Bombay High Court
Mahatma Gandhi Vidyamandir vs Religare Finvest Limited on 22 January, 2025
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-OS:1102-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by BHARAT
DASHARATH
PANDIT
WRIT PETITION (L) NO. 189 OF 2025
Date: 2025.01.24
14:23:41 +0530
Mahatma Gandhi Vidya Mandir, )
a Trust registered under the Bombay )
Public Trusts Act, 1950 having )
registered Office at KBH Dental Building, )
Mumbai Agra Road, Panchavati, )
Nashik - 422 003 ) ..... Petitioner.
V/s
1] Religare Finvest Limited, a company )
incorporated under the Companies Act, )
1956 having Branch Office at Lucky )
Corner, Office No.406, 407, 4th floor, )
Chakala, Andheri - Kula Road, Andheri )
(East), Mumbai -400 099 through its )
Authorised Officer )
)
2) Pushpa Veyankatrao Hiray )
)
3) Smita Prashant Hiray )
)
4) Apoorva Prashant Hiray )
)
5) Prashant Veykantrao Hiray )
all having address at KBH Dental Building, )
Mumbai Agra Road, Panchavati, )
Nashik - 422 003 ) ..... Respondents.
----
Mr. Rohan Cama with Mr. Siddharth Samantaray & Mr. T. N. Tripathi i/b
T.N. Tripathi & Co., Advocates for the petitioner.
Mr. Archit Virmani (Through VC) with Mr. Atul Gupta, Advocates for
respondent no.1.
-----
CORAM : A.S. CHANDURKAR &
M. M. SATHAYE, JJ.
DATE : 22nd JANUARY, 2025
1/6
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ORAL JUDGMENT: (Per A.S. Chandurkar, J.)
1] Rule. Rule made returnable forthwith and heard learned counsel for
the parties.
2] The challenge raised is to the order dated 17/12/2024 passed by
the Debts Recovery Appellate Tribunal - DRAT on the application for
waiver moved by the petitioner under Section 18(2) of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2022 (for short, Act of 2002). The principal contention
raised by the learned counsel for the petitioner is that while issuing notice
under Section 13(2) of the Act of 2022 on 15/06/2022, it was stated
therein that the amount outstanding was Rs 13,40,24,954.78. After this
notice was issued, the petitioner made payment of Rs 1 crore on
30/11/2022, further amount of Rs 1 crore on 20/08/2024 and amounts
of Rs 50 lakhs each on 16/09/2024 and 30/09/2024 respectively. As a
result, an amount of Rs 3 crores was paid after issuance of the notice
under Section 13(2) of the Act of 2002. It was submitted that the learned
Chairperson failed to take into consideration the deposits made post
issuance of the Section 13(2) notice and considered the figure of
Rs 13,40,24,954.78 as the amount of "debt due". On that basis, the
petitioner was directed to deposit a sum of Rs 6 crores under Section
18(2) of the Act of 2002 as a condition precedent for entertaining the
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appeal which was about 44.77% of the debt due. To substantiate his
contentions, the learned counsel for the petitioner placed reliance on the
decisions in Sidha Neelkanth Paper Industries Private Limited Vs. Prudent
ARC Limited and Others, 2023 OnLine SC 12 and Kotak Mahindra Bank
Private Limited vs. Ambuja A. Kasliwal and Others , (2021) 3 SCC 549. It
was also urged that discretion to the extent of 25% deposit ought to have
been exercised in the light of the fact that an Arbitral Award had been
passed in the proceedings between the parties on 09/08/2019. Only on
the ground that there was failure on the part of the petitioner to settle the
dues, the ad-interim relief that was granted earlier on 20/08/2024 came
to be vacated. It was thus submitted that the order passed by the DRAT
called for interference.
3] The learned counsel appearing for respondent no.1 opposed the
aforesaid submissions. According to him, the conduct of the petitioner
indicated that it had no intention whatsoever of repaying the amount of
dues and hence the discretion exercised by the DRAT while passing the
order of pre-deposit did not call for any interference. He further
submitted that as the notice under Section 13(2) had been issued on
15/06/2022, the amount of interest accrued till date was also required to
be taken into consideration. To support his submissions, the learned
counsel placed reliance on the decision in Writ Petition No.797 of 2024
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(Sony Mony Developers Pvt. Ltd & Ors. vs. Asset Care & Reconstruction
Enterprises & Anr) decided on 29/01/2024. The writ petition was
therefore liable to be dismissed.
4] We have heard the learned counsel appearing for the parties and we
have perused the documents on record. The issue pertains to determining
the amount of pre-deposit as condition for entertaining the appeal
preferred by the petitioner. Under Section 18(1) of the Act of 2022,
subject to a minimum deposit of 25% of the debt due, a discretion is
vested with the Presiding Officer to consider issuing a direction to deposit
an amount between 50% to 25% of the debt due. It is not in dispute that
the amount of Rs 13,40,24,954.78 has been mentioned in the notice
issued under Section 13(2) of the Act of 2002 dated 15/06/2022. It is
further not in dispute that after issuance of the said notice, an amount of
Rs 3 crores has been paid on various occasions particularised above. The
learned Chairperson in an order passed on 30/05/2024 in Interim
Application No.367 of 2024(WoD) in Appeal on Diary No.1117/2024
(Merchant Real Estate Pvt. Ltd. & Ors. vs. Aditya Birla Finance Ltd. ) has
taken this aspect into consideration and has deducted the amounts paid
after issuance of the notice under Section 13(2) of the Act of 2002 while
determining the amount of pre-deposit. Having considered the ratio of
the decision in Sidha Neelkanth Paper Industries Private Limited (supra),
we are of the view that the payment made after issuance of the notice
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under Section 13(2) of the Act of 2002 ought to be deducted while
determining the amount of pre-deposit. The same not having been done
in this case and warrants interference in that regard.
5] As regards determination of the amount that is required to be taken
into consideration while stipulating the amount of pre-deposit, it may be
noted that in paragraph 3 of the impugned order, the amount as
mentioned in the notice given under Section 13(2) of the Act of 2002 has
been considered. This finding not having been challenged by the
respondent no.1, we are not inclined to go into the aspect as to whether
the same is correct in this writ petition filed by the borrower.
Insofar as exercise of discretion of directing the petitioner to
deposit 44.77% of the amount of the debt due, we do not find any reason
to interfere with the exercise of such discretion. The learned Chairperson
has given reasons while directing the deposit of an amount equivalent to
44.77% of the amount of debt due. To that extent, we are not inclined to
interfere with the impugned order.
6] In the light of the aforesaid discussion, the only modification
called for in the impugned order is to treat the amount of debt due as
Rs 10,40,24,954.78 after deducting an amount of Rs 3 crores that has
already been paid by the petitioner. 44.77% of the aforesaid amount
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comes to Rs 4,65,71,971/-. Since the amount of Rs 1 crore has been
deposited in terms of order dated 17/12/2024 for maintaining the appeal,
the petitioner would be required to deposit the balance amount of
Rs 3,65,71,971/- within a period of four weeks from today. In case, the
aforesaid amount is not deposited within a period of four weeks from
today, the appeal preferred by the petitioner would be liable to be
dismissed for non-compliance of this direction of pre-deposit. In case the
aforesaid amount is deposited by the end of the period of four weeks, the
interim order dated 17/12/2024 would continue for further period of ten
days.
7] It is clarified that all issues on merits are kept open for being
considered by DRAT in accordance with law. Any observations made in
this judgment are only for the purposes of considering challenge to the
impugned order.
8] Rule is disposed of in the aforesaid terms with no order as to costs.
[ M. M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
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