Madhya Pradesh High Court
Bank Of Baroda vs Debt Recovery Appellate Tribunal ... on 12 April, 2022
Author: Vivek Rusia
- : 1 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
HON'BLE SHRI JUSTICE VIVEK RUSIA &
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 12th OF APRIL, 2022
WRIT PETITION No. 5494 of 2021
Between:-
VISHAL JAISWAL S/O RAJENDRA JAISWAL , AGED ABOUT 40
YEARS, OCCUPATION: BUSIENSS 102, CHANDRA SHEKHAR AZAD
MARG (MADHYA PRADESH)
.....PETITIONER
AND
NARESH SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 36 YEARS,
1. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
RAHUL SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 33 YEARS,
2. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
ABHIJEET SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 33 YEARS,
3. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
SMT. NIRMALA SONI W/O LATE SHRI ANIL SONI , AGED ABOUT 54
4. YEARS, OCCUPATION: HOUSEWIFE 253, M.G. ROAD, DEWAS
(MADHYA PRADESH)
BANK OF BARODA,THROUGH AUTHORIZED OFFICER DEWAS
5.
BRANCH 21, JAWAHAR CHOWK, DEWAS (MADHYA PRADESH)
.....RESPONDENTS
WRIT PETITION No. 5470 of 2021
Between:-
VIKAS JAISWAL S/O RAJENDRA JAISWAL , AGED ABOUT 40 YEARS,
OCCUPATION: BUSINESS 377, WARD NO 16, UJJAIN ROAD BANGAR
(MADHYA PRADESH)
.....PETITIONER
AND
1. SUNIL SONI S/O LATE SHRI KANHAIYALAL SONI , AGED ABOUT 56
- : 2 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
YEARS, OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
RAJENDRA SONI S/O LATE SHRI KANHAIYALAL SONI , AGED
2. ABOUT 54 YEARS, OCCUPATION: BUSINESS 253, M.G. ROAD DEWAS
(MADHYA PRADESH)
SMT. MADHURI SONI W/O SHRI SUNIL SONI , AGED ABOUT 54
3. YEARS, OCCUPATION: HOUSEWIFE 253 M.G. ROAD DEWAS
(MADHYA PRADESH)
AKSHAY SONI S/O SHRI SUNIL SONI , AGED ABOUT 27 YEARS,
4. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
BANK OF BARODA THR AUTHORIZED OFFICER 21, JAWAHAR
5.
CHOWK DEWAS (MADHYA PRADESH)
.....RESPONDENTS
WRIT PETITION No. 5478 of 2021
Between:-
SARITA MAHAJAN W/O HARISH MAHAJAN , AGED ABOUT 59
YEARS, OCCUPATION: HOUSE WIFE 78, TILAK NAGAR,
ANNAPURNA BHAWAN, A.B. ROAD (MADHYA PRADESH)
.....PETITIONER
AND
RAJENDRA SONI S/O LATE SHRI KANHAIYALAL SONI , AGED
1. ABOUT 54 YEARS, OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS
(MADHYA PRADESH)
BHANUPRIYA SONI W/O SHRI RAJENDRA SONI , AGED ABOUT 49
2. YEARS, OCCUPATION: HOUSEWIFE 253, M.G. ROAD, DEWAS
(MADHYA PRADESH)
NARESH SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 36 YEARS,
3. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
ABHIJEET SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 34 YEARS,
4. OCCUPATION: HOUSEWIFE 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
RAHUL SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 33 YEARS,
5. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
BANK OF BARODA, DEWAS BRANCH THROUGH AUTHORIZED
6.
