Disposed

Mr Francis Harold Rosario v. Nkgsb Cooperative Bank Limited

DRAT13 May 2025IA/275/2025

Case brief

AI extract

What is this about?

The Tribunal dismissed an application for waiver of pre-deposit. It directed the appellant to deposit 25% of the deemed principal amount of Rs. 15,71,97,263/- in two instalments to proceed with the appeal challenging a pre-attachment order under the SARFAESI Act.

What did the court decide?

Directed appellant to deposit Rs. 3,92,99,316/- in two instalments by 20.5.2025 and 17.6.2025; deferred bank's possession taking until next hearing pending first instalment.

Mr Francis Harold Rosario versus Nkgsb Cooperative Bank Limited — Banking and Recovery | DRAT (2025)

¶1

I I k

¶2

DEBT RECOVERY APPELLATE TRIBUNAL- MUMBAI

¶3

IA No.275/2025 (WOO) IQ

¶4

Misc. Appeal Dv.No.686/2025.

¶5

Dated : 13.5.2025

¶6

Ld. Counserfor pe^itioners/appellants is present.. Ld. CpunsePfof respondent bank Is present-lh VG._ .

¶7

This- appiicatipn is filed Seeking waiver of pre-deposit- under Section 18 of the.SARFAESI.Act.

¶8

Ld. Counsel fpr the petitioners submitted that.^petitioners filed SA Nb.208/2625, challenging order passed under Section 14 of the SARFAESi Act by ld..-CMM„ Mumbai on. in Case; NO.312/SA/2014, in which ■petitioners'filed IA 893/2025 for Stay, of all proceedings. The said IA was rejected by Ld. Presiding Officer, DHT-IL Mumbai, against which this, appeal is. filed. ■It'is.his fUrthef submission that petitioners are not borrowers and that respondent bank claims that petitioners are. guarantors, and petitioners created secured interest th respect of' thje property mentioned in the.schedule of the aforesaid SA.

¶9

Ldr. Counsel further submitted that petitioners have not executed any memorandum of entry which was relied for creation of equitable mortgage by deposit of title deed.. It is furthersubmitted that the So.ciety has,not. given any ho objection for' creation of charge over'th’e petitioners' property.

¶10

It is further submitted .that dufihg.the prdceedingsbefdre.the Civil :Cpurt, Hon'ble.Hjgh Court of Murnbai and Hoh'bleSupf^fne Court .of India, petitioners were granted protection against taking, ppssessidh arid that continued. Jt Is further submitted that pn going through the documents,. Hon’ble Supreme Gourt.of India

¶11

.Jconto./-

¶12

directed the petitioners to approach the DRT for appropriate remedy. Ld. Counsel further submitted that the value of petitioners' property is Rs.60.00 lakhs only and the amount claimed from the borrower is Rs.21.00 crores. It is submitted that petitioners are prepared to deposit 10% of the aforesaid value towards pre-deposit. Ld. Counsel further submitted that if stay is not granted, petitioners' right in the property will be defeated.

¶13

In reply, Ld. Counsel for respondent bank submitted that with regard to alleged fraud said to have been committed against the petitioners, that plea was rejected by the Civil Court in its judgment in Suit No.829/2015. The said judgment was upheld by Hon'ble High Court of Mumbai in Appeal No.1156/2019 and the SLP(C) No.1486/2025 filed against the judgment of Hon'ble High Court of Mumbai was dismissed as withdrawn by the Hon'ble Supreme Court of India. Therefore, it is not open for the petitioners to agitate the ground of fraud again.

¶14

It is further submitted that when the matter was pending before the Hon'ble Supreme Court of India,* respondent bank produced all the loan documents including memorandum of entry executed by the petitioners.for creation of mortgage by deposit of title deed and Hon'ble Supreme Court of India chose to dismiss the SLP, as petitioners withdrew the same and under such circumstance only. the SLP came to be dismissed as withdrawn.

