Disposed

Bhupendra Reshamwala and Ors. v. Dcb Bank Limited

DRAT3 Apr 2023IA/185/2023

Case brief

AI extract

What is this about?

This Court disposed of an interim application seeking waiver of pre-deposit under the SARFAESI Act. While refusing a reduction to 25%, the Tribunal ordered a 15-lakh deposit and restrained the attachment of the appellant's residential property pending the next hearing.

What did the court decide?

Directed deposit of 15 lakhs as pre-deposit; possession of residential house to remain undisturbed until next hearing.

Bhupendra Reshamwala and Ors. versus Dcb Bank Limited — Execution and Attachment | DRAT (2023)

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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. 185/2023 (WoD) In Appeal on Diary No. 434/2023

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Between

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Bhupendra Reshamwala & Ors. … Appellant/s V/s. Authorized Officer, …Respondent/s DCB Bank Ltd.

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Mr. Dhrumit Chauhan along with K. Trivedi, Advocate for Appellants.

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Mr. Vinay Deshpande along with Mr. Rupak Sawangikar, i/b M/s. V. Deshpande & Co., Advocate for Respondent.

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Heard the Ld. Counsel for the Appellants and Respondent on I.A. No. 185/2023 which is an application for waiver of pre-deposit filed u/s 18 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act” for short) requesting this Tribunal to invoke the discretionary jurisdiction of this Tribunal under the third proviso to Sec. 18(1) of the Act to reduce the amount of mandatory pre-deposit to 25% of the amount claimed and due from the Appellants.

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The Appellant had filed Securitisation Application (S.A.) No. 63/2022 before the Debts Recovery Tribunal-II, Ahmedabad (D.R.T.) challenging the Sarfaesi measures initiated by the Respondent Bank. The Ld. Presiding Officer refused to grant any interim relief. The Appellants are aggrieved and hence in appeal.

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The grounds on which the S.A. has been filed by the Appellant u/s 17 of the SARFAESI Act is that in the notice issued u/s 13 (2) the sum of ₹ 33,31,868/- was claimed as on 10.08.2021. The amount was due to two different facilities but a common notice is issued without stating that the amount is due on two different loan facilities and therefore, the notice is bad.

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The Appellants had allegedly sent the reply to the demand notice explaining the aforesaid infirmities and the bank also sent the reply to that. The Respondent Bank thereafter moved the Chief Metropolitan Magistrate for order u/s 14 of the SARFAESI Act and obtained the order on 07.07.2022 wherein the Respondent Bank was directed to deposit some amount and the court commissioner appointed was directed to take delivery of the property within the 90 days from the date of the order or within such extended period allowed by the court.

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It is submitted that without getting an extension of the period of 90 days, the order is now sought to be executed by the commissioner which according to the Ld. Counsel appearing for the Appellants is illegal.

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Per contra the Ld. Counsel appearing for the Respondent submits that no two facilities were granted to the Appellant. The earlier loan which was granted was still pending when a top-up loan was sanctioned and granted, and therefore, for all practical purposes it is a common facility and for that reason, a common notice u/s 13 (2) for an outstanding amount as per the loan is permissible and that is what was issued. Hence, there is no infirmity in the demand notice.

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The Ld. Counsel for the Respondent under instruction submits that the order of the Ld. Chief Metropolitan Magistrate was got extended and that notice was issued to take possession of the property. Therefore, there is no infirmity on that count as well.

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The Ld. Counsel for the Appellants submits that the Appellants are under financial strain and the Income Tax Returns have been annexed to the Appeal Memorandum. But on perusal, it seems that no such Returns have been submitted and therefore, apart from the statement made in the application, there is no evidence to support that the Appellants are under financial strain.

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Under the circumstances, I find that the Appellants are not entitled to any indulgence of getting the pre-deposit reduced to a minimum of 25%. However, considering the entire facts and circumstances of this case, this Tribunal directs the Appellants to deposit a sum of ₹ 15 lakhs as pre-deposit. The Ld. Counsel appearing for the Appellants submitted a Demand Draft for ₹ 3 lakhs today in the name of Registrar, D.R.A.T. The same shall be received. The balance of ₹ 12 lakhs shall be paid within four weeks, on or before 01.05.2023. Default in payment shall entail in dismissal of the Appeal without further reference to this Tribunal.

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The possession of the residential house of the Appellant shall not be disturbed till the next date of the hearing.

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The amount shall be deposited in the form of a Demand Draft with the Registrar of this Tribunal.

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As and when the said amounts are deposited, they shall be invested in term deposits in the name of Registrar, DRAT, Mumbai,

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with any nationalized bank, initially for 13 months, and thereafter to be renewed periodically.

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With these observations, the I.A. is disposed of. The Respondent Bank is at liberty to file a reply to the Appeal with an advance copy to the other side.

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Post on 02.05.2023 for reporting regarding compliance.

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Sd/Chairperson

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psa-07

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Bhupendra Reshamwala and Ors. v. Dcb Bank Limited

Case brief

What is this about?

What did the court decide?

Bhupendra Reshamwala and Ors. v. Dcb Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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