OFFICER 21, JAWAHAR CHOWK, DEWAS (MADHYA PRADESH)
.....RESPONDENTS
- : 3 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
WRIT PETITION No. 6062 of 2021
Between:-
BANK OF BARODA THROUGH AUTHORIZED OFFICER DEWAS
BRANCH, 21 JAWAHAR CHOWK DEWAS (MADHYA PRADESH)
.....PETITIONER
AND
NARESHSONI S/O LATESHRI ANILSONI , AGED ABOUT 36 YEARS,
1. OCCUPATION: BUSINESS 253,M.G.ROAD. DEWAS (MADHYA
PRADESH)
RAHUL SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 33 YEARS,
2. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
ABHIJEETSONI S/O LATE SHRI ANIL SONI , AGED ABOUT 34 YEARS,
3. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
SMT. NIRMALA SONI W/O LATE SHRIANIL SONI , AGED ABOUT 54
4. YEARS, OCCUPATION: HOSUE WIFE 253, M.G. ROAD, DEWAS
(MADHYA PRADESH)
VISHAL JAISWAL S/O RAJENDRAJAISWAL , AGED ABOUT 40 YEARS,
5. OCCUPATION: BUSINESS 102, CHANDRA SHEKHAR AZAD MARG
(MADHYA PRADESH)
.....RESPONDENTS
WRIT PETITION No. 6065 of 2021
Between:-
BANK OF BARODA THR. AUTHORIZED OFFICER DEWAS BRANCH,
21, JAWAHAR CHOWK (MADHYA PRADESH)
.....PETITIONER
AND
SUNIL SONI S/O LATE SHRI KANHAIYALAL SONI , AGED ABOUT 56
1. YEARS, OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
RAJENDRA SONI S/O LATE SHRI KANHAIYALAL SONI , AGED
2. ABOUT 54 YEARS, OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS
(MADHYA PRADESH)
MADHURI SONI W/O SHRI SUNIL SONI , AGED ABOUT 54 YEARS,
3. OCCUPATION: BUSINESS 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
- : 4 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
AKSHAY SONI S/O SHRI SUNIL SONI , AGED ABOUT 27 YEARS,
4. OCCUPATION: HOUSEWFIE 253, M.G. ROAD, DEWAS (MADHYA
PRADESH)
VIKAS JAISWAL S/O SHRI RAJENDRA JAISWAL , AGED ABOUT 40
5. YEARS, OCCUPATION: BUSINESS 377, WARD NO 16, UJJAIN ROAD
BANGAR (MADHYA PRADESH)
.....RESPONDENTS
WRIT PETITION No. 6069 of 2021
Between:-
BANK OF BARODA DEWAS BRANCH THROUGH AUTHORIZED
OFFICER AUTHORIZED OFFICER 21, JAWAHAR CHOWK, DEWAS
(MADHYA PRADESH)
.....PETITIONER
AND
RAJENDRA SONI S/O LATE SHRI KANHAIYALAL SONI , AGED
1. ABOUT 54 YEARS, OCCUPATION: BUSINESS 253,M.G. ROAD. DEWAS
(MADHYA PRADESH)
BHANPURIYA SONI W/O SDSHRI RAJENDRA SONI , AGED ABOUT 49
2. YEARS, OCCUPATION: HOSUE WIFE 253,M.G. ROAD. DEWAS
(MADHYA PRADESH)
NARESH SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 36 YEARS,
3. OCCUPATION: BUSINESS 253,M.G. ROAD. DEWAS (MADHYA
PRADESH)
ABHIJEET SONI S/O LATE SHRI AIL SONI , AGED ABOUT 34 YEARS,
4. OCCUPATION: HOUSE WIFE 253,M.G. ROAD. DEWAS (MADHYA
PRADESH)
RAHUL SONI S/O LATE SHRI ANIL SONI , AGED ABOUT 33 YEARS,
5. OCCUPATION: BUSINESS 253,M.G. ROAD. DEWAS (MADHYA
PRADESH)
SMT. SARIYA MAHAJAN W/O SHRI HARISH MAHAJAN , AGED
6. ABOUT 59 YEARS, OCCUPATION: HOSEU WIFE 78, TILAK NAGAR
ANNAPURNA BHAWAN A.B. ROAD. DEWAS (MADHYA PRADESH)
.....RESPONDENTS
- : 5 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
Shri Akash Rathi, learned counsel for the petitioners - auction
purchasers.
Shri Vivek Phadke, learned counsel for the respondents 1 to 4 -
borrowers.
Shri Kshitij Vyas, learned counsel for respondent - Bank of
Baroda.
ORDER
Per Vivek Rusia, J :
As the identical issues are involved in all the aforesaid writ
petitions, therefore, they are being decided by this common order. For
the sake of convenience, facts narrated in W.P. No.5494/2021 are
being taken into consideration.
The petitioner has filed the present petition being aggrieved by
the order dated 9.2.2021 passed by Debt Recovery Appellate Tribunal
(DRAT), Allahabad in Appeal No.344/2020 whereby the objection in
respect of deposit of 50% of the debt due before entertaining the
appeal on merit has been rejected.
The facts of the case, in short, are as under :
1. Respondents No.1 to 4 (hereinafter referred to as "the
borrowers" for short) took financial assistance by way of a home loan
to the tune of 1,50,00,000/- from respondent No.5 - Bank of Baroda
(hereinafter referred to as "the bank" for short). In order to secure the
loan, the borrowers had mortgaged their property situated at Survey
No. 542/2/2/1, Patwari Halka No.18, Junior Dewas, District Dewas.
