TaxTMI 
TaxTMI 
2015 (3) TMI 194
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.... July, 1999 and the said facility was enhanced and renewed in the month of June, 2000. On September 30, 2001, the account of the petitioner was declared Non Performing Asset (NPA in short) by the respondent No. 2-bank. The bank filed an Original Application i.e. OA No. 145/02 before the Debt Recovery Tribunal (DRT), which issued show cause notice to the petitioner. The respondent No. 2-bank also issued a show cause notice dated January 31, 2003 to the petitioner under Section 13(2) of the SARFAESI Act. It may be noted that three associate companies/firms of the petitioner, which had also taken credit facilities had also been declared to be Non-Performing Assets, were also issued notices under Section 13 (2) of the SARFAESI Act. The bank assigned the debts in all accounts including with respect to the petitioner to the respondent No. 1. The respondent No. 1 was allowed to be substituted before the proceedings before DRT. The applications under Section 14 of the Act (numbered as SA 525/2012 to SA 528/2012) were filed by the respondent No. 1 before the ACMM, who appointed Receiver in the accounts of the petitioner/associate companies/firms having some common properties. The Receiver s....
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....ithout the respondent No. 1 taking recourse to Section 13(4) or Section 14 of the SARFAESI Act pursuant to the notice under Section 13(2). It was also the case of the respondent No. 1 that it did not file any order of learned ACMM or any document to show that measures under Section 13(4) of SARFAESI Act were taken by the respondent No. 1 against the petitioner which is a condition precedent for approaching DRT under Section 17 of the SARFAESI Act. Meaningfully read, it was the case of the respondent No. 1 that the SA No. 527/12 filed by the petitioner was premature. The said application of the respondent No. 1 under Order 7 Rule 11 CPC was allowed and thereby the appeal No. 527/2012 was dismissed as no action under Section 13(4) of the SARFAESI Act has been taken by the respondent No. 1. 5. It is pursuant thereto, the petitioner herein has filed an application under Section 18(2) of the SARFAESI Act read with Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act and on the principles akin to Order 47 CPC read with Section 151 CPC before the Appellate Tribunal inter alia praying a direction to the Registrar of the Appellate Tribunal to refund 25% of the ....
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....as not held to be a NPA as per RBI Guidelines. She would seek the dismissal of the writ petition. 8. Having heard the learned counsel for the parties, we note that the order dated December 27, 2012 clearly reveals that the petitioner through his counsel had, keeping in view the fact that all the petitioner and its associate companies/firms, belong to one family and the counsel desired to deposit in total 25% of the total claimed amount; the Appellate Tribunal had passed the order on December 27, 2012. We note that the counsel for the petitioner had pleaded financial hardships as a reason to enable to deposit 50% of the claimed amount and requested the Appellate Tribunal to reduce the pre-deposit from 50% to 25%. A statement/concession made/given by the counsel for the petitioner to predeposit 25% of the claimed amount as one consolidated amount with regard to all the appeals/accounts, which has been accepted by the Appellate Tribunal, the petitioner cannot now resile out of the statement/concession. In other words, there was no segregation of the amount claimed against the four accounts, the details of which are as under: S.No. Name of the Account Date of N.P.A. Amou....
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....26 of the Constitution would not like to interfere with the impugned order. 10. Insofar as the judgment of the Supreme Court in Mardia Chemicals Ltd.'s case (supra) is concerned, the Supreme Court has held, that the amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is sold. The Court has held that the stipulation that the borrower has to deposit 75% of the amount claimed by the secured creditor before his appeal can be entertained in Section 17(2) of the Act (pre-amended) was unreasonable, arbitrary and violative of Article 14 of the Constitution. The said Sub-Section has been replaced by way of an amendment, empowering the DRT to consider whether, any measure referred to in Sub-Section 4 of Section 13 by the secured creditor are in accordance with the provisions of the Act and the Rules made thereunder. Be that as it may, we have already justified the impugned order in the peculiar facts of the present case. In view of our above conclusio....