The court refrained from deciding on the waiver application due to the appellant's failure to deposit the mandatory 25% predeposit. Proceeds from auction cannot offset this requirement per Apex Court precedent.
Appellant directed to deposit 25% of the amount due; case listed for hearing on waiver of the rest of the 25% upon deposit.
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Appeal Dy. No. 148/2021 Date: 27.03.2023
M/s Harshit Power & Ispat Pvt. Ltd. Vs. State Bank of India & Anr.
Present: Shri Manoj Kumar Srivastava, counsel for the appellant, Shri Jitendra Sarin, counsel for the respondent-Bank, None for the respondent No. 2,
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 20.07.2023 for hearing on waiver of the rest 25% of the amount due.
Justice R. D. Khare Chairperson
Anupam
1 issue framed by the court
Whether the auction sale proceeds can be considered towards the mandatory 25% predeposit requirement under section 18 of the SARFAESI Act for filing a waiver application.
Colour shows how this judgement treated each authority
Civil Appeal No. 8969 of 2022- M/s Sidha Neelkanth Paper Industries Private Limited & Another Vs. Prudent ARC Limited & OthersReferred¶4
M/s Harshit Power & Ispat Pvt. Ltd.
State Bank of India
R. D. Khare
As recorded by the court registry
6 orders share this CNR
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R. D. Khare
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