Disposed

Nitin C Thakkar v. State Bank of India

DRAT10 Oct 2023IA/546/2023

Case brief

AI extract

What is this about?

The Tribunal refused to waive mandatory pre-deposit under Sec. 21 of the RDDB & FI Act for appeals challenging the dismissal of delayed review applications and condonation of delay petitions, emphasizing that the substantive dispute involves a determination of debt.

What did the court decide?

The appellant was directed to deposit a sum of ₹4 crores as pre-deposit within four weeks; failing this, the appeal would be dismissed.

Nitin C Thakkar 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

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I.A. No. 545/2023(WoD)

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Appeal on Diary No. 1282/2023

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Between

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Nitin C Thakkar … Appellant/s V/s. State Bank of India …Respondent/s

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And

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I.A. No. 546/2023(WoD)

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Appeal on Diary No. 1281/2023

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Between

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Nitin C Thakkar … Appellant/s V/s.

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State Bank of India …Respondent/s

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Mr. Rajesh Nagory, i/b M/s. V. Deshpande & Co., Advocate for Appellant.

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Mr Dileep S. Paranjpe, Advocate for Respondent Bank.

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-: Order dated: 10/10/2023:-

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These appeals arise from a common order passed by the Debts Recovery Tribunal-I, Ahmedabad (D.R.T.) dated 30.05.2023 dismissing the applications for condoning delay filed as Misc. Application (M.A.) No. 3 of 2010 (CoD) and the Review Application filed as Misc. Application (M.A.) No. 46 of 2012.

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The facts can be encapsulated thus: The Respondent State Bank of India (SBI) had filed an original summary suit No. 569 of 1988 on the files of the City Civil Court, Ahmedabad which was transferred after the constitution of the D.R.T. and refiled as Transfer Application (T.A.) No. 250 of 1995. The Appellant was the original third Defendant. He appeared in the T.A. but did not file any written statement. The application was allowed on 18.05.2007 and a Recovery Certificate was issued to recover ₹8,87,64,356/- together with simple interest at the rate of 6% per annum with effect from 28.10.1988 from the Defendants therein. The Appellant did not challenge the judgment and order and ultimately filed the Review Application together with an application to condone a delay of 931 days and an application under 26(2) of the Recovery of Debts Due to Banks & Financial Institutions Act (‘RDDB & FI Act’, for short) for withdrawing the Recovery Certificate issued on the basis of the judgment and order dated 18.05.2007.

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After considering the applications, vide a common order dated 30.05.2023, the D.R.T. dismissed both applications. The Appellant is aggrieved and hence, in appeal. 4. The Appellant has filed the abovementioned I.A. Nos. 545 of 2023 & 546 of 2023 for waiver of mandatory pre-deposit contemplated under Sec. 21 of the RDDB & FI Act. 5. The Ld. Counsel appearing for the Appellant Mr Rajesh Nagory submits that the appeal is filed challenging the dismissal of the applications for condonation of delay and correction of Recovery Certificate and does not challenge the determination of the amount

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and hence, there is no necessity to make pre-deposit as contemplated under Sec. 21.

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The Ld. Counsel has relied upon a decision of the Hon’ble High Court of Allahabad in Jai Gopal Kansal & Ors. vs. Indian Bank & Ors. MANU/UP/1105/2019 , to argue for the proposition that rejection of an application to set aside ex-parte under Order IX Rule 13 is not a decree but an order which is appealable and therefore, no pre-deposit as contemplated under proviso to Sec.21 is required to be deposited for entertaining the appeal.

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The Ld. Counsel appearing for the Respondent Mr Dileep S. Paranjpe has vehemently opposed the applications by stating that the Appellant has challenged the dismissal of the review application to review the order made by the D.R.T. under the provisions of Sec. 19 of the RDDB & FI Act necessarily it is an appeal preferred by a person from whom the amount of debt is due to the bank and hence, the Appellant is liable to deposit 50% of the amount of debt so due from him as determined by the D.R.T.

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The Ld. Counsel appearing for the Respondent also submits that an application for condonation of delay in filing of the review application is not maintainable in view of the settled position reported in Standard Chartered Bank vs MSTC Ltd. 2020 (13) SCC 618 wherein it was held that review petitions are to be filed within the time stipulated in Rule 5-A of the D.R.T. (Procedure) Rules and cannot be condoned by the D.R.T. under Sec. 5 of the Limitation Act.

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After hearing the rival submissions made by the parties and perusal of the records, I do find that an application for condoning the

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delay in filing a review application is not possible. The Applicant has used the nomenclature of the application as one to recall the Recovery Certificate for there being a mistake in the certificate under Sec. 26(2) of the RDDB & FI Act. But essentially it is an application for review of the order filed with a delay of more than 1000 days.

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It is not an application for setting aside ex-parte that was rejected by the D.R.T. Hence, the decision of the High Court of Allahabad in Jai Gopal Kansal (supra) will not come to the aid of the Appellant. Essentially, the application for review of decree determining the amount filed along with an application for condonation of delay. There is a determination of the debt by the D.R.T. The Appellant cannot, therefore, seek an exemption from the payment of the mandatory pre-deposit.

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The Appellant is, therefore, directed to deposit a sum of ₹4 crores as pre-deposit under Sec. 21 of the RDDB & FI Act. I do not find any reason for reducing the amount as there are no grounds to do so.

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The said amount of pre-deposit shall be made within the period of four weeks i.e. on or before 07.11.2023, failing which the appeal shall stand dismissed without any further reference to this Tribunal. 13. 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.As. are 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 08.11.2023 for reporting compliance regarding payment.

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Sd/Chairperson

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mks-01 & 02.

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Nitin C Thakkar v. State Bank of India

Case brief

What is this about?

What did the court decide?

Nitin C Thakkar v. State Bank of India

Case brief

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