Upon committing the default of returning the loan amount, the bank
issued a demand notice dated 3.8.2019 under section 13(2) of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as
- : 6 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
"SARFAESI Act" for short) for a debt of Rs.,140,81,936/-. Thereafter,
a possession notice was issued on 10.10.2019. The borrowers
approached the Debt Recovery Tribunal (DRT) by filing Securitization
Application (SA) No.652/2019. The bank withdrew the above notice
and issued a fresh notice dated 13.1.2020 u/s. 13(2) of the SARFAESI
Act for the demand of Rs.1,40,81,936/- as outstanding debt from the
borrowers. Again, the bank withdrew this notice, therefore, the
aforesaid SA was dismissed as having been rendered infructuous.
According to the borrowers, approximately Rs.72,99,970/- has been
paid to the bank.
2. The bank has published the possession notice in daily
newspapers on 24.3.2020 during the nationwide lockdown period due
to Covid-19. Thereafter, the bank issued a sale notice under 8(6) of the
Security Interest Enforcement Rules, 2002 and put the mortgaged
property to auction on 17.8.2020. The borrowers again approached the
DRT by way of SA No. 240/2020 on 14.8.2020. The bank has
conducted the auction proceedings on 17.8.2020 in which the present
petitioner as one of the bidders offered the highest bid of
Rs.1,55,10,000/-. After acceptance of his highest bid, he deposited an
amount of Rs.37,77,500/- on the same day. The Authorised Officer
allowed the time till 30.10.2020 for depositing the remaining 75% of
the total amount. Thereafter upon deposition of the remaining amount
the bank has finalized the sale and the sale certificate was registered
on 23.11.2020 in favour of the auction purchaser i.e. the petitioner and
he was put into possession.
3. Vide order dated 13.11.2020, the learned DRT has dismissed the
SA as no irregularity was found in the measures taken by the bank for
recovery of the entire debt.
- : 7 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
4. Being aggrieved by the aforesaid order, the borrower
approached the DRAT by way of Appeal No.344/2020 along with an
application seeking waiver of deposit of amount under section 18 of
the SARFAESI Act. The said application was opposed by the present
petitioner and the bank as well. Vide order dated 9.2.2021, learned
DRAT has held that the bank has already recovered the debt, hence,
there is no amount of debt due, the requirement of pre-deposit is
satisfied and the borrower/appellants are not required to tender any
amount towards the condition of pre-deposit for entertaining the
appeal u/s. 18 of the SARFAESI Act.
5. Being aggrieved by the aforesaid order, the auction purchasers,
as well as the bank, have filed the present writ petitions before this
Court. The writ petitions came up for consideration on the question of
interim relief and vide order dated 18.1.2022 the Division Bench of
this Court has held that the demand notice was for a sum of
Rs.1,40,81,936 and the bank has recovered Rs.1,65,10,000/- which is
much more than the amount due, therefore, the impugned order passed
by DART does not call for any interference and the matter is required
to be considered finally.
Submissions of the petitioner
6. Shri Akash Rathi, learned counsel appearing for the
petitioner/borrower, submitted that the first proviso to Section 18(1) of
the SARFAESI Act provides that no appeal shall be entertained unless
the borrower has deposited with the Appellate Tribunal 50% of the
amount of debt due from him and the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to not less than
25%, but there is no provision of complete waiver of the aforesaid
amount in any of the circumstances. Hence, the DRAT has erred in
- : 8 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
law while passing the impugned order. Shri Rathi has relied on the
case of Manohar Infrastructure and Constructions Pvt. Ltd. V/s.
Sanjeev Kumar Sharma & others (Civil Appeal No.7098 of 2021
decided on 7.12.2021) in which the Apex court has considered the
scope of Section 51 of the Consumer Protection Act which also
mandates the deposit of amount before entertaining an appeal and held
that the object of the said pre-deposit condition is to avoid frivolous
appeals. Learned counsel has also placed reliance on another judgment
passed by the Apex Court in the case of Narayan Chandra Ghosh
V/s. UCO Bank : (2011) 4 SCC 548 in which it has been held that the
requirement of pre-deposit under sub-section (1) of Section 18 of the
act is mandatory and there is no reason whatsoever for not giving full
effect to the provisions contained in Section 18. It has further been
held that the deposit under the second proviso to Section 18(1) of the
Act is a condition precedent for preferring an appeal under the said
section, the Appellate Tribunal had erred in law in entertaining the
appeal without directing the appellant to comply with the said
mandatory requirement. The High Court of Bombay in the case of
Eskays Construction Pvt. Ltd. V/s. Soma Papers & Industries ltd. &
others : AIR 2017 Bom. 10 has held that the amount realised by the
bank in the auction proceedings cannot be adjusted or cannot be given
credit to the borrower for waiver of the deposit as section 18 has been
enacted to curve the unnecessary and frivolous litigation. Learned
counsel further submitted that the learned DRAT has placed reliance
on the judgment passed by the Allahabad High Court in the case of
M/s. Akash Ganga Airlines ltd. V/s. Debt Recovery Appellate
Tribunal, Allahabad that the amount of sale price received in an
auction is required to be considered while deciding the issue of pre-
- : 9 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
deposit u/s. 18 of the SARFAESI Act. Against the said order, SLP has
been preferred and the same has been entertained.
