Dismissed

R Gireeshwar Reddy v. Ms Pegasus Assets Reconstruction Pvt. Ltd.

DRAT15 Jun 2023REGULAR APPEAL/301/2018

Case brief

AI extract

What is this about?

The Tribunal dismissed the Respondent's I.A. seeking decree dismissal of the appeal due to insufficient pre-deposit. The Court held the prior order became final as it was unchallenged, and the I.A. was not maintainable as a review or recall application under the Act due to delay.

What did the court decide?

I.A. No. 85 of 2020 allowed turning the Impugned Order dated 07.03.2019 restored and appeal kept pending; I.A. itself dismissed for being not maintainable.

R Gireeshwar Reddy versus Ms Pegasus Assets Reconstruction… — Banking and Recovery | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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I.A. No. 85 of 2020 In Appl. No. 301 of 2018

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THE HON’BLE JUSTICE SHRI ANIL KUMAR SRIVASTAVA, CHAIRPERSON

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15.06.2023

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Sri R. Gireeshwar Reddy & Ors.

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… Appellants Vs. M/s. Pegasus Assets Reconstruction Pvt. Ltd.

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….. Respondent

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For Appellant : Mr. Pratik Ghosh, ld. Counsel. Mr. Avisekh Roy Chowdhury, ld. Counsel. For Respondent : Mr. Nimesh Mishra, ld. Counsel Ms. Sweta Gandhi, ld. Counsel.

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THE APPELLATE TRIBUNAL :

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I.A. 85 of 2020 is filed by the respondent for dismissal of the appeal or in the alternative for stay of instant proceeding till the appellant deposit a sum of Rs.93,79,197.45. Opposition filed by the appellant is on record.

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I have heard learned counsel for the parties and perused records.

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Appeal No. 301 of 2018 was filed by the appellant against the judgement and order dated 07.05.2018 passed by learned DRT-II Hyderabad in O.A. No. 652 of 2017 (old No. 211 of 2005) wherein the O.A. was allowed and defendants no. 1 and 2, namely, Sri R. Gireeshwar Reddy and Sri K. Ravinder Reddy were held jointly and severally liable to pay to the bank a sum of Rs.79,90,703.79 with subsequent interest at the rate of 18.5 per cent per annum simple from the date of filing O.A. till the date of realization. After filing of the appeal an order dated 07.03.2019

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was passed by this Appellate Tribunal. Operative portion of the order is as under :

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“Admittedly, the appellant has deposited 35% of the decretal amount. This Tribunal may relax the amount upto 25% in certain cases. It has been argued on behalf of appellant that appellant is facing financial hardship and he has deposited 35% of the decretal amount, so keeping in view the facts of the case I am inclined to grant relaxation of the 15% of the amount and the pre-deposit made by the appellant is sufficient to entertain the appeal. Accordingly, waiver application is disposed of.”

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On 12.02.2020 respondent filed this I.A. to the effect that

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the appellant has not deposited 35% of the decretal amount comes to Rs.93,79,197.45 rather appellant has deposited only Rs.27,96,800/- which is not in compliance of the provision of Section 21 of the Recovery of Debts & Bankruptcy Act, 1993. Accordingly, appeal be dismissed or stayed till the deposit of appropriate pre-deposit amount.

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Learned counsel for the appellant submits that instant I.A. is not maintainable as the order was passed on 07.03.2019 while I.A. No. 85 of 2020 was moved on 12.02.2020. This I.A. is neither a review application nor recall of the order rather it is filed for dismissal of the appeal for want of insufficient amount of predeposit.

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A bare perusal of the order dated 07.03.2019 will show that this Appellate Tribunal was impressed by the submission made by the learned counsel for the appellant to the effect that 35% of the decretal amount has been deposited. Further no objection was raised by the respondent at that stage regarding calculation that

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the amount is not sufficient in compliance of the provision of Section 21 of the Recovery of Debts & Bankruptcy Act, 1993.

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Instant I.A. is in the form of an application for review of the order, although learned counsel for the respondent submits that this application is moved u/s 19(25) of the Recovery of Debts & Bankruptcy Act, 1993. Section 19(25) of the Act is akin to the provision of Sec. 151 of CPC which empowers the Court with inherent power and such power can only be exercised in the matter where there are no specific provision available in the statute.

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Rule 5A in The Debts Recovery Tribunal (Procedure) Rules,

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1993 reads as under :

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“5A. Review.—

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(1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake of error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order.

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(2) No application for review shall be made after the expiry of a period of sixty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application.

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(3) Where it appears to the Tribunal that there is no sufficient ground for a review, it shall reject the application but where the Tribunal is of opinion that the application for review shall be granted, it shall grant the same:

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Provided that no such application shall be granted without previous notice to the opposite party to enable him to appear and to be heard in support of the order, a review of which is applied for.”

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Admittedly, application for review can only be filed within a

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period of 30 days from the date of order. Instant I.A. is filed much after lapse of 30 days. Even the recall application has to be filed within 30 days. Hence, in any case instant I.A. either for dismissal or for stay of the proceeding is not legally maintainable. Order dated 07.03.2019 was passed after hearing learned

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counsel for the parties. It is also admitted fact that this order was not challenged. Hence, the order attains finality. Accordingly, I do not find any merit in the instant I.A. application. It is liable to be dismissed and accordingly dismissed.

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List on 25.08.2023 for hearing of appeal.

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(Anil Kumar Srivastava, J) Chairperson

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Dated : 15.06.2023 20 /pkb

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R Gireeshwar Reddy v. Ms Pegasus Assets Reconstruction Pvt. Ltd.

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R Gireeshwar Reddy v. Ms Pegasus Assets Reconstruction Pvt. Ltd.

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R Gireeshwar Reddy versus Ms Pegasus Assets Reconstruction Pvt. Ltd.