Disposed

Tara Pandurang Kulkarni v. Dcb Bank Limited

DRAT5 Aug 2024IA/518/2024

Case brief

AI extract

What is this about?

The Appellate Tribunal fixed a 25% pre-deposit of ₹34,18,813 on behalf of an elderly appellant challenging a SARFAESI notice, considering no demand notice was issued under Section 13(2) and the amount was enhanced after the mortgagor's death. Possession under Section 14 remains deferred pending payment.

What did the court decide?

Pre-deposit fixed at 25% (₹34,18,813). Possession under Section 14 deferred pending payment. First instalment due by 19.08.2024.

Tara Pandurang Kulkarni versus Dcb Bank Limited — Banking and Recovery | DRAT (2024)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson I.A. No. 518/2024 (WoD) In Appeal on Diary No. 1558/2024

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Between

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Tara Padnurang Kulkarni … Appellant/s V/s.

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DCB Bank Ltd. & Ors.

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…Respondent/s

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Mr V. S. Tokekar along with V.R. Kulkarni, i/b Mr V.S. Tokekar, Advocate for appellant. Mr V. Deshpande, i/b M/s V. Deshpande & Co., Advocate for the respondent bank.

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-: Order dated: 05/08/2024 :-

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The matter is taken up for hearing by way of a praecipe filed by the appellant for seeking urgent relief.

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The appellant is in appeal impugning the order dated 24.05.2024 in Interlocutory Application (I.A.) No. 1108 of 2024 in Securitisation Application (S.A.) No. 170 of 2024 on the files of the Debts Recovery Tribunal, Pune (D.R.T.) wherein conditional protection was granted to the appellant from the Sarfaesi action taken by the respondent bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”, for short) for recovering amount allegedly due from the borrower including the appellant. The Ld. Presiding Officer directed the appellant to deposit 10% of the amount for granting a

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stay which was not complied with.

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To entertain the appeal, the appellant will first have to comply with the direction of statutory provisions under Sec. 18 (1) of the SARFAESI Act to make a pre-deposit. The appellant has challenged the Sarfaesi action on various grounds. It is stated that the amount claimed is not correct and there was an extension of mortgage consequent to the demise of the mortgagor. Therefore, it is not binding upon the appellant. It is further contended that despite being the wife of the deceased mortgagor, she was not issued a personal notice under Sec. 13(2) of the SARFAESI Act which itself would make the Sarfaesi action invalid as against her. The amount demanded under Sec. 13(2) is ₹1,36,75,252.52. The appellant prays that since the demand notice has not been issued, there is no demand against her. Therefore, she has to be granted a total waiver of the pre-deposit. This argument of the Ld. Counsel appearing for the appellant is not acceptable because the second proviso to Sec. 18(1) of the SARFAESI Act states that 50% of the amount has to be deposited for entertaining the appeal. However, since she despite being a legal representative of the deceased mortgagor was not issued a demand notice under Sec. 13(2), there is a strong prima facie case in favour of the appellant. The fact that after the demise of the mortgagor, the amount was enhanced is also a strong point in favour of the appellant. But those are only grounds for which this Tribunal can invoke the discretionary power granted under the 3^rd proviso to Sec. 18(1) to bring the mandatory predeposit to the minimum of 25%. The appellant is a 90-year-old lady and it is stated that she has no independent source of income and

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therefore, is under financial strain. Considering these two points in favour of the appellant, the appellant is granted a waiver of 25% of the pre-deposit. The Appellant is, therefore, directed to deposit a sum of ₹34,18,813/- as pre-deposit for entertaining the appeal.

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It is pointed out that the possession is scheduled to be taken tomorrow i.e. 06.08.2024 under Sec. 14 of the SARFAESI Act. The Ld. Counsel appearing for the appellant undertakes to make RTGS payment of ₹2 lakhs today by 5.00 pm.

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Subject to the amount being received by way of RTGS with intimation to the Registrar and the Ld. Counsel appearing for the bank, the possession scheduled to be taken tomorrow i.e. 06.08.2024 shall stand deferred till the next date of hearing.

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The balance amount shall be paid in three instalments within a gap of two weeks each. as detailed hereinunder :

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Number of Instalments	Payment on or before
1^stInstalment of₹10,00,000/-	19.08.2024
2^ndInstalment of₹10,00,000/-	02.09.2024
3^rdInstalment of 12,18,813/-	17.09.2024

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Failure to pay the instalment/amount within the time stipulated would entail in dismissal of the appeal without any reference to this Tribunal.

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The amount shall be deposited in the form of a Demand Draft/RTGS with the Registrar of this Tribunal. Payment by RTGS shall be communicated to the Registry for verification.

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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,

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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 respondents are at liberty to file a reply in this appeal with an advance copy to the other side.

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Post on 20.08.2024 for reporting compliance regarding the first instalment.

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Sd/Chairperson

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mks-07

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Tara Pandurang Kulkarni v. Dcb Bank Limited

Case brief

What is this about?

What did the court decide?

Tara Pandurang Kulkarni v. Dcb Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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