7. Shri Rathi, learned counsel for the petitioner, further submitted
that in the present case, the auction purchaser has deposited much
more than the amount due to the bank. Sale-certificate has been
registered and the possession has also been given, he has constructed
the house and while dismissing the SA, learned DRT has held that the
borrower has not shown any inclination to repay the loan amount,
therefore, the appeal is nothing but misuse of the right of appeal.
Hence, to entertain such type of an appeal, there should not be a
waiver of pre-deposit.
8. Shri Kshitij Vyas, learned counsel appearing for the
respondent/bank has supported the argument advanced by the learned
counsel for the petitioner and submitted that the amount realised by
the bank in an auction proceeding has nothing to do with the amount
which is liable to be deposited as a pre-condition to entertain the
appeal. Hence, the writ petition is liable to be dismissed.
Submissions of the respondent ....
9. Shri Vivek Phadke, learned counsel appearing for the borrower
contended that the learned DRAT has rightly held that as per proviso
to Section 18, the borrower is liable to deposit 50% of the debt due
from him. As of the date of filing of an appeal, there was no amount of
debt due against the borrower, therefore, there is no question of a
deposit of 50% of the total amount as a pre-deposit. The aforesaid
provision has been made in order to secure some amount from the
bonafide borrower whose case has been dismissed by the DRT and his
mortgaged property has been put to auction. In the present case,
during the pendency of the SA the bank has sold the mortgaged
- : 10 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
property, therefore, it cannot be said that the borrower was not
interested in the payment of the amount, hence there is no merit in the
petition and the same is liable to be dismissed.
Conclusion...
10. Section 2(ha) of the SARFAESI Act defines the word "debt"
and according to which, the debt shall have the meaning assigned to it
in clause (g) of section 2 of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (hereinafter referred to as "the Act of
1993" for short) and also includes an unpaid portion of the purchase
price of any tangible asset and any other contract, any right, title or
interest on any intangible asset or licence or assignment of such
intangible asset. According to Section 2(g) of the Act of 1993, "debt"
means any liability inclusive of interest that is claimed as due from
any person by a bank or a financial institution. According to aforesaid
both the definitions "debt" means any liability inclusive interest which
is claimed as to any due from the person by the bank or financial
institution.
11. Section 19 of the Act of 1993 provides that where a bank or a
financial institution has to recover any debt from any person, it may
make an application to the Tribunal within the local limits. Section
13(2) of the SARFAESI Act provides that where any borrower, who is
under a liability to a secured creditor under a security agreement,
makes any default in repayment of secured debt or any instalment
thereof, the secured creditor shall be entitled to exercise all or any of
the rights under sub-section (4) of Section 13. Sub-section (8) of
Section 13 provides that where any amount of dues of the secured
creditor together with all costs, charges and expenses incurred by him
are tendered to the secured creditor at any time before the date of
publication of notice for public auction, the secured assets shall not be
- : 11 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
transferred by way of assignment, lease or sale by the secured creditor.
Sub-section (10) of Section 13 provides that where the dues of the
secured creditor are not fully satisfied with the sale proceeds of the
secured assets, the secured creditor may file an application in the form
and manner as may be prescribed to the DRT having jurisdiction or a
competent court for recovery of the balance amount from the
borrower. Therefore, the bank or the secured creditor is entitled to file
an application before the DRT or a competent court to recover the
balance amount when the dues are not fully satisfied with the sale and
if the dues of the secured creditor are fully satisfied, then the secured
creditor or the bank cannot proceed further for any recovery.
12. In the present case, now the bank cannot proceed against the
borrower for recovery of any amount of the debt because the entire
amount of dues has been received by way of an auction sale. As on
today, there are no dues or debt against the borrower. U/s. 13 of the
SARFAESI Act and Section 17 of the Act of 1993, the bank can take
steps for the recovery of any debt.
