ORDER
Pratibha Upasani, J. (Chairperson)
1. This appeal is sought to be filed by the appellants/original defendants being aggrieved by the judgment and Order dated 23.10.2002 passed by the learned Presiding Officer of Debts Recovery Tribunal, Pune in Original Application No. 567-P/2001. The learned Presiding Officer by the impugned judgment and Order directed issuance of recovery certificate in favour of the applicant Bank for recovery of Rs. 18,75,511.21 together with interest at the rate of 22% per annum with quarterly rests from the date of the suit i.e. 22.3.1995 till realization of the amount and the costs of the application from the opponents. He also gave certain consequential declarations. He also dismissed the counter claim filed by the appellant company and being aggrieved the present appeal is filed and what is being heard today is an application for waiver of deposit of 75% of the amount determined by the Tribunal under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred to as RDB Act).
2. I have heard Mr. Khatavkar for the appellants and Mr. Bhagwat i/b Divekar & Co. for the respondent Bank. I have gone through the proceedings including the impugned judgment and Order and the application for waiver.
3. Since what is being argued today is an application for waiver of deposit under Section 21 of RDB Act, I refrain from making any comments on merit of the case. However, if a cursory glance is made on the impugned judgment and order, which is under challenge, it appears prima facie, that there is correspondence which shows admission on the part of the appellants/original defendants of the amount to the tune of Rs. 14,51,292.14 and promissory note has been executed’ by the appellants for the said consideration. There appears to be another crucial letter dated 12.12.1992 wherein the defendants had requested the applicant Bank to transfer all outstanding balance of current account to a separate account and further agreed that they had executed various documents in favour of the applicant as required. The learned Presiding Officer held that the said letter “gives a blow to defendant’s case of non est factum and total, denial regarding execution of documents”. The defendants also appear to have been failed to show the learned Presiding Officer that rate of interest applied by the Bank was in any way violating of any of the circulars issued by the Reserve Bank of India. The learned Presiding Officer held that in the absence of such plea the transaction between the Bank and Lie borrower could not be reopened, in view of specific bar, contained in Section 21 (A) of the Banking Regulation Act and, thus, the outstanding to the tune of Rs. 18,75,511.21 stood proved.
As far as counter claim filed by the defendants/appellants herein is concerned, the learned Presiding Officer has observed that the defendants had failed to show that there were any wrong calculations of any interest and the amount’s claimed from 8,8.1991 to 13.3.1992 had no explanation at all. Observing this, he has held that counter claim had not been proved at all. Thus, it appears that the appellants did not have any prima facie case.
4. As far as financial constraints of the appellants are concerned, in the application for waiver financial disability of the appellants has not been pleaded at all. In para 4 of the said application, it is simplicitor averred that “the applicant has suffered huge financial loss am; is not in a position to deposit 75% of the debt amount is provided in Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.” Beyond that there is nothing, nor even a scrap of paper is annexed to substantiate the vague statement made by the appellants in para 4 of the said application. Rest of the averments in the said application are only on merits of the case, as to how the appellants have good case on merits and how the appellants have high hope of success in the appeal. Needless to say that these pleas can be considered only when the appeal is admitted and is taken up for final hearing.
Section 21 of the ‘RDB’ Act, 1993 mandatorily requires the appellants to deposit 75% of the amount is determined by the Tribunal under Section 19 of the ‘RDB’ Act, 1993 so that their appeal can be entertained by the appellate Forum, Deposit of 75% of the amount mentioned in the recovery certificate is a Rule and any deviation from this Rule is an exception. Discretion, which is conferred on this appellate Tribunal either to waive or to reduce the amount has to be exercised judiciously. Taking overall view of the matter, this is not a fit case where complete wavier can be granted to the appellants or amount should be reduced.
Another point which has to be highlighted is, as observed by the Hon’ble Supreme Court in the case of Vijay Prakash D. Mehta and Anr. v. Collector of Customs (Preventive), Bombay, AIR 1988 Supreme Court 2010 that the right of appeal can be conditional one. This is what the Supreme Court has observed in para 9 of this case (supra), which is as follows:
“Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.”
In short, what the Hon’ble Supreme Court has observed in this case is that the appeal is a creature of statute and can be circumscribed by the condition. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellants.
In view of the above discussion and considering entire material placed before me, in my opinion, the ends of justice will be met if the appellants are directed to deposit in the office of this appellate Tribunal 75% of Rs. 18,75,511.21 within 8 weeks from today. Hence, following Order is passed.
ORDER
The appellants to deposit with the office of DRAT 75% of sum of Rs. 18,75,511.21 within eight weeks from today.
Needless to say, if the above amount is not deposited within prescribed time, the appeal to stand rejected.
Mr. Bhagwat makes a statement that in the recovery proceedings attachment of the property (factory premises) of the appellants has already been levied.
In view of this, further recovery proceedings are stayed till next date.
M.A. No. 63/2003 is disposed of.
Stand over for compliance to 11.12.2003.
