Bombay High Court
Jaisingrao Subrao Ghodke vs The Union Of India And Others on 29 June, 2017
Bench: Anoop V. Mohta
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.6722 OF 2017
Mr. Jaisingrao s/o Subrao Ghodke
Age 60 years, Occupation Retired
Government Servant,
R/o Plot No.5, S.No.35/2/1,
Tambari, Umbare Kotha, Osmanabad ... PETITIONER
VERSUS
1. The Union of India,
(Copy to be served on Standing
Counsel of Union of India)
2. Central Bank of India,
At present Regional Office at
Aurangabad, 5-5-72,
New Osmanpura, Aurangabad
3. M/s Niranjan Alloy Steel Private Limited
Gut No.83, 24 KM Stone, Bidkin Village,
Aurangabad Paithan Road,
Taluka Paithan,
District Aurangabad. ... RESPONDENTS
.....
Shri N.B. Suryawanshi, Advocate for petitioner
Shri D.G. Nagode, Advocate for respondent No.1
Shri K.B. Deshapnde, Advocate for respondent No.2.
Shri S.C. Bhosale, Advocate for respondent no.3.
.....
WRIT PETITION NO.8263 OF 2017
Smt. Nalini w/o Shripatrao Jadhav,
Age 73 years, Occu. Senior Citizen,
R/o Plot No.18 & 34, CIDCO,
Aurangabad ... PETITIONER
::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:04:57 :::
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
2
VERSUS
1. The Union of India,
(Copy to be served on Standing
Counsel of Union of India)
2. Central Bank of India,
At present Regional Office at
Aurangabad, 5-5-72,
New Osmanpura, Aurangabad
3. M/s Niranjan Alloy Steel Private Limited
Gut No.83, 24 KM Stone, Bidkin Village,
Aurangabad Paithan Road,
Taluka Paithan,
District Aurangabad. ... RESPONDENTS
.....
Shri A.M. Karad, Advocate for petitioner
Shri D.G. Nagode, Advocate for respondent No.1
Shri K.B. Deshapnde, Advocate for respondent No.2.
Shri S.C. Bhosale, Advocate for respondent no.3.
.....
CORAM: ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
DATED: 29th June, 2017.
ORAL JUDGMENT (Per Anoop V. Mohta, J.):
1. Rule. Rule made returnable forthwith and heard
finally with the consent of learned counsel appearing for the
parties.
2. Learned counsel for the petitioners, on instructions,
restrict their submission and prayer mainly against impugned
order dated 4/5/2017. All other prayers are not pressed.
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
Therefore, we are not dealing with the same at this stage and
those points are kept open.
3. These writ petitions are filed by the guarantors
against impugned order dated 4/5/2017, whereby the petitioner/
appellants' applications for waiver as contemplated under Section
21 of the Recovery of Debts and Bankruptcy Act, 1993 (for short
the R.B.D. Act) has been considered, but by passing the following
order :
"I am of the view prima facie grounds to
entertain appeal are to be seen to consider waiver
application under Section 21 of the Act is to
entertain the appeal, I deem it appropriate to
direct the appellant to deposit a sum of Rs.3.5
Crores which is roughly 50% of decretal amount
as on date with interest within a period of 8
weeks.
Appellant shall deposit above referred
amount on or before 29/06/2017, within Registrar,
DRAT, Mumbai, failing which appeal stands
rejected automatically.
As and when the said amount is deposited it
shall be invested in Term Deposit in the name of
Registrar, DRAT, Mumbai with respondent Bank,
initially for a period of thirteen months and
thereafter it will be renewed periodically.
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
Stand over to 30/06/2017 for compliance.
Appellant is at liberty move stay application
after making deposit."
