Partly allowed

Nitin Kalluram Dhandekar v. Encore Asset Reconstruction Company through its Authorised Officer

DRAT24 Nov 2022MISC APPEAL/78/2023

Case brief

AI extract

What is this about?

On an interim application regarding waiver of pre-deposit, the Tribunal declined to reduce the mandatory 25% deposit as no financial strain was pleaded. The court directed a temporary stay on possession sale upon payment of ₹15 lakh.

What did the court decide?

Strict denial of reduction in pre-deposit; temporary stay on taking over of possession granted only upon deposit of Rs. 15,00,000.

Nitin Kalluram Dhandekar versus Encore Asset Reconstruction… — Banking and Recovery | DRAT (2022)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson

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I.A. No. 595/2022 (WoD) In Appeal on Diary No. 1123/2022

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Between

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Nitin Kalluram Dhandekar & Anr. … Appellant/s V/s.

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The Authorized Officer of Encore Asset Reconstruction Company Pvt. Ltd. & Ors

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…Respondent/s

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An Advocate for Appellant is present.

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An Advocate for the Respondent is present.

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-: Order dated: 24/11/2022:-

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The matter is taken up for hearing by way of Praecipe filed by Appellant for seeking urgent relief.

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The Respondent has appeared and submitted that the Vakaltnama is being filed today and seeks time to file a reply on the application for the waiver of pre-deposit.

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The counsel for the Appellant submits that the subject property is a hostel and that in case the possession is taken, the inmates would have to be vacated from the premises, therefore, seeks urgent relief.

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As per the 13 (2) notice issued under the provision of the SARFAESI Act demand and amount of ₹ 43,31,942/-together with interest and it are submitted that the subsequent to the receipt of demand notice the Appellant paid ₹ 21,50,000/- According to the

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learned counsel for the Bank the outstanding amount as ofthe date of the 35,00,000/- after deducting the amount which is already paid.

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The learned counsel for the Appellant submits that the amount would be much less. The order dated 13.10.2022 in I.A. No. 1648/2022 in S.A. No. 135/2022 on the files of D.R.T., Pune which stand challenged in Appeal,the Appellant had requested for a statusquo to be maintained regarding the Sarfaesi measures. The stay requested was declined to be granted and hence, the Appellant is in Appeal. S.A. is filed challenging the entire Sarfaesi measures initiated by the Respondent bank. It is stated that the amount claimed demanded notice u/s 13 (2) is not correct. It is also stated that the proceeding u/s 14 of the SARFAESI Act is faulty and is not according tothe law.

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Hence, the taking over the possession is also challenged. It is submitted that the amount claimed in Sec. 13 (2) demand is not correct.

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The Appellant has expressed their bonafide settling the debt by paying an amount of ₹ 21,00,000/-. The S.A. has not been disposed of. It is pending consideration and therefore, at this stage of deciding the waiver application, we are not concerned with the challenges raised in the S.A. by the Appellant. But it does make a prima-facie case for the sustaining of the S.A. to be considered by the D.R.T.

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However, the Appellant has not pleaded financial strain in capacities to him from the depositing the waiver amount of 50% as required the second proviso of 18 (1) of the SARFAESI Act.

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Under the circumstances, there are no grounds for reducing the amount of 25% by invoking the jurisdiction of this Tribunal the third proviso u/s 18 (1) of the SARFAESI Act.

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The Respondent is yet to file a reply and therefore, the exact amount due as ofthe date of filing the Appeal is yet to be ascertained or determined. Meanwhile, the Appellant is directed to deposit a sum of ₹ 15,00,000/- and on deposit of that amount, there shall be a temporary stay of the taking over possession of the property.

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The waiver application shall be called on 05.12.2022 for further hearing.

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Sd/Chairperson

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psa-06

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Nitin Kalluram Dhandekar v. Encore Asset Reconstruction Company through its Authorised Officer

Case brief

What is this about?

What did the court decide?

Nitin Kalluram Dhandekar v. Encore Asset Reconstruction Company through its Authorised Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

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