Disposed

Kailash D. Pawar v. State Bank of India

DRAT26 Jul 2023IA/28/2023

Case brief

AI extract

What is this about?

Appeal under the RDB Act where the appellant sought to reduce the 50% pre-deposit to 25% on grounds of financial strain due to the pandemic. The Tribunal found no substantial evidence of inability to pay and rejected the request to reduce the deposit. The appellant was directed to deposit 50% of the decretal amount in two instalments.

What did the court decide?

Appellant directed to deposit ₹7 Crores as pre-deposit in two equal instalments of ₹3.5 Crores each with banks; appeal admitted only upon payment.

Kailash D. Pawar versus State Bank of India — Banking and Recovery | DRAT (2023)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr. Justice Ashok Menon, Chairperson I.A. No. 28/2023 (WoD)

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In Appeal on Diary No. 1214/2022

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Between

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Kailash D. Pawar … Appellant/s

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V/s.

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State Bank of India & Ors. …Respondent/s

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Ms. Aarti Nimbalkar and Mr. Kumar Abhishek & Mr. Rajesh Nagori, Advocate for Appellant.

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Mr. Sachin Koli, Advocate for Respondents.

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The Appellant is in Appeal impugning the dismissal of the Misc. Application (M.A.) No. 31/2022 in Original Application(O.A.) No. 58/2018 on the files of the Debts Recovery Tribunal-III, Mumbai (D.R.T.) by the Presiding Officer vide order dated 14.10.2022. The M.A. was filed for setting aside ex-parte order against the Appellant who was the 4^th defendant in O.A. filed for recovery of ₹11,44,55,778.29/- from the defendants. None of the defendants had appeared to contest, as a result of which, the ex-parte decree was passed. Subsequently, the Appellant approached the D.R.T. with M.A. No. 31/2022 stating that he is neither the guarantor nor a mortgagor and that he has been defrauded by his brother who had allegedly signed that guarantee deed as also the mortgaged deed misusing the power attorney executing by the Appellant in his favour. It was submitted the Appellant was not served with any

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notice or summons, and did not know about the proceedings until the property belonging to him was proceeded against.

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The Ld. Presiding Officer after considering the rival contentions came to the conclusion that the Appellant does not have any valid reason for getting the ex-parte decree set aside, and hence, dismissed the application vide the impugned order. Aggrieved by the dismissal, the Appellant is in appeal. 3. The Appellant has to compliance the mandatory provision of section 21 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act). The Applicant has therefore filed this application for the indulgence of this Tribunal to keep the pre-deposit at a minimum of 25% of the decretal amount. 4. In the reply filed by the 1^st Respondent Bank it is contended that the allegation that the Appellant was never served with any summons is not true. The Appellant was served with summons by registered post and the guarantee deed was also executed by him personally. Subsequent to that, the mortgaged deed mortgaging his property was executed by his valid power of attorney holder who is none other than his own brother. The Appellant does not have any valid case to get the ex-parte decree to set aside, and rightly, the Ld. Presiding Officer rejected his application. The Ld. Counsel appearing for Respondent would, therefore, submit that the Appellant has no prima facie case and he has no financial strain also so as to get the mandatory pre-deposit amount reduced to a minimum of 25%.

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After hearing the rival contentions of the parties, I find that the Appellant has not pleaded any financial strain except for the fact that the Covid-19 pandemic had affected his financial position. There are

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no attending documents to prove the income of the Appellant. As of date, inclusive of the interest which has accrued, the amount due from the Appellant is ₹19,04,29,328.88/-. Since the amount has already been determined, there is no conflict regarding the threshold amount that has been taken for the calculation of the pre-deposit.

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The Appellant has not made any substantial case to entertain the Appeal and therefore, I am of the opinion that the Appellant is not entitled to get the amount reduced to a minimum of 25%. The Appellant is therefore directed to deposit the sum of ₹7 Crores as pre-deposit for entertaining the Appeal. The said amount is deposited in two equal instalments of ₹3.5 Crore each. The 1^st instalment ₹ 3.5 Crore shall be paid within four weeks, i.e. on or before 23.08.2023 and the 2^nd instalment ₹ 3.5 Crore shall be paid within four weeks therefrom, i.e. on or before 20.09.2023.

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The amount shall be deposited as a Demand Draft with the Registrar of this Tribunal. As and when the said amounts are deposited, they shall be invested in term deposits in the name of Registrar, DRAT, Mumbai, 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 Respondents are at liberty to file a reply in the Appeal with an advance copy to the other side.

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Post on 24.08.2023 for reporting compliance regarding the payment of the 1^st instalment.

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Sd/Chairperson

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psa-04

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Kailash D. Pawar v. State Bank of India

Case brief

What is this about?

What did the court decide?

Kailash D. Pawar v. State Bank of India

Case brief

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