Dwarika Prasad v. Union Bank of India and 3 Ors.
Case brief
What is this about?
In an execution appeal, the court held that the appellant must deposit 25% of the dues as a mandatory pre-deposit under the SARFAESI Act, noting that auction proceeds cannot be considered for this purpose per recent Apex Court precedent.
What the court decided
A compact analysis
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Appeal Dy. No. 288/2021 Date: 04.07.2023
Dwarika Prasad Vs. Union Bank of India & Ors.
Present: Shri Arvind Singh, Advocate holding brief of Shri V. K. Shukla, counsel for the appellant, Shri S. D. Sahai, counsel for the respondent-Bank, Shri Bablu, counsel for the respondents-Auction Purchasers
Learned counsel for the respondent-Bank submits that the reply to the waiver and delay condonation applications is ready and shall be filed during course of the day after serving copy of the same upon the counsel for the appellant.
In the present case, the appellant has not deposited any amount towards minimum deposit of 25% of the amount due, which is mandatory in nature in view of the third proviso of section 18 of the SARFAESI Act, as the amount realized by the Bank from auction sale of the property of the appellant cannot be taken into consideration towards pre-deposit in view of the judgment passed by the Hon’ble Apex Court in Civil Appeal No. 8969 of 2022- M/s Sidha Neelkanth Paper Industries Private Limited & Another Vs. Prudent ARC Limited & Others decided on 05.01.2023 .
In the waiver application, the learned counsel for the appellant has stated that the property has been auctioned by the respondent-bank, but the same cannot be considered towards pre-deposit in view of the judgment as referred to above. Therefore, the appellant is directed to deposit 25% of the amount due, which is mandatory in nature, by the next date fixed for entertaining the appeal. If the appellant does not deposit the said amount prior to the next date fixed, the appeal shall stand dismissed as not entertainable for want of mandatory pre-deposit without further reference to this court. If the said amount is deposited by the appellant within the stipulated period, list this case on 04.10.2023 for hearing on waiver of the rest 25% of the amount due.
Issues for consideration
2 issues framed by the court
Whether the appellant is liable to make a mandatory pre-deposit of 25% of the amount due under the third proviso of section 18 of the SARFAESI Act despite the auction of the security property.
What is the consequence of failure to make the mandatory pre-deposit for the purpose of entertaining the appeal.
Parties & counsel
- appellant
Dwarika Prasad
- respondent
Union Bank of India
Coram
R. D. Khare
Case details
As recorded by the court registry
- Court
- DRAT
- Decided on
- · July
- CNR
- 091090002882021
- Topic
- Banking and Recovery
All orders in this case
9 orders share this CNR
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