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NONREPORTABLE
| IN THE SUPREME COURT OF INDIA | | |
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| CIVIL APPELLATE JURISDICTION | |
| CIVIL APPEAL NO. 1902 OF 2020 | |
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| (@ SPECIAL LEAVE PETITION (CIVIL) NO.28608 OF 2019) | | |
Versus
| RAJAT INFRASTRUCTURE PVT. | | | | | |
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| LTD. & ORS. | | | | | |
WITH
| CIVIL APPEAL NO. 1903 OF 2020 | |
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| (@SPECIAL LEAVE PETITION (CIVIL) NO.1753 OF 2020) | | |
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. These appeals were initially directed against the order dated
25.11.2019 of the Bombay High Court. By the said impugned order
Signature Not Verified
the High Court had relegated the appellant before it i.e. respondent
Digitally signed by
MUKESH KUMAR
Date: 2020.07.08
15:20:55 IST
Reason:
no. 1 herein to avail the statutory remedy of appeal before the Debt
Recovery Appellate Tribunal (for short ‘the DRAT’).
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3. The short question which arises for determination is whether
the High Court was right in directing that predeposit was not
required for entertaining an appeal before the DRAT as mandated
by Section 18 of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short
‘SARFAESI Act’).
4. It is not necessary to set out the facts of the case in detail in
view of the decision which we propose to take. The basic facts are
that the respondent no. 1 stood guarantee and mortgaged its
property for repayment of loan availed by respondent nos. 4 and 5.
The property which is in possession of respondent nos.2 and 3 who
are alleged to be the leaseholders was put to auction and
respondent no.6 was the highest bidder for a sum of Rs.66.52
crores. The main objection of the respondent no.1 to the sale is
that it is for a low amount and there is collusion between the
officers of the Bank and the auction purchaser. The petitioner
challenged the order of the DRAT dated 11.11.2019 before the High
Court and the High Court passed the following order dated
25.11.2019:
“ . Relegating the Petitioner to the appellate remedy on
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account of aforenoted facts and holding that the
Petitioner has an efficacious alternate remedy of appeal
before the learned DRAT where no predeposit is
required, the Petition is rejected without making any
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observation on the merits of the disputes between the
parties.”
5. It appears that the successful bidders filed review petitions
before the High Court praying that the High Court could not have
issued directions that no predeposit was required. Vide order
dated 16.12.2019 the High Court dismissed the review petition and
the relevant observations of the High Court are as under:
“ 7 . Suffice it to state that where a proposed sale notice is
questioned with reference to the reserve price fixed and
the argument takes the form of considering valuation
report, such order, if challenged before DRAT, would not
require any predeposit being made for the reason under
the impugned order, no decree has been passed or
liability fixed. It would depend on the nature of the order
whether before the appeal there against is entertained,
should a predeposit be made.”
6. Mr. O.P. Gaggar, learned counsel for the appellant submitted
that the order of the High Court is not only against the provisions of
the Act but also against the law laid down by this Court. Mr.
Dushyant A. Dave, learned senior counsel for the auction
purchasers, respondent no.6, supported the case of the appellant
and submitted that the no appeal on behalf of respondent no. 1 can
lie without complying with the provisions of Section 18 of the
SARFAESI Act which mandates the deposit of 50% or at least 25%
of the amount due, as claimed by the secured creditor or
determined by the Debt Recovery Tribunal (DRT). On the other
hand, Mr. Vikram Chaudhri, learned senior counsel appearing for
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the respondent no.1 urged that the High Court has exercised its
discretionary jurisdiction under Article 226 of the Constitution of
India while holding that it is not required to make predeposit. He
also submits that the respondent no.1 is not a borrower and finally
submits that the main ground is that since the amount offered by
the highest bidder is below the value of the property, the DRAT is
entitled to entertain the appeal without deposit of any amount. It is
submitted that the value of the property is about Rs.160 crores and
even the value as per the circle rate is about Rs.120 crores, but the
same has been sold for a pittance of Rs.65.52 crores. He also
submitted that there is collusion between the employees of the
Bank and the successful bidders.
