Bombay High Court
Mahatma Gandhi Vidyamandir vs Religare Finvest Limited on 22 January, 2025
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-OS:1102-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT
DASHARATH
PANDIT
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by BHARAT
DASHARATH
PANDIT
WRIT PETITION (L) NO. 189 OF 2025
Date: 2025.01.24
14:23:41 +0530
Mahatma Gandhi Vidya Mandir, )
a Trust registered under the Bombay )
Public Trusts Act, 1950 having )
registered Office at KBH Dental Building, )
Mumbai Agra Road, Panchavati, )
Nashik - 422 003 ) ..... Petitioner.
V/s
1] Religare Finvest Limited, a company )
incorporated under the Companies Act, )
1956 having Branch Office at Lucky )
Corner, Office No.406, 407, 4th floor, )
Chakala, Andheri - Kula Road, Andheri )
(East), Mumbai -400 099 through its )
Authorised Officer )
)
2) Pushpa Veyankatrao Hiray )
)
3) Smita Prashant Hiray )
)
4) Apoorva Prashant Hiray )
)
5) Prashant Veykantrao Hiray )
all having address at KBH Dental Building, )
Mumbai Agra Road, Panchavati, )
Nashik - 422 003 ) ..... Respondents.
----
Mr. Rohan Cama with Mr. Siddharth Samantaray & Mr. T. N. Tripathi i/b
T.N. Tripathi & Co., Advocates for the petitioner.
Mr. Archit Virmani (Through VC) with Mr. Atul Gupta, Advocates for
respondent no.1.
-----
CORAM : A.S. CHANDURKAR &
M. M. SATHAYE, JJ.
DATE : 22nd JANUARY, 2025
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ORAL JUDGMENT: (Per A.S. Chandurkar, J.)
1] Rule. Rule made returnable forthwith and heard learned counsel for the parties.
2] The challenge raised is to the order dated 17/12/2024 passed by the Debts Recovery Appellate Tribunal - DRAT on the application for waiver moved by the petitioner under Section 18(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2022 (for short, Act of 2002). The principal contention raised by the learned counsel for the petitioner is that while issuing notice under Section 13(2) of the Act of 2022 on 15/06/2022, it was stated therein that the amount outstanding was Rs 13,40,24,954.78. After this notice was issued, the petitioner made payment of Rs 1 crore on 30/11/2022, further amount of Rs 1 crore on 20/08/2024 and amounts of Rs 50 lakhs each on 16/09/2024 and 30/09/2024 respectively. As a result, an amount of Rs 3 crores was paid after issuance of the notice under Section 13(2) of the Act of 2002. It was submitted that the learned Chairperson failed to take into consideration the deposits made post issuance of the Section 13(2) notice and considered the figure of Rs 13,40,24,954.78 as the amount of "debt due". On that basis, the petitioner was directed to deposit a sum of Rs 6 crores under Section 18(2) of the Act of 2002 as a condition precedent for entertaining the 2/6 903 wpl-189-25.doc bdp-sps ::: Uploaded on - 24/01/2025 ::: Downloaded on - 25/01/2025 09:33:39 ::: appeal which was about 44.77% of the debt due. To substantiate his contentions, the learned counsel for the petitioner placed reliance on the decisions in Sidha Neelkanth Paper Industries Private Limited Vs. Prudent ARC Limited and Others, 2023 OnLine SC 12 and Kotak Mahindra Bank Private Limited vs. Ambuja A. Kasliwal and Others , (2021) 3 SCC 549. It was also urged that discretion to the extent of 25% deposit ought to have been exercised in the light of the fact that an Arbitral Award had been passed in the proceedings between the parties on 09/08/2019. Only on the ground that there was failure on the part of the petitioner to settle the dues, the ad-interim relief that was granted earlier on 20/08/2024 came to be vacated. It was thus submitted that the order passed by the DRAT called for interference.