4. A Division Bench of this Court, in Sterlite
Technologies Ltd. Vs. Union of India & ors. [2012(2)
Mh.L.J., 112], though based upon the earlier provisions of the
Act, but dealing with the aspect of waiver, keeping in mind the
power and authority of the appellate Tribunal, while evaluating
the merits of the case to grant waiver as prayed, has recorded as
under :
"6. The Appellate Tribunal in its appellate jurisdiction
is required to evaluate as to whether a prima facie case
has been made out for the grant of waiver. Hence, with
respect, we are unable to subscribe to the position as set
out in paragraph 20 of the judgment of the DRAT quoted
above.
7. Counsel appearing on behalf of the Fourth
Respondent relied upon a decision of a Division Bench of
the Madras High Court in Malini Srinivasan Vs. Canara
Bank, AIR 2009 Mad. 94. In that case, as the judgment
of the Division Bench would indicate, the DRAT noted
that the Tribunal had in fact reduced the amount to be
deposited to about 25% of the debt determined.
Obviously, therefore, there was an application of mind by
the DRAT to the merits of the rival contentions.
8. Since the DRAT has not considered the application
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
for waiver in terms of the legal position as elaborated in
the previous paragraph of this judgment, which is
consistent with the provisions of section 21, we set aside
the impugned order of the Appellate Tribunal and restore
the application for waiver of deposit to the file of the
Appellate Tribunal for a decision afresh. On the request
of the Fourth Respondent, we expedite the disposal of
the application and would request the Appellate Tribunal
to endeavour a disposal preferably within a period of two
months."
5. After considering the rival submissions made by the
counsel appearing for the parties, we are inclined to interfere
with it also because of following observations, in common order:
"But I am not in agreement with the
submission of ld. Counsel for appellant because
of the plea that is taken. If that issue is
decided at this stage of waiver application,
regarding discharge it would amount to
accepting the appellants' case at the stage of
waiver itself."
6. The learned authority, thereby not given a prima
facie finding to deal with the contentions/ submissions so raised
by the appellants/ petitioners in their respective waiver
applications. The judgment in the matter of Sterlite Technologies
Ltd. (supra) made the position very clear that the appellate
authority need to deal with the prima facie case for granting the
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
waiver. The observations, even if made, on such application, in
no way considered or stated to be final for deciding the main
appeal. In the interest of justice and to give equal opportunity to
contest the issue, which is available for the aggrieved parties/
appellants/ petitioners. The petitioners are guarantors, we see
no reason for the appellate Tribunal not to deal with the
contention though in prima facie nature and pass appropriate
order keeping in mind related provisions and/or restricting not
less than 25% of the amount of debt due as determined by the
Debts Recovery Tribunal.
7. One more facet, which in our view, is required to be
considered by the appellate Tribunal whether the sum ordered on
such waiver application required to be deposited or need to be
divided into three, as there are three appellants/ petitioners
and/or whether the amount is required to be deposited by
individual petitioners/ appellants separately or the deposit by one
party out of three is sufficient. This issue also requires
consideration and the detailed reasons to avoid further
complications in proceeding with the matter further. This is also
in the interest of the respondent Bank that the appellate
authority, while passing the order of waiver, and/or deposit,
make the position clear to the individual appellant and/ or the
parties when common order is passed by the Debts Recovery
Writ Petition No.6722/2017 with
Writ Petition No8263/2017
Tribunal.
8. Therefore, taking overall view of the matter, a case is
made out for the above reasons to interfere with the impugned
order so passed, with directions to the appellate authority to deal
with the individual application for waiver of deposit in accordance
with law, keeping in mind the observations so made above.
9. Therefore, the following order :
ORDER
10. The impugned order dated 4/5/2017, passed by the
learned Debts Recovery Appellate Tribunal, Mumbai is quashed
and set aside. The waiver applications filed by the appellants/
petitioners are restored. The same be decided in accordance
with law, as early as possible, preferably within a period of two
months. Writ Petition is accordingly allowed. Rule made
absolute in above terms.
11. All other points are kept open. No costs.
(SUNIL K. KOTWAL) (ANOOP V. MOHTA)
JUDGE JUDGE
fmp/
