Disposed

Harshit Dinesh Mishra v. Aditya Birla Housing Finance Ltd.

DRAT29 Mar 2023MISC APPEAL/25/2024

Case brief

AI extract

What is this about?

The DRAT refused a full waiver of pre-deposit under Section 18(1) of the SARFAESI Act due to lack of evidence of impecuniousness but granted a conditional stay on possession. The appellant was directed to deposit ₹40 lakh with a deferred payment schedule; failure to comply results in dismissal.

What did the court decide?

Conditional interim stay on possession granted subject to deposit of ₹40,00,000/- in instalments; pre-deposit not fully waived.

Harshit Dinesh Mishra versus Aditya Birla Housing Finance Ltd. — 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. 180/2023 (WoD) In Appeal on Diary No. 357/2023

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Between

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Harshit S/o Di n esh Mishra &Ors. … Appellant/s V/s. … Aditya Birla Ho u sing Finance Ltd. &Anr. Respondent/s Mr. APJP Dube y Advocate for the Appellants. Mr Vishal Mahes h wari, along with Ms. Kamini Pan s are, i/b M/s. V. M. Legal, Advoc a te for Respondents.

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-: Order dated: 29/03/2023:-

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The Appellants are before this Tribunal seeki n g a waiver of mandatory pre-d e posit u/s. 18 (1) of the SARFAES I Act by invoking the discretionary powers of this Tribunal under th e third proviso to u/s. 18 (1) and t o reduce the amount to a minim u m of 25 %. The Appellants imp u gn the order dated 13.01.202 3 of the Debts Recovery Tribu n al, Nagpur in I.A. No. 2373/2023 in S.A. No. 22/2023

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The Ld. P.O. d eclined to grant any stay or prot e ction from being dispossessed of t heir residential house. As of date the amount due from the Appell a nt according to the Respondent i s ₹ 1,18,17,601/-. The Appellants h ave challenged the Sarfaesi measu r es u/s. 17 (1) of the SARFAESI Act on various grounds. Am o ng these, it is

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contended that the 13 (2) notice issued on 09.12.2021 does not give a break up as is required under Sub Sec 3 to Sec 13. The details and description of the authorised officer who has issued the notice is also lacking and therefore the demand notice is prima facie defective, and hence, all subsequent measures under SARFAESI Act should also be stalled.

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The Respondent has vehemently opposed the application and states that the possession of the property is being taken today and that the Appellants are not entitled to any relief either of waiver or any stay of the Sarfaesi measures.

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On an anxious consideration of the argument rival contentions in the argument raised by the Ld. Counsel appearing for both sides,

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I find that the Appellant has not made a prima facie case. There is also no documentary evidence regarding the impecunious condition of the Appellants and therefore the Appellants are definitely not entitled to get the amount reduced to a minimum of 25 % but considering the facts and submission made across the bar by the Ld. Counsel appearing for the Appellants that the only earning member had passed away during the Covid period that the income of the factory has come down, I direct the Appellant to deposit a sum of ₹ 40,00,000/- by way of pre-deposit. The Ld. Counsel appearing for the Appellant is producing a Demand Draft for ₹ 15,00,000/- today. The balance amount shall be paid in two equal instalments. The first instalments shall be payable within three weeks on or before 19.04.2023 and the second instalment shall be payable within three weeks therefrom, on or before 10.05.2023.

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In view of the fact that the property is a residential accommodation and that the Appellants are in the fear of being dispossessed of their residence, there shall be an interim stay precluding the Respondent Bank from taking possession of the property. Failing to pay the instalments shall entail in dismissal of the appeal.

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In default of payment, 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 20.04.2023 for reporting compliance concerning the payment.

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Sd/Chairperson

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rm-25

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Harshit Dinesh Mishra v. Aditya Birla Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

Harshit Dinesh Mishra v. Aditya Birla Housing Finance Ltd.

Case brief

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What did the court decide?

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