Allowed

Ms B U Industries Ltd. and Another v. Central Bank of India

DRAT12 Apr 2023REGULAR APPEAL/67/2023

Case brief

AI extract

What is this about?

The tribunal allowed an application to condone delay in filing the appeal citing a Supreme Court extension order. It also disposed of an application for waiver of pre-deposit, treating the deposit made in a related appeal regarding the same Section 13(2) notice as sufficient for the present appeal.

What did the court decide?

Delay in preferring appeal condoned; IA 202 of 2022 disposed of by treating pre-deposit from Appeal No. 47 of 2022 as security for this appeal.

Ms B U Industries Ltd. and Another versus Central Bank of India — Insurance | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appl. Dy No. 295 of 2022

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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12.04.2023

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B. U. Industries & Anr.

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… Appellant

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-Vs-

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Central Bank of India & Anr.

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… Respondents Mr. Arjun Samanta, ld. Counsel with Mr. S.P. Chottapadhyay, ld. Adv., for appellant.

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Mr. Sudhir Kr. Senapathi, ld. Counsel for the respondent 1 and 2. Mr. Ajit Kr. Mishra, ld. Counsel with Mr. A. Mondal and Abhisekh Dey, ld. Counsel for the respondent no. 3.

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THE APPELLATE TRIBUNAL :

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I.A. 226 of 2022 is filed by the appellant u/s 5 of the Limitation Act for condonation of 736 days delay in preferring the appeal.

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Heard learned counsel for the appellant as well as learned counsel for the respondent and perused records.

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Impugned order is passed on 02.06.2020. Thereafter, CO No. 27 of 2021 and CO No. 09 of 2021 were filed by the appellant before the Hon’ble High Court at Calcutta wherein Hon’ble High Court has observed that there is an alternative remedy available, as such, appellant would be at liberty to prefer appeal before the DRAT, Kolkata in accordance with law. Further, interim order of status quo was passed for four weeks. Appeal was filed on 08.07.2022.

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Learned counsel for the appellant submits that Hon’ble Apex Court in Suo Motu Writ Petition No. 03 of 2020 dated 10.01.2022 has observed that in cases where the limitation would have

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expired during the period between 15.03.2022 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022.

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In the Revisional order Hon’ble High Court has given liberty to file the appeal in accordance with law. Thereafter, appellant has preferred the appeal on 08.07.2022. Hence, I find that the ground to be sufficient for condonation of delay. Accordingly, I.A. 226 of 2022 is allowed. Delay in preferring the appeal is condoned.

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I.A. 202 of 2022 is filed u/s 18(2) of the SARFAESI Act, 2002 praying for waiver from making pre-deposit.

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Learned counsel for the appellant submits that notice u/s 13(2) of the Act of 2002 was issued by the bank on 06.06.2018 wherein schedule of two mortgaged properties one at Darjeeling and other at Gangtok were described. It is submitted that both the mortgaged properties were subsequently auctioned. Separate appeal No. 47 of 2022 was filed challenging the same impugned order wherein an application for waiver from making pre-deposit was filed and it was decided on 10.02.2023 with the direction to the appellant to make pre-deposit an amount equal to 40% of the amount mentioned in the Section 13(2) notice. In compliance of the order appellant has deposited Rs.1,26,82,386/- as predeposit, but this amount does not include interest amount. Hence, respondent bank was directed to file quantum of interest.

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It is further submitted that there was only one notice issued u/s 13(2) describing schedule of two properties at Darjeeling and Gangtok. Further, two mortgaged properties were auctioned and both the properties were secured assets in one debt. Accordingly, the pre-deposit made in Appeal No. 47 of 2022 is deserved to be applicable in this appeal also.

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Learned counsel for the respondent opposed the prayer and submits separate auction was conducted.

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Having considered the submissions made by the parties I find that the ground to be sufficient as there was only one notice issued u/s 13(2) wherein schedule of two properties were described and subsequently auctioned both the properties. Two separate S.A.s were filed before the DRT, as such, two separate appeals were filed by the appellant challenging one notice issued u/s 13(2) and subsequent auction thereon. Pre-deposit was made by the appellant in Appeal No. 47 of 2022. Accordingly, I do not find any reason to make further pre-deposit in this appeal. Pre-deposit deposited in Appeal No. 47 of 2022 be treated as predeposit in this appeal. Accordingly, I.A. No. 202 of 2022 is also disposed of.

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Appeal be registered as regular appeal by providing regular appeal number.

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Opposition be filed within four weeks with advance copy to the appellant who may file rejoinder within two weeks thereafter.

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List on 16.05.2023 at Camp Court Siliguri.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 12 April, 2023 05/pkb

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