13. The word "debt" means total outstanding against the borrower
at the time of taking measures by the bank or financial institute against
the borrower, and under the second proviso of Section 18(1) of the
SARFAESI Act the word is used is "amount of debt due", which
means, the borrower is liable to deposit 50% of the amount of debt
due and not the entire debt. For example in a situation where during
the pendency of any proceeding and before the filing of appeal before
DART, the borrower deposits some amount of debt under the order of
the Tribunal or suo motu and that amount so deposited is liable to be
adjusted in the amount due or debt, then the amount of debt get
reduces, hence the borrower is only liable to deposit as precondition
- : 12 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
50% of the amount of debt due.
14. In a given case where while deciding on a securitization
application the learned Tribunal determines any amount of debt or
dues payable to the bank by the borrower which is less than the actual
amount of debt or due at the time of filing of securitization
application, therefore, the second proviso of second 18 clarifies that
50% of the amount of debt due from him as claimed by the secured
creditor or determined by the Tribunal whichever is less.
Hence, the borrower is not liable to deposit 50% of the amount
of the debt as initially claimed by the secured creditor. The amount
payable at the time of appeal is called debt due or determined by the
Tribunal and whichever is less, is to be considered for depositing 50%.
In the present case, while dismissing the SA the learned DRT has held
that the bank has recovered the entire amount, even more than the
amount of debt i.e. Rs. 24,28,064/- by way of an auction sale.
Therefore, at the time of filing an appeal, there is no amount
determined by the learned DRT as a debt against the
respondent/borrower and there was no debt due against the borrower
because the bank had received it from the petitioner/ auction
purchaser. Now the bank cannot initiate the proceedings for recovery
of debt against the borrower as there is no debt.
15. Section 20 of the Act of 1993 provides an appeal to the DRAT
against the order of DRT. Section 21 of the Act of 1993 provides the
pre-condition of deposit of 75% of the amount of debt so due from
him as determined by the DRT u/s. 19. Here in the Act of 1993 also,
there is no precondition of deposit of 75% of the entire debt amount,
but 75% of the amount determined by the DRT under section 19.
16. In view of the above discussion, the learned DRAT has not
- : 13 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
committed any error of law while passing the impugned order. In the
considered opinion of this Court, the appeal of the borrower has
rightly been entertained without the pre-deposit of 50% of the debt
due under the second proviso of section 18 of SARFAESI Act. In view
of the foregoing discussion, all these petitions deserve to be and are
hereby dismissed. Let a photocopy of this order be retained in each
connected case.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.04.19 18:53:49 +05'30'
- : 14 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
WRIT PET. (SERVICE) No. 1617 of 2005
Case Number W.P. No.5494/2021, W.P. No.5470/2021, W.P. No.5478/2021,
W.P. No.6062/2021 & W.P. No.6069/2021
Parties Name Vishal Joshi Vs. Naresh Soni and others (connected
cases)
Date of Order /04/22
Judgment delivered by Justice Vivek Rusia
Whether approved for Yes
reporting
Name of counsel for Shri Akash Rathi, learned counsel for the
parties petitioners - auction purchasers.
Shri Vivek Phadke, learned counsel for the
respondents 1 to 4 - borrowers.
Shri Kshitij Vyas, learned counsel for
respondent - Bank of Baroda.
Law laid down As per definition the word "debt" means
total outstanding against the borrower at the
time of taking measures by the bank or
financial institute against the borrower, but
under the second proviso of section 18(1) of
the SARFAESI Act the word is used is
"amount of debt due", which means, the
borrower is liable to deposit 50% of the
amount of debt due and not the entire debt
before filing an appeal before the DART
under section 18 of the SARFAESI Act.
The second proviso of second 18 further
makes it clear that 50% or 25% as the case
may be, of the amount of debt due from him
as claimed by the secured creditor or
determined by the Tribunal whichever is less.
Section 20 of the Act of 1993 provides an
appeal to the DRAT against the order of DRT.
Section 21 of the Act of 1993 provides the
pre-condition of deposit of 75% of the amount
of debt so due from him as determined by the
DRT u/s. 19. Here in the Act of 1993 also,
there is no precondition of deposit of 75% of
the entire debt amount, but 75% of the
- : 15 :-
W.P. Nos. 5494/2021, 5470/2021,
5478/2021, 6062/2021, 6065/2021 & 6069/2021.
amount determined by the DRT under section
Significant paragraph 10 to 15
numbers
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Digitally signed by ALOK GARGAV
Date: 2022.04.19 18:54:22 +05'30'
Alok/-
