Calcutta High Court (Appellete Side)
M/S. Archana Nirman Pvt. Ltd. & Anr vs Iifl Home Finance Limited & Ors on 30 April, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
30.04.2024
31
PG/Sayandeep
Ct. No.1
M.A.T. 230 of 2024
With
IA No. CAN 1 of 2024
M/s. Archana Nirman Pvt. Ltd. & Anr.
Versus
IIFL Home Finance Limited & Ors.
Mr. Amar Nath Sen
Mr. Malay Dhar
Mr. Amit Bikram Mahata
Ms. Subhangi Panigrahi .....for the appellants.
Mr. Soumitra Ganguly
Mr. Kousik Biswas
Mr. Soumo Mukherjee
Ms. Sweta Misra
Mr. Debojyoti De .....for the respondents 3,4,5 & 6
Ms. Soni Ojha ......for the respondents 1 & 2
1. We have heard the learned advocates for a considerable length of time. The only legal issue, which we consider in this appeal is whether the appellants before us are required to effect pre-deposit in terms of the second proviso to section 18(1) of the SARFAESI Act (for brevity the 'Act') in order to maintain an appeal against an order passed by the Debts Recovery Tribunal before the Debts Recovery Appellate Tribunal.
2. The contention of the appellants/writ petitioners is that the order, which the appellants proposed to challenge before the Debts Recovery Appellate Tribunal is an order on interlocutory application being aggrieved by addition of certain parties to the original application. 2 Therefore, the question would be in such circumstances, are the appellants, who are admittedly borrowers, required to comply with the pre-condition under second proviso to section 18(1) of the Act, which states that "Provided further 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."
3. In our prima facie view, the said second proviso would apply to a borrower and if a person is not a borrower, the condition may not apply and this is also evident from Rule 13 of the Security Interest (Enforcement) Rules, 2002 to any other application by any person.
4. In the instant case, the respondent-bank has issued notice under section 13(2) of the Act, which has culminated into a notice issued under section 13(4) as against which an appeal has been filed under section 17 before the Debts Recovery Tribunal and pursuant to which action was initiated under the Act and the secured asset has also been sold.
5. In our prima facie view, the amount due, as claimed by the secured creditor stood crystalised upon issuance of the notice under section 13(2). Therefore, can the appellants be heard to say that no pre-deposit is required to be effected by the appellants by preferring 3 an appeal solely on the ground that it is against an order passed by the Debts Recovery Appellate Tribunal impleading certain parties.
6. The learned advocates for the either side seek to place certain decisions for our consideration, which shall be placed in the form of complilations after exchanging among themselves their respective compliation.
7. List the matter on 14th May, 2024.
(T.S SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)