3] The learned counsel appearing for respondent no.1 opposed the aforesaid submissions. According to him, the conduct of the petitioner indicated that it had no intention whatsoever of repaying the amount of dues and hence the discretion exercised by the DRAT while passing the order of pre-deposit did not call for any interference. He further submitted that as the notice under Section 13(2) had been issued on 15/06/2022, the amount of interest accrued till date was also required to be taken into consideration. To support his submissions, the learned counsel placed reliance on the decision in Writ Petition No.797 of 2024 3/6 903 wpl-189-25.doc bdp-sps ::: Uploaded on - 24/01/2025 ::: Downloaded on - 25/01/2025 09:33:39 ::: (Sony Mony Developers Pvt. Ltd & Ors. vs. Asset Care & Reconstruction Enterprises & Anr) decided on 29/01/2024. The writ petition was therefore liable to be dismissed.
4] We have heard the learned counsel appearing for the parties and we have perused the documents on record. The issue pertains to determining the amount of pre-deposit as condition for entertaining the appeal preferred by the petitioner. Under Section 18(1) of the Act of 2022, subject to a minimum deposit of 25% of the debt due, a discretion is vested with the Presiding Officer to consider issuing a direction to deposit an amount between 50% to 25% of the debt due. It is not in dispute that the amount of Rs 13,40,24,954.78 has been mentioned in the notice issued under Section 13(2) of the Act of 2002 dated 15/06/2022. It is further not in dispute that after issuance of the said notice, an amount of Rs 3 crores has been paid on various occasions particularised above. The learned Chairperson in an order passed on 30/05/2024 in Interim Application No.367 of 2024(WoD) in Appeal on Diary No.1117/2024 (Merchant Real Estate Pvt. Ltd. & Ors. vs. Aditya Birla Finance Ltd. ) has taken this aspect into consideration and has deducted the amounts paid after issuance of the notice under Section 13(2) of the Act of 2002 while determining the amount of pre-deposit. Having considered the ratio of the decision in Sidha Neelkanth Paper Industries Private Limited (supra), we are of the view that the payment made after issuance of the notice 4/6 903 wpl-189-25.doc bdp-sps ::: Uploaded on - 24/01/2025 ::: Downloaded on - 25/01/2025 09:33:39 ::: under Section 13(2) of the Act of 2002 ought to be deducted while determining the amount of pre-deposit. The same not having been done in this case and warrants interference in that regard. 5] As regards determination of the amount that is required to be taken into consideration while stipulating the amount of pre-deposit, it may be noted that in paragraph 3 of the impugned order, the amount as mentioned in the notice given under Section 13(2) of the Act of 2002 has been considered. This finding not having been challenged by the respondent no.1, we are not inclined to go into the aspect as to whether the same is correct in this writ petition filed by the borrower.
Insofar as exercise of discretion of directing the petitioner to deposit 44.77% of the amount of the debt due, we do not find any reason to interfere with the exercise of such discretion. The learned Chairperson has given reasons while directing the deposit of an amount equivalent to 44.77% of the amount of debt due. To that extent, we are not inclined to interfere with the impugned order.
6] In the light of the aforesaid discussion, the only modification called for in the impugned order is to treat the amount of debt due as Rs 10,40,24,954.78 after deducting an amount of Rs 3 crores that has already been paid by the petitioner. 44.77% of the aforesaid amount 5/6 903 wpl-189-25.doc bdp-sps ::: Uploaded on - 24/01/2025 ::: Downloaded on - 25/01/2025 09:33:39 ::: comes to Rs 4,65,71,971/-. Since the amount of Rs 1 crore has been deposited in terms of order dated 17/12/2024 for maintaining the appeal, the petitioner would be required to deposit the balance amount of Rs 3,65,71,971/- within a period of four weeks from today. In case, the aforesaid amount is not deposited within a period of four weeks from today, the appeal preferred by the petitioner would be liable to be dismissed for non-compliance of this direction of pre-deposit. In case the aforesaid amount is deposited by the end of the period of four weeks, the interim order dated 17/12/2024 would continue for further period of ten days.
7] It is clarified that all issues on merits are kept open for being considered by DRAT in accordance with law. Any observations made in this judgment are only for the purposes of considering challenge to the impugned order.
8] Rule is disposed of in the aforesaid terms with no order as to costs.
[ M. M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ] 6/6 903 wpl-189-25.doc bdp-sps ::: Uploaded on - 24/01/2025 ::: Downloaded on - 25/01/2025 09:33:39 :::