Disposed

Trident Impex and Ors. v. Kotak Mahindra Bank Limited

DRAT20 Oct 2022

Case brief

AI extract

What is this about?

In an I.A. regarding waiver of predeposit and restoration of possession in an appeal under the SARFAESI Act, the bench directed that the predeposit waiver application must be considered and replied to before hearing the restoration of possession plea, citing settled law on mandatory compliance.

What did the court decide?

Time granted to the respondent bank to file a reply to the application for waiver of predeposit; restoration of possession pending.

Trident Impex and Ors. versus Kotak Mahindra Bank Limited — 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. 535/2022 (WoD) In Appeal on Diary No.1085/2022

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Between

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M/s. Trident Impex & Ors. … Appellant/s

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V/s.

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Kotak Mahindra Bank Ltd. & Ors. …Respondent/s

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Mr. Mathew Nedumpara along with Ms. Hemali Kurne & Ms. Maria Nedumpara, Advocate for Appellant.

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Mr Raju Uttam Shinde along with Ms Shweta P Kamath (Chief Manager- Legal), Advocate for Respondent.

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-: Order dated: 20/10/2022:-

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

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I.A. No. 535/2022 which is an application for waiver of predeposit filed u/s 18 (1) of the SARFAESI Act.

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The Appellant has also filed another application for restoration of the possession of the Secured Assets which was taken physical possession by the Respondents secured creditor. The interlocutory application was filed as I.A. 1270/2022 by the Appellant before D.R.T.II, Mumbai in S.A. No. 311/2022 to stall the taking over the possession declined by the impugned order dated 12.10.2022 was declined to state that the possession has already been taken on 11.10.2022 and the order of restoring possession was declined.

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The Appellant has in this application at Diary No. 1085/2022

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sought restoration of possession. The learned counsel appearing for the Appellant submits that the possession of the flat which is residential accommodation has to be restored forthwith even before the application of waiver u/s 18 (1) of the SARFAESI Act is considered.

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The learned counsel appearing for the Respondent Bank seeks time to file a reply to that application. The learned counsel for the Appellant submits that the right of residence is a constitutional right and it cannot be denied therefore, even before considering the application for waiver the possession has to be restored.

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It is also submitted that initially the application of S.A. was filed before the D.R.T.-I, Mumbai which was transferred to D.R.T.II, Mumbai as per a Notification pertaining to the jurisdiction Notification dated 04.10.2022. The learned counsel appearing for the Appellant submits that the dispossession was scheduled on 11.10.2022 and that an application was moved before the D.R.T.-II, but it was observed by the learned Presiding Officer that he had not received the papers and therefore, refused to consider an application since the file was still with D.R.T.-I. As a consequence of this delay, the Appellant was dispossessed.

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The counsel for the Appellant submits that because of the mistake of that court nobody should suffer and therefore, the possession has to be restored based on equitable consideration. 8. Any Appeal which is filed before the D.A.R.T. can be entertained only on compliance with the mandatory second proviso to section 18 (1) and the learned counsel appearing for the Respondent Bank seeks time to file a reply stating that he has got the

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notice on this application only in the morning at 9.45 and could not, therefore, prepare a reply detailing the amount that is due from the Appellant to the Bank.

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It is settled law that this Tribunal cannot entertain an Appeal without first complying with the provisions of mandatory predeposit under the second proviso to section 18(1) of the SARFAESI Act.

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Under the circumstances, I cannot now consider the application for restoration of possession without first considering the application for waiver of pre-deposit. The Respondent is granted a week's time to file a reply. On the filing, a reply on the application for waiver of pre-deposit shall be heard.

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Post on 04.11.2022 for reply

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Sd/Chairperson

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psa 06

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Trident Impex and Ors. v. Kotak Mahindra Bank Limited

Case brief

What is this about?

What did the court decide?

Trident Impex and Ors. v. Kotak Mahindra Bank Limited

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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