Disposed

Mrs. Rashmi Rajesh Rajguru v. Dombivli Nagari Sahakari Bank Limited

DRAT24 May 2023IA/6/2023

Case brief

AI extract

What is this about?

The Tribunal allowed an application under Section 18(1) of the SARFAESI Act to fix the pre-deposit for an appeal at Rs. 30 lakhs, considering the appellants' financial strain and deducting the amount already deposited, with the balance to be paid within three weeks.

What did the court decide?

Pre-deposit fixed at Rs. 30 lakhs; balance deposit of Rs. 10,94,420/- to be made within three weeks; post reported for compliance.

Mrs. Rashmi Rajesh Rajguru versus Dombivli Nagari… — Insolvency and Bankruptcy | 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. 06/2023 (WoD) In Appeal on Diary No. 1355/2022

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Between

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Rashmi Rajesh Rajguru & Anr. … Appellant/s V/s.

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Domivali Nagari Sahakari Bank Ltd. & Anr. …Respondent/s Ms. Somya, i/b M/s. T.N. Tripathi & Co., Advocate for Appellant. An Advocate for the Respondents is present.

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-: Order dated: 24/05/2023:-

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This is an application filed u/s 18 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”, for short) challenging the dismissal of the Securitization Application (S.A.) No. 440/2016 on the files of Debts Recovery Tribunal-III, Mumbai(D.R.T.) vide impugned order dated 29.11.2022.

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The S.A. was filed challenging the Sarfaesi measures initiated by the 1^st Respondent Bank on various grounds which include the contentions that the NPA was not classified properly and is not in accordance with RBI guidelines. It is further contended that notice u/s 13 (2) of the SARFAESI Act is defective for the reason that the bifurcation of the amount as required u/s 13 (3) has not been mentioned. It is also contended that the name of the Authorized Officer and his designation is not mentioned in the demand notice.

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That apart, the Appellants also find fault with the application filed u/s 14 of the SARFAESI Act before the District Magistrate since the nine-pointer declaration has not been made along with the application. Over and above, it is also contended that the mortgaged is not properly created for the reason that the mortgage deed is not a registered one though compulsorily registrable. Non-registration of the deed would invalidate the document and hence, the mortgaged is not enforceable, and hence, there are no secured assets for Respondent Bank to proceed against under the provision of the SARFAESI Act.

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The 1^st Respondent has filed a reply contradicting all the contentions raised and it is stated that the after considering all the objections raised by the Appellants the S.A. was disposed of by the Ld. Presiding Officer by a well-reasoned order and that all contentions were found to be untenable and prima facie the Appellants has no case.

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In this application for waiver, the Appellants would contend that they are under financial strain because the only factory which was the source of their income has been taken over by the 1^st Respondent and there is no income derived. The Appellants therefore, seek the indulgence of this Tribunal to invoke the provision of the 3^rd proviso to section 18 (1) of the SARFAESI Act to keep the mandatory pre-deposit to the minimum 25% of the amount due.

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In the reply filed by the Respondent Bank, it is stated that as of the date, an amount of ₹ 83,50,532/- is due from the Appellants.

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This amount is arrived after accounting for the payment of ₹ 23, 10,871/- which has been made towards the debts by the Appellants consequence of the receipt of the notice u/s 13 (2).

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The Ld. Counsel appearing for the Appellants submits that the amount mentioned in the demand notice alone may be considered for the purpose of calculating the pre-deposit and the demand notice claims a sum of ₹ 61, 18,352/- as of 30.06.2016.

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The debts due as defined u/s 2 (g) of the RDB Act, 1993 state that it is inclusive of interest. Under the circumstances, the Appellants will have to pay the pre-deposit on the amount which is inclusive interest and not the amount mentioned in the demand notice alone.

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The Appellants have raised certain contentions which have been negative by the Ld. Presiding Officer but the contentions have to be re-examined by this Tribunal which this Tribunal is not intending to delve into at this point in time.

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Considering the financial situation of the Appellants and the entire facts and circumstances of this case, this Tribunal concludes that the Appellants will have to deposit a sum of ₹ 30 lakhs as predeposit for entertaining the Appeal. Out of that, the Appellants have already deposited a sum of ₹ 19,05,580/- together with the accrued interest which was withdrawn from another Appeal that was earlier filed by the Appellants. The balance amount shall be deposited by the Appellants within the period three weeks from today, i.e. on or before 14.06.2023. Failing which, the Appeal shall stand dismissed without any further reference to this Tribunal.

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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, with any nationalised 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 is at liberty to file a reply in the Appeal with an advance copy to the other side.

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Post on 15.06.2023 for reporting compliance regarding the payment.

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Sd/Chairperson

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psa-04

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Mrs. Rashmi Rajesh Rajguru v. Dombivli Nagari Sahakari Bank Limited

Case brief

What is this about?

What did the court decide?

Mrs. Rashmi Rajesh Rajguru v. Dombivli Nagari Sahakari Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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