Allahabad High Court
Shri Bankey Lal Gupta And Another vs Bank Of Baroda And Another on 16 September, 2011
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 2
Case :- WRIT - C No. - 53762 of 2011
Petitioner :- Shri Bankey Lal Gupta And Another
Respondent :- Bank Of Baroda And Another
Petitioner Counsel :- Arun Kumar Gupta,Rajesh Kesharwani
Respondent Counsel :- Anadi Krishna Narayana
Hon'ble Sudhir Agarwal, J.
1.Heard Sri Arun Kumar Gupta, learned counsel for petitioner, learned counsel appearing for respondents and perused the record.
2.Writ petition is directed against the order dated 4.8.2011 passed by Debt Recovery Appellate Tribunal requiring the petitioner to deposit 60 per cent of decreed amount in order to maintain the appeal under Section 20 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "1993 Act").
3.Learned counsel for petitioner submitted that due to great financial hardship, petitioner was not in position to deposit requisite amount but this aspect has not bee considered by the Appellate Tribunal. He also submitted that he filed an affidavit along with the appeal and the Appellate Tribunal has misread observing that application for waiver was not supported by affidavit. He drew my attention to his affidavit which he has filed along with his memo of appeal.
4.However, I find no reason to interfere with the impugned order. The waiver application which is on page 72 of the writ petition contain only 5 paragraphs in which the only ground taken by the petitioner was his financial and economic hardship. The affidavit is on page 69 of the writ petition which shows that it has sworn contents of memo of appeal along with its annexures but there is no swearing of the contents of waiver application. No separate affidavit accompanying waiver application was filed. In what manner the paragraphs of waiver application were sworn is not clear. On the contrary, it is evident that in the affidavit filed along with memo of appeal only the contents of appeal and its enclosures were sworn and that too without clarifying as to on what basis the swearing is made. So far as the waiver application is concerned, there is no such affidavit. The Tribunal, therefore, has rightly held that the waiver application is not supported with affidavit.
5.Be that as it may, the only ground taken by petitioner is his financial hardship. Section 21 of 1993 Act contemplates that an appeal can be preferred along with payment of 75 % of the amount of debt so due as determined by the Tribunal under Section 9. This is normal procedure of filing the appeal. However a discretion has been granted to Appellate Tribunal to waive or reduce the amount to be deposited under Section 21 but the Appellate Tribunal has to record reasons in writing therefor. The deposit is normal rule and lesser or no deposit is an exception. In order to attract the exception, an appropriate ground has to be shown by the appellant. The mere financial hardship can not be a ground for asking the Tribunal to exercise waiver for the reason here is a Statute which entitles the Bank to file suit against the loanee or creditor who has not repaid the amount taken from the Bank and the reason for default may include financial hardship. Therefore, the very reason for the Bank to approach the Tribunal under 1993 Act may be the default on the part of creditor/loanee which may be on account of financial hardship. When a suit is decreed, it would make no difference whether there was any financial hardship to the creditor or not. Once the decree has been passed, for the purpose of appeal, unless it is shown that the amount decreed is excessive or in law is not recoverable or is otherwise illegal, mere financial hardship, in my view, would not be a relevant consideration for exercising power of waiver under proviso to Section 21. No authority taking a different view has been cited before this Court.
6.I the circumstances, I find no error apparent on face of record in the impugned order warranting interference.
7.Dismissed.
Dt. 16.9.2011
PS
