Smt Vidya Maurya and 2 Ors. v. Bank of Maharashtra and 2 Ors.

Appeal Dy. No. 89/2020 Date: 03.03.2023

Smt. Vidya Maurya & Ors. Vs. Bank of Maharashtra & Ors. Present : Shri S. C. Yadav, counsel for the appellants, Shri S. K. Gupta, counsel for the respondent-Bank.

The office report dated 02.03.2023 shows that no pre-deposit has been made and notice sent to the respondent no. 3 has returned back with endorsement “not known”. Therefore, the appellant is directed to take fresh steps within 10 days for service of notice upon the respondent no. 3 through publication in the newspaper having wide circulation in the area. Affidavit of service along with proof of publication be filed by the next date.

In the present case, the appellants have not deposited any amount towards minimum deposit of 25% of the amount due, which is mandatory in nature in view of third proviso of section 18 of the SARFAESI Act. The amount realized by the Bank from auction sale of the property of the appellant cannot be taken into consideration towards pre-deposit in view of the judgment passed by the Hon’ble Apex Court in Civil Appeal No. 8969 of 2022- M/s Sidha Neelkanth Paper Industries Private Limited & Another Vs. Prudent ARC Limited & Others decided on 05.01.2023 .

In the waiver application, the learned counsel for the appellants has stated that the property has been auctioned by the respondent-bank, but the same cannot be considered towards pre-deposit in view of the judgment as referred to above. Therefore, the appellants are directed to deposit minimum 25% of the amount due, which is mandatory in nature, by the next date fixed for entertaining the appeal. If the appellants do not deposit the said amount prior to the

next date fixed, the appeal shall stand dismissed as not entertainable for want of mandatory pre-deposit without further reference to this court. If the said amount is deposited by the appellants within the stipulated period, list this case on 25.05.2023 for hearing on waiver of the rest 25% of the amount due.