¶15

It is further submitted that as per demand notice dated 30.9.2013, the amount due was Rs.15,71,97,263/- and symbolic possession was taken on 12.3.2014. Arbitration Award was passed for a sum of Rs.21.00 crores on 13.7.2016. It is submitted that through sale of some of the properties bank realized a sum of Rs.4.05 crores and as of now the amount due is Rs.92.00 crores. Ld. Counsel added that as far as the subject property of the SA is concerned,

¶16

the value .would be around Rs;65;0p. Jakhs to 7(100 lakhs. Thus contending, Id. Cpunsel Tor respondent bank opposed th'e, waiver 'applicatidh and submitted -that, complete waiver cannot be entertained.

¶17

I have considered the rival submissions and perused the records.

¶18

Rerusal :of the order of Impugned; order of’theiLd. Presiding Officer shows that instead of approaching DRT for appropriate remedy againSt the measures taken under SARFAESI Act> petitioners-filbd Civil Suit in;OS No:829/2015.. Learned Civil Judge found .that .fraud alleged by the petitioner is hot true, therefore, dismissed the suit. ■Hon'ble High Court .of- Mumbai also confirmed the judgment of. Civil Cbuft. Thereafter, Hon'ble Supreme Court of India: also, dismissed the SIP, as hotpressed.

¶19

Instead of approaching, the bRTy. petitioners-circiirhyented the ■process by approaching Civil .Court, H'on'ble: High .Courv.of 'Mumbai ■and then Hon'ble Supreme Court of India, and ultimately came back, before the appropriate forum i.e. DRT. It is. seen that'the, -debtis of'the year‘2011.

¶20

PThe: contention of-the, petitioners ph merits'with regard io' forgery committed, etc, will,be .decided itrthe main -appeal. To entertain this appeal, pre-deposit is-mandatory.

¶21

Considering the fact that the loan availed is of the year 2011, demand notice is.of the year 2013, this Tribunal, taking note of the fact, that current outstanding is around Rs.92.00 crores, according to the submission of Id. Counsel for respondent bank, directs ithe petitioner to make :a pre-deposit 25% of Rs.15,71,97,263/-for .entertaining-this'appeal.

¶22

.Accordingly, . petitioners are. directed to deposit ;25% of Rs?15,7i,’9.7,263/- which comes, to 3,92,99;315.80pi rounded off to Rs3,92,99,316/-:in two equal instalments from todayj of which, the

¶23

first instalment of Rs.1,96,49,658/- shall be paid on or before 20.5.2025 and the second instalment of Rs.l,96,49,658/- shall be paid four weeks thereafter, i.e., on or before. 17.6,2025, failing which, appeal would stand rejected.

¶24

On-deposit of T‘ instalment of Rs.l,96,49,658/-^^^’ on or before 20.5.2025, taking of possession by respondent bank scheduled on 21.5.2025 shall be deferred till next date of hearing. Failure to deposit the first instalment by 20.5.2025, respondent bank will be at liberty to proceed further in the manner as known to law.

¶25

The pre-deposit should be made in the form of Demand Draft drawn in favour of the Registrar, DRAT, Mumbai, payable at Mumbai. In case pre-deposit is made within the stipulated period as mentioned above. Registry is directed to number the Appeal If it is otherwise in order and Registrar shall invest the same in a Nationalized Bank for a reasonable period and renew it

¶26

periodically, till further orders are passed.

¶27

Post the matter on 18.6.2025 for further proceedings.

¶28

IA^

¶29

CHAIRPERSON, DRAT, CHENNAI (IN-CHARGE, DRAT, MUMBAI)

¶30

Mr Francis Harold Rosario v. Nkgsb Cooperative Bank Limited

Case brief

What is this about?

What did the court decide?

Mr Francis Harold Rosario v. Nkgsb Cooperative 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

Coram

Case details

Similar cases

Ms Janvi Ornament versus Cholamandalam Investment and Finance Company Ltd.

Palak Bipin Shah versus the Zoroastrian Cooperative Bank Limited

Ms Unity Hospitals And Ors. versus Axis Bank Limited

Nitin Kalluram Dhandekar versus Encore Asset Reconstruction Company through its Authorised Officer

Shilpi Bhatia versus Axis Bank

Shivkumar Shankarrao Deshpande versus Indian Bank (Allahabad Bank)