Allowed

Drishti Land and Infrastructure Pvt. Ltd. v. State Bank of India

DRAT10 Feb 2023REGULAR APPEAL/52/2021

Case brief

AI extract

What is this about?

The Debts Recovery Appellate Tribunal allowed an application for waiver of pre-deposit. The bench held that the apex proviso of Section 18 of the SARFAESI Act applies only to borrowers and guarantors, thereby exempting other classes of persons, like a developer, from the requirement.

What did the court decide?

The application for waiver of pre-deposit is allowed.

Drishti Land and Infrastructure Pvt. Ltd. versus… — Contract and Commercial Disputes | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appeal No. 52 of 2021

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(Arising out of T.S.A. 67 of 2014 in DRT-III, Kolkata)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

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CHAIRPERSON

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10.02.2023 Drishti Land & Infrastructure Private Limited … Appellant -VsState Bank of India & 21 Others … Respondents Mrs. Arpita Saha with Ms. Sanjukta Ray and Ms. Rafat Reyaz, Learned Counsel for the Appellant Mr. Anirban Pramanik with Ms. Subhasri De, Learned Counsel for Respondents No. 1 and 2/Bank

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THE APPELLATE TRIBUNAL :

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I.A. 253 of 2022

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This is an application filed by Appellant for waiver from making pre deposit. Opposition to waiver application filed by Respondent Bank is taken on record.

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Instant appeal has been preferred by the Appellant against the judgment and order dated 22^nd September, 2020 passed by the Learned Debts Recovery Tribunal-III, Kolkata dismissing the SARFAESI Application filed by the Appellant.

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At the very outset, Learned Counsel for the Appellant submits that Appellant is neither borrower nor guarantor rather he is the Developer who executed a Development Agreement with the sister concern of the borrower with different percentage of share in the property. Borrower mortgaged his share in the property to the Bank. Appellant has nothing to do with such mortgage. However, Learned Counsel submits that the SARFAESI Application filed by the Appellant

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was dismissed by the Learned Tribunal hence the instant appeal is filed with an application for waiver.

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It is admitted that the Appellant is neither borrower nor guarantor, as has also been admitted by the Respondents. Learned Counsel for the Appellant has placed reliance upon a judgment passed by the Hon’ble High Court at Calcutta in C.O. 2070 of 2014 in the matter of Satish Tiwari -vs- The Authorised Officer, State Bank of India reported in (2014) 4 Cal LT 460 wherein it was held that :

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“ The second proviso to the relevant Section covers only the borrowers of the secured creditors and, by definition, the guarantors who have promised re-payment of the debt due from the principal debtor. Other classes of persons who prefer appeals have deliberately not been required to make the pre-deposit and it would be presumptuous to conclude that a person aggrieved within the meaning of the opening three words of Section 18 of the Act of 2002 would only be a borrower within the definition of the Act.”

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“The bank does not xx x x x. The only distinction that the statute makes is between borrowers and other classes of appellants. Borrowers, including guarantors, are required to make the pre-deposit; the other classes of appellants are not required to do so.”

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In view of the law laid down by the Hon’ble High Court in the aforesaid case, since Appellant is neither borrower or guarantor, application for waiver is allowed.

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Respondents No. 1 and 2, represented through Learned Counsel, Mr. Avishek Guha, may file opposition within four weeks with advance copy to the Appellant. Rejoinder, if any, be filed within two weeks thereafter.

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List on 25^th April, 2023 for hearing of appeal.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 10^th February, 2023 15/ac

Drishti Land and Infrastructure Pvt. Ltd. v. State Bank of India

Case brief

What is this about?

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Drishti Land and Infrastructure Pvt. Ltd. v. State Bank of India

Case brief

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