7. We may make it clear that we are not going into the merits of
the case in view of the fact that we agree with the High Court that
the matter must be decided by the DRAT. The only issue is whether
the High Court was right in holding that no predeposit was
required. We may refer to Section 18 of the SARFAESI Act, which
reads as follows:
“ . .—(1) Any person
18 Appeal to Appellate Tribunal
aggrieved, by any order made by the Debts Recovery
Tribunal under section 17, may prefer an appeal along
with such fee, as may be prescribed to an Appellate
Tribunal within thirty days from the date of receipt of the
order of Debts Recovery Tribunal.
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Provided that different fees may be prescribed for filing
an appeal by the borrower or by the person other than
the borrower:
Provided further that no appeal shall be entertained
unless the borrower has deposited with the Appellate
Tribunal fifty per cent. of the amount of debt due from
him, as claimed by the secured creditors or determined
by the Debts Recovery Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to
not less than twentyfive per cent. of debt referred to in
the second proviso.
xxx xxx xxx”
This Court in the case of vs.
Narayan Chandra Ghosh UCO Bank
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& Ors. , held that keeping in view the language of the Section even
if the amount or debt due had not been determined by the DRT, the
appeal could not be entertained by the DRAT without insisting on
predeposit. The DRAT, at best could, after recording the reasons,
have reduced the amount to 25% but could not have totally waived
the deposit. This Court also held that the right of appeal conferred
under Section 18(1) is subject to the conditions laid down in the
second proviso therein which postulates that no appeal shall be
entertained unless the borrower has deposited 50% of the amount
of debt due from him as claimed by the secured creditors or
determined by the DRT, whichever is less. The third proviso
enables the DRAT, for reasons to be recorded in writing, to reduce
1 (2011) 4 SCC 548
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the amount of deposit to not less than 25%. The following
observations of this Court are relevant:
“ 7 …Thus, there is an absolute bar to the entertainment
of an appeal under Section 18 of the Act unless the
condition precedent, as stipulated, is fulfilled. Unless the
borrower makes, with the Appellate Tribunal, a pre
deposit of fifty per cent of the debt due from him or
determined, an appeal under the said provision cannot be
entertained by the Appellate Tribunal. The language of
the said proviso is clear and admits of no ambiguity.”
8. In view of the law laid down by this Court, we are clearly of the
view that the observation made by the High Court was totally
incorrect.
9. We are not in agreement with the submission of Mr. Chaudhri
that the High Court has exercised its discretionary powers under
Article 226 of the Constitution. The order of the High Court does
not show any exercise of such discretionary powers but according
to the High Court on an interpretation of the Section, predeposit
was not required. We are also not impressed with the argument of
Mr. Chaudhri that his client is not a borrower. A guarantor or a
mortgagor, who has mortgaged its property to secure the repayment
of the loan, stands on the same footing as a borrower and if he
wants to file an appeal, he must comply with the terms of Section
18 of the SARFAESI Act.
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10. Furthermore, we may add that the High Court has no powers
akin to powers vested in this Court under Article 142 of the
Constitution. The High Court cannot give directions which are
contrary to law.
11. In view of the above discussion, we set aside both the orders
dated 25.11.2019 and 16.12.2019 of the High Court in so far as
they hold that predeposit is not required and allow the appeals.
We reiterate that we have not gone into the merits of the
contentions raised by the parties which shall be decided by the
DRAT when it entertains the appeal and is called upon to do so. We
extend the time given to the auction purchasers, respondent no.6 to
deposit the balance of the sale amount till 20.03.2020. We also
direct that in case respondent no.1 files an appeal within 30 days of
the pronouncement of this order it shall not be rejected on the
ground of limitation.
12. Pending application(s), if any, stand(s), disposed of.
| …………………………..J. | |
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| (Deepak Gupta) |
| …………………………..J. | |
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| (Aniruddha Bose) |