counsel for the petitioner and Sri V.K. Srivastava, the learned counsel for the respondent-bank.

With the consent of the learned counsel for the parties, the writ petition is being decided at the admission stage itself without calling for any counter affidavit, since no factual controversy is involved in the present writ petition.

2. The petitioner is a guarantor to a loan taken by M/s Ganpati Traders, who defaulted in the payment of the loan. Accordingly, the bank issued a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act of 2002) and thereafter, issued a notice under Section 13(4) of the Act of 2002 for taking possession of the property of the guarantor, pursuant to which possession was taken and the property of the guarantor was put to auction. It has come on record, that pursuant to the auction, a sum of Rs. 50,11,847/- has been realised towards the loan amount.

3. The petitioner, being aggrieved by the issuance of the notice bank under Section 13(4) of the Act of 2002, filed an application under Section 17 of the Act of 2002 before the Debts Recovery Tribunal praying that the possession be restored in his favour. This application was rejected by the Tribunal, against which the petitioner preferred an appeal under Section 18 of the Act of 2002.

4. Section 18 of the Act of 2002 requires that any person aggrieved by an order of the Debts Recovery Tribunal could prefer an appeal provided he deposits 50% of the amount of debt due from him as claimed by the secured creditor or determined by the Debts Recovery Tribunal, whichever is less. The petitioner by his own calculation filed an application for waiver of the 50% to 25% as per the second proviso of Section 18 of the Act of 2002 alongwith a bank draft of Rs. 2.65 lacs and prayed that suitable orders may be passed for waiving the balance amount and entertaining the appeal. The said application was rejected by the Debts Recovery Appellate Tribunal by the impugned order. The petitioner, being aggrieved by the said order, has filed the present writ petition.

5. The Appellate Tribunal held that 50% of the amount demanded by the bank has to be deposited irrespective of the recovery so made by the bank by way of auction.

6. Having heard the learned counsel for the parties and having perused the impugned order, the Court finds it strange that the bank is demanding Rs. 94,08,777/- alongwith future interest but the possession notice issued under Section 13(4) of the Act of 2002 indicates that the bank had demanded a sum of Rs. 60,65,380.90 alongwith future interest. The Court is of the opinion that the amount indicated in the notice under Section 13(4) of the Act of 2002 can only be made the basis for the purpose of filing the appropriate deposit in an appeal under Section 18 of the Act of 2002, inasmuch as the petitioner had questioned the said notice before the Debts Recovery Tribunal. The contention of the respondent bank’s counsel that 50% of Rs. 94,08,777/- has to be deposited is erroneous.

7. The second proviso to Section 18 of the Act of 2002 is relevant for the purpose of deciding the appeal. For facility, the said provision is extracted 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 alongwith 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 determi