Joginder Kaur And Co-Owners, ... vs Punjab And Sind Bank
2005 Latest Caselaw 432 Del

JUDGMENT

B.A. Khan, J.

1. Petitioners are facing a recovery of Rs.65,94,618.19/- Along with pendente lite and future interest at 12 per cent per annum with quarterly rest and costs. They have challenged the certificate of recovery passed by DRT before DRAT. Along with their appeal, they also filed an application for waiver of pre-deposit under Section 21 of the DRT Act. The case set up by them in their application is that during the pendency of the recovery proceedings before DRT, they had paid about Rs.50 lacs or so and that they have a meager income of Rs.35,000-40,000 per annum from their agricultural yield and that petitioner no.1 was suffering from complicated health disorders and required a lot of money to be spent on her and that third appellant had no source of income and did not have any movable assets of significant value. It was, therefore, claimed that the requirement of satisfying the pre-deposit was onerous to them.

2. This application was contested by the respondent bank claiming that these appellants were owing land at various places and that one of them had sold some acres of land.

3. On consideration of this, DRAT disposed of petitioners application requiring them to deposit 40 per cent of the decretal amount by impugned order dated 17.12.2004.

4. Petitioners challenge this order on the ground that the amount borrowed by them was Rs.15.8 lacs or so and as against that they had already paid Rs.50 lacs or so which was not taken in regard by the DRT while passing the recovery certificate. It is also submitted that these properties were under mortgage with the Bank and they had no capacity or resources to deposit another Rs.60-70 lacs as pre-deposit which was bound to cause enormous considerable prejudice and loss.

5. It appears from the perusal of the impugned order that the petitioners claim of having paid about Rs.50 lacs during the proceedings before DRT had gone unattended by the Tribunal. It is also the admitted position that petitioners properties stood mortgaged with the Bank. Moreover respondent on its own showing had indicated an outstanding of Rs.16 lacs and odd against petitioners in its written submission dated 24.09.2001. In our view, merely owning some land by the petitioners which may or may not earn any income would not necessarily suggest that they possessed the requisite source or capacity to make a pre-deposit running into Rs.60-70 lacs. It is not the Bank's case that their income from the lands was so much as to enable them to make the pre-deposit. It also appears to have gone unnoticed that the principal amount borrowed by them was Rs.15.8 lacs and odd as against which they had admittedly paid Rs.40.98 lacs.

6. All this persuades us to tone down the conditions imposed in the impugned order dated 17.12.2004 passed by DRAT and to modify it by providing as under :-

"Petitioners shall now deposit only Rs.16 lacs within four weeks to satisfy the requirement of pre-deposit under Section 21 of the DRT Act. DRAT is directed to proceed with their appeal and to dispose it of under law."

7. At this stage, it is submitted by learned counsel for petitioners that DRAT is practically not functional as the ad hoc Chairman holding additional charge had proceeded on leave and, therefore, it was not possible for them to seek consideration of their appeal or the interim stay matter. We are informed that the Chairman would return sometime on 15th April, 2005 or so.

8. Because of this learned counsel for the petitioners prays that petitioners be protected by staying the recovery certificate or else there appeal would be rendered infructuous if respondent bank was allowed to go ahead with the execution of the recovery certificate.

In view of the submissions made, operation of the impugned order dated 22.01.2004 in the appeal before DRAT shall remain stayed till 3rd May, 2005 to enable petitioners to obtain appropriate orders from the DRAT.