IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 13TH DAY OF AUGUST 2018 / 22ND SRAVANA, 1940 1940 OP (DRT).No. 77 of 2018 AIR (SA) 68/2018 of DEBT RECOVERY TRIBUNAL, CHENNAI PETITIONER/S:

MANOJ THOMAS S/O.JP THOMAS,AGED 51,RESIDING AT DILSHANOJ,15,JAWAHAR NAGAR, THIRUVANANTHAPURAM-695041.

BY ADV. SRI.K.C.ELDHO RESPONDENT/S:

CAN FIN HOMES LTD REPRESENTED BY ITS AUTHORISED OFFICER,TC

28/2452,GROUND FLOOR,MG ROAD,THIRUVANANTHAPURAM-695001.

BY ADV. SRI.C.AJITH KUMAR THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY HEARD ON 13.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

DAMA SESHADRI NAIDU, J.

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O.P. (DRT) No.77 of 2018 --------------------------------------

Dated this the 13^th day of August, 2018 Petitioner Manoj Thomas, a borrower, defaulted on repayment and, so, faced recovery proceedings. When the Respondent finance company issued a notice under Section 13 (4) of the SARFASI Act, Thomas filed S.A. No. 418 of 2013 before the Debt Recovery Tribunal–

II, Ernakulam.

2. When Thomas filed an amendment application before the Tribunal, it dismissed the petition through the Exhibit P4 order. Later, the Tribunal dismissed the SA, too, through the Exhibit P5 order. Aggrieved, Thomas filed OP (DRT) No.102 of 2017. This Court, it seems, set aside Exhibit P5 order and permitted Thomas to challenge the rejection of amendment before the Debt Recovery Appellate Tribunal, Chennai.

3. Then, Thomas filed the Exhibit P7 appeal, along with a stay petition, before the Appellate Tribunal. But through its Exhibit P8 order, the Appellate Tribunal directed Thomas to deposit Rs.10 lakh as a precondition for it to entertain the appeal. Now, impugning the Ext.

P8—that is, the condition of pre-deposit—Thomas has filed this OP.

4. Sri KC Eldho, the petitioner’s counsel, primarily contends that an interlocutory order stands on a different pedestal from the main order. According to him, the Appellate Tribunal can insist on pre-deposit in appeals only against the final orders, but not the interlocutory ones. In this regard, he refers to Section 18 of the Act. In other words, if there is no final adjudication of the issue, there can be no quantification of the amount due from the debtor. So, the liability unquantified, the Appellate Tribunal cannot determine under Section 18 of the Act what percentage of the unquantified debt should be deposited as a precondition.

5. Sri. C. Ajith Kumar, the counsel for the respondent creditor, has submitted that the creditor initiated recovery proceedings under the SARFASI Act. According to him, there is a subtle difference between the provisions providing for appeal remedies under the two analogous statutes: Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFASI Act) and the Recovery of Debts Due to Banks And Financial Institutions Act, 1993 (the RDBFI Act). He further contends that Section 18 of the SARFASI Act does not mandate that there should be either final adjudication or quantification of the debt due. He, therefore, urges this Court to dismiss the OP.

6. Heard

7. Indeed, earlier, an identical issue arose in M/s.

Chandragiri Estates and others Indian Overseas Bank1.

Of course, in that OP, the proceedings arose out of the RDBFI Act. But this Court, through me, analysed the appeal provisions under both the enactments. It has, then, concluded that the quantification is not a precondition under the SARFASI Act. To avoid repetition, I may succinctly set out the legal proposition, leaving out the analytical nitty-gritty.

8. Both the SARFESI Act and RDBFI Act have analogous provisions. A creditor or a debtor can invoke either Act, based on the rights it wants to enforce. Section 20 of the RDBFI Act and Section 19 of the SARFESI Act provide for the appeal mechanism. They both refer

1 OP(DRT) 95 of 2018 to the same forum, but with subtle variation in the scope and sweep of the reme