Delhi High Court – Orders
Anil Kumar Sharma vs Aditya Birla Finance Limited & Anr on 5 March, 2025
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2785/2025 and CM APPLs. 13197-98/2025
ANIL KUMAR SHARMA .....Petitioner
Through: Mr Kirti Uppal, Sr. Advocate with Mr
Sidharth Chopra, Mr Aditya Raj and
Mr Vineet Chadha, Advocates.
versus
ADITYA BIRLA FINANCE LIMITED & ANR. .....Respondents
Through: Ms Ojasvi Sharma, Advocate for R1.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE TEJAS KARIA
ORDER
% 05.03.2025
1. The petitioner has filed the present petition impugning an order dated
12.02.2025 (hereafter the impugned order) passed by the learned Debts
Recovery Appellate Tribunal (hereafter DRAT), whereby the learned DRAT
has declined to entertain the petition for want of compliance with the
mandatory requirement of pre-deposit in terms of Section 18 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereafter SARFAESI Act). The impugned order
indicates that on the said date, the learned counsel appearing for the
appellant had requested for time to make the pre-deposit. The said request
was acceded to and the learned DRAT had listed the appellant’s appeal
(Misc. Appeal No. 23 of 2025 arising out of SA No. 420 of 2024) for
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hearing on 04.03.2025. This court is informed that the learned Presiding
Officer was not available on 04.03.2025, and therefore, the hearing is now
adjourned to 04.04.2025.
2. The question whether the requirements of pre-deposit are mandatory
and non-derogable is no longer res integra. In Narayan Chandra Ghosh v.
UCO Bank and Others (2011) 4 SCC 548, the Supreme Court has held as
under:
“Section 18(1) of the Act confers a statutory right on a person
aggrieved by any order made by the Debts Recovery Tribunal
under Section 17 of the Act to prefer an appeal to the
Appellate Tribunal. However, the right conferred under
Section 18(1) is subject to the condition laid down in the
second proviso thereto. The second proviso postulates that
no appeal shall be entertained unless the borrower has
deposited with the Appellate Tribunal fifty per cent of the
amount of debt due from him, as claimed by the secured
creditors or determined by the Debts Recovery Tribunal,
whichever is less. However, under the third proviso to the
sub-section, the Appellate Tribunal has the power to reduce
the amount, for the reasons to be recorded in writing, to not
less than twenty-five per cent of the debt, referred to in the
second proviso. Thus, there is an absolute bar to
entertainment of an appeal under Section 18 of the Act unless
the condition precedent, as stipulated, is fulfilled. Unless the
borrower makes, with the Appellate Tribunal, a pre-deposit
of fifty per cent of the debt due from him or determined, an
appeal under the said provision cannot be entertained by the
Appellate Tribunal. The language of the said proviso is clear
and admits of no ambiguity.”
3. In a subsequent decision in Kotak Mahindra Bank Pvt. Limited v.
Ambuj A. Kasliwal & Ors.: (2021) 3 SCC 549, the Supreme Court had
reiterated the aforesaid view in the context of Section 21 of the Recovery of
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Debts and Bankruptcy Act, 1993. The relevant extract of the said decision is
set out below:
“13. A perusal of the provision which employs the phrase
“appeal shall not be entertained” indicates that it injuncts the
Appellate Tribunal from entertaining an appeal by a person
from whom the amount of debt is due to the Bank, unless
such person has deposited with the Appellate Tribunal, fifty
percent of the amount of debt so due from him as determined
by the Tribunal under Section 19 of the Act.”
4. Mr Uppal, the learned senior counsel appearing for the petitioner
submits that urgent interim relief is required to be granted in this case as the
petitioner’s property has been auctioned and the auction purchaser has fixed
sheets on the boundary of the property, which indicates that the auction
purchaser intends to demolish the property and reconstruct the same. He
submits that the principal challenge to the proceedings initiated under the
SARFAESI Act, are premised on the basis that they are violative of
principles of natural justice as none of the notices (either under Section
13(2) of the SARFAESI Act or Section 13(4) of the SARFAESI Act) were
communicated to the petitioner as he was in the judicial custody. He
submits that the petitioner would deposit 25% of the amount as claimed, but
would require that his appeal be heard expeditiously.
5. In view of the above, we direct that if the petitioner deposits the
minimum amount as required by the third proviso to Section 18(1) of the
SARFAESI Act, the petitioner would be at liberty to file an application
before the learned DRAT for an expeditious disposal of his application for
interim relief. Needless to state, if such an application is made, the same
would be considered by the learned DRAT.
This is a digitally signed order.
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6. The petition is disposed of in the aforesaid terms. Pending
applications shall also stand closed.
VIBHU BAKHRU, J
TEJAS KARIA, J
MARCH 5, 2025/tr
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This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 10/03/2025 at 21:35:55
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