C. M. W. P. No.58713 of 2008

15th November, 2008

Petitioner Counsel: VIKRAM D. CHAUHAN
Respondent Counsel: G. P. AGARWAL, PUSHPA SINGH

Cases Cited:
M/s. Rizvi Export Limited Vs. State Bank of India, A. No.647/2006, Dt.16-9-2008 [Para PARA3]
M/s. Kams Leatherware Ltd. Vs. Punjab National Bank, AIR 2007 P & H 175 [Para PARA11]

JUDGMENT

-Heard learned counsel for the petitioners and Sri G. P. Agarwal, learned counsel for respondent No.1. Perused the record.

2. In view of the nature of order proposed to be passed respondent Nos.2 to 5 need not be heard at this stage.

3. This writ petition has been filed by the petitioners against an interim order dated 16-9-2008 in Appeal No.647 of 2006. M/s. Rizvi Export Limited and others Vs. State Bank of India passed by the Debts Recovery Appellate Tribunal, Allahabad whereby the Appellate Tribunal has directed the petitioners to deposit 20% only of the total amount to the tune of Rs.1,89,38,751.44 paise within a period of one month as pre-condition for filing appeal under Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as the Act).

4. Section 21 of the Act provides that where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him as determined by the Tribunal under Section 19.

5. Learned counsel for the petitioner has placed reliance upon the proviso to Section 21 of the Act which provides that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this Section. He has taken the Court through the operative portion of the impugned order dated 16-9-2008 appended as Annexure-10 to the writ petition which is as under:-

"Keeping in view the arguments advanced by both the parties and after going through the observations made by his Lordship, the then Chief Justice, Delhi High Court, H.M.J. Markandey Katju in a Division Bench case reported in Jamshed M. Pandey and another Vs. Indian Renewable Energy Dev, AG 2007(1) Bankers Journal 653. I hereby admit the appeal subject to appellant's depositing 20% only of total amount to the rune of Rs.1,89,38,751.44 paise minus interest, within one month in the form of Demand Draft with the Registrar of this Court, who will deposit the same in Nationalized Bank for a period of six months, without prejudice to the rights of the parties. The case is fixed for showing compliance of this order on 31-10-2008."

6. It appears from the impugned order that the writ petitioners had taken loan in the year 1996-97 which they had failed to repay the same. The Stale Bank of India filed Original Application for recovery of the said amount which was rejected vide order dated 1-10-2002. Aggrieved by the aforesaid order, the petitioners filed an appeal before the DRAT which was allowed vide order dated 1-9-2005 and the matter was remanded back to the DRT, Allahabad for rehearing of the case.

7. It further appears that on 21-11-2005 the case was decided ex parte against which the aforesaid appeal was filed before the Appellate Tribunal which has passed the impugned order directing 20% only of total amount i.e. Rs.1,89,38,751.44 paise to be deposited under Section 21 of the Act.

8. The contention of learned counsel for the petitioners is that the petitioners have filed an appeal along with an application for waiver of the pre-condition deposit as laid down under Section 21 of the Act but the Appellate Tribunal has not applied its mind to the facts and circumstances of the case and instead of waiver of the statutory amount required for filing of the appeal has directed the petitioners to deposit 20% only of the total amount i.e. Rs.1,89,38,751.44 paise within a period of one month as pre-condition for entertaining the appeal. He has laid great emphasis upon the properties/assets being taken over by the Bank and states that he is only to deposit the amount as they had nothing in their possession.

9. Admittedly also, the petitioners were directed to deposit 20% only of the total amount within a period of one month from the date of the order i.e. 16-9-2008. They have neither deposited the amount nor have filed any application for extension of time to deposit the amount.

10. Learned counsel for the petitioners has produced a certified copy of the order dated 31-10-2008 by which they had sought time from the DRT for adjournment of the case on the ground that they will file writ petition before the High Court by 4-11-2008. It appears from the affidavit filed along with the writ petition that even undertakings given by the petitioners that they will file writ petition by 4-11-2008 has not been complied with as this writ petition has been sworn in on 10-11-2008 and has been filed on 11-11-2008.

11. Learned counsel for the petitioner has placed reliance upon a judgment reported in AIR 2007 Punjab and Haryana 175, M/s. Kams Leatherware Ltd. Vs. Punjab National Bank and others wherein their Lordships after noticing the fact have held in paragraphs 3 and 6 of the judgment that the hypothecated goods worth Rs.25,000/- were perishable in nature. The Court in these peculiar facts had directed that the appeal be proceeded without depositing a sum of Rs.5 lacs which was required as pre-condition in the order passed by the Tribunal under Section 21 of the Act and had quashed the order to that extent.

12. In the instant case, the petitioners have taken loan amounting to Rs.1,89,38,751.44 paise from the State Bank of India and only 20% of total amount has been directed to be deposited.

13. The contention of Sri G. P. Agarwal, learned counsel for the respondents is that the petitioners had taken loan as far back as in the year 1996-97 and has not paid even a single paise to the bank and that the Appellate Tribunal has also noted the arguments advanced by both the parties that the appellant had failed to file the latest balance sheet which was prepared by the petitioners' own Chartered Accountant in the year 2005 and that the petitioners had also siphoned the bank's amount for his private purposes.

14. After hearing the counsel for the parties it is apparent that the Court below thereafter keeping in view of the aforesaid fact has passed the impugned order directing the petitioners to deposit 20% only of the total amount i.e. Rs.1,89,38,751.44 paise. The petitioners have not paid even a single paise to the bank, hence, in my opinion, the Court below has taken a lenient view for directing the petitioners to deposit 20% only of the total amount.

15. For all the reasons stated above I do not find any illegality or infirmity in the impugned order and the Court is not inclined to interfere in the matter against the interim order.

16. The writ petition is accordingly, dismissed. No order as to costs.

Petition dismissed.