Allowed

Kenwood Marketing Inc. v. Hdfc Bank Ltdm & Ors.

DRAT1 Dec 2022MISC APPLICATION/26/2022

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal allowed the appellant's application for a refund of the pre-deposit made u/s. 18(1) of the SARFAESI Act. The court held that since the SARFAESI measures fell out upon allowing the appeal, the bank is not entitled to retain the deposit, citing Supreme Court precedents.

What did the court decide?

The pre-deposit amount of ₹ 12,80,520/- together with accrued interest, if any, to be returned to the Appellant upon proper acknowledgement.

Kenwood Marketing Inc. versus Hdfc Bank Ltdm & Ors. — Company and Corporate | DRAT (2022)

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

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M.A. No 26/2022 (Refund of Pre-deposit) In

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(Appeal No. 106/2016- Disposed of)

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Between

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Kenwood Marketing INC. … Appellant/s V/s.

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HDFC Bank Ltd & Ors. …Respondent/s

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Mr. Sandeep Sheregar, along with Mr. Amol Panchal, i/b Ms. Bhagyashree Keni, Advocate for Appellant.

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Mr. Fenil Sangoi, i/b M/s. Intra Legal, Advocate for Respondent No.1.

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-: Order dated: 01/12/2022:-

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This is an application filed by the Appellant seeking a refund of the

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pre-deposit made u/s. 18 (1) of the SARFAESI Act as a pre-condition

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to entertaining the Appeal No. 106 of 2016. Vide order dated

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20.06.2022 this Tribunal allowed the appeal and set aside the SARAFESI measures initiated by the first Respondents Bank against

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the Appellants liberty to initiate the SARFAESI measures afresh.

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The Ld. Counsel appearing for the Appellant submits that Writ

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Petition has been filed before the Hon’ble High Court of Judicature at

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Bombay as No. 9569 of 2022 and is pending consideration, and

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therefore, the amount may be retained till the Writ Petition is disposed

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of.

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The Ld. Counsel appearing for the Appellant/ Applicant has produced a copy of the order of the Hon’ble High Court in I.A. No. 17158 of 2022 in aforesaid Writ Petition dated 07.10.2022 wherein the Respondent Bank had sought a restraint order against the withdrawal of the pre-deposit amount.

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The Hon’ble High Court refused to grant any order on that application and left it open to the Petitioners to raise all points before this Tribunal as and when the withdrawal of the amount is sought.

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The Respondent has filed a reply in which it is contended that the Writ Petition is under consideration and that the amount may not be returned. The position of law is no longer res integra. The Hon’ble Supreme Court has in Axis Bank V/s SBS Organics Pvt Ltd & Anr (2016) 12SCC 18 held that the creditor bank is not entitled to have a lien over the pre-deposited made u/s. 18 of the SARFAESI Act. Since the SARFAESI measures had fallen out in view of the allowing of the appeal in favour of the Appellant. The Respondent Bank would have to proceed afresh invoking the provision of the SARFAESI Act or

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wait till the orders are passed in the Wirt Petition pending before the Hon’ble High Court.

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There is an original application pending consideration before the D.R.T. but no orders of attachment have yet been obtained by the Respondent Bank. The finding in Axis Bank (supra) has been reiterated by the Hon’ble Apex Court in Kumar Aluminum V/s Asset Reconstruction Company India Ltd & Anr (2016) 9 SCC 361. Under the circumstances, I find that the application will have to be allowed and I do so. The amount in deposit ₹ 12,80,520/- together with the accrued interest if any, shall be returned to the Appellant on the proper acknowledgement by the Registry.

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Sd/Chairperson

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rm-9

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Kenwood Marketing Inc. v. Hdfc Bank Ltdm & Ors.

Case brief

What is this about?

What did the court decide?

Kenwood Marketing Inc. v. Hdfc Bank Ltdm & Ors.

Case brief

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