IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 11^TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 OP (DRT) NO. 283 OF 2022 AGAINST THE ORDER/JUDGMENT SA 47/2019 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM PETITIONERS:

1 V.SHAREEF, AGED 54 YEARS S/O. V. AHAMMEDKUTTY, EXCEL PLAZA, PETTA, FEROKE, KOZHIKODE DISTRICT, PIN - 673301

2 SUHARA, AGED 49 YEARS W/O. V. SHAREEF, EXCEL PLAZA, PETTA, FEROKE, KOZHIKODE DISTRICT, PIN - 673301 BY ADVS.

NISHA GEORGE N.SASI GEORGE POONTHOTTAM (SR.)

RESPONDENT:

THE AUTHORISED OFFICER, STATE BANK OF INDIA, STRESSED ASSETS MANAGEMENT BRANCH, NO.32/1747, K1, 7TH FLOOR, VENKARATH TOWERS, PALARIVATTOM, KOCHI, PIN - 682024 BY ADV S.EASWARAN THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ANU SIVARAMAN, J.

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OP (DRT) NO.283 OF 2022 =========================

Dated this the 11^th day of April, 2023

JUDGMENT

This OP(DRT) is filed seeking the following reliefs: “i) To call for the records and files leading to Exhibits P11, P17 and P21 orders, scrutinize and set aside the same.

ii) Direct the Debt Recovery Appellate Tribunal, Chennai to take up AIR (SA) No.105/2022 for consideration and pass orders on stay petition as expeditiously as possible.”

2. Heard the learned Senior Counsel appearing for the petitioners and the learned Standing Counsel for the Bank at considerable length.

3. Having considered the contentions advanced, I notice that the dispute raised in this case is with regard to the pre-deposit required for the consideration of an appeal by the Debt Recovery Appellate Tribunal (DRAT). The petitioners had attempted to subject Exhibit P11 interim order of the Debts Recovery Tribunal (DRT) to an appeal before the DRAT. By Exhibit P16 order, the DRAT directed pre-deposit of an amount of Rs.9,01,51,596/- for entertaining the appeal, after considering the amounts payable and paid by the petitioners. The respondent bank had represented before the DRAT that the outstanding amount in the account is Rs.18,03,03,192/- and the DRAT had directed the pre-deposit of 50% of the said amount which comes to Rs.9,01,51,596/- in two equal instalments.

4. The learned counsel appearing for the respondent relies on a decision of the Apex Court in M/s Sidha Neelkanth Paper Industries Private Limited & Another v. Prudent ARC Limited & Others (2023 KHC 6009) and contends that the amount to be paid as pre-deposit is 50% of the amount which is claimed by the financial institution as debt due and that there can be no direction by this Court to entertain an appeal without such pre-deposit being made by the appellant.

5. Having considered the contentions advanced, I notice that Section 18 of the SARFAESI Act provides for an appeal to be filed by any person aggrieved by any order made by the DRT to the Appellate Tribunal within 30 days. The 2^nd proviso states that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal 50% of the amount of debt due from him, as claimed by the secured creditors or determined by the DRT, whichever is less.

6. 3^rd proviso further provides that the Appellate Tribunal may, for reasons to be recorded in writing, reduce the amount to not less than 25% on the debt referred to in the 2^nd proviso.

7. It is submitted by the learned Senior Counsel appearing for the petitioners that the entire proceedings including the notice under Section 13(2) of the SARFAESI Act issued to the guarantors were under challenge before the DRT on the specific ground that no notice had been issued to the company which was the borrower. It is further submitted that the petitioners had raised specific contentions that there were two loan accounts and that one of such loan accounts, where the outstanding was 41,14,88,766/- had been settled under the One Time Settlement Scheme by paying an amount of Rs.29.68 Crores. It was the specific contention that the balance amount