Decided on January 14,2004



Pratibha Upasani, - (1.) THIS appeal is sought to be filed by the appellants/original defendant Nos. 3, 4 and 5 being aggrieved by the Order dated 22.1.2003 passed by the learned Presiding Officer of Debts Recovery Tribunal-Ill, Mumbai in Original Application No. 567/1999. By the impugned judgment and order, the learned Presiding Officer allowed the application filed by the Bank and ordered that the defendants were liable to pay to the applicant Bank sum of Rs. 10,03,74,766/- with future interest at the rate of 13.5% per annum with yearly rests from the date of the suit till realization of the amount. The learned Presiding Officer also gave certain consequential reliefs. Being aggrieved the original defendant Nos. 3, 4, 5 were jointed as party defendants in their capacity as guarantors have sought to be filed this appeal.
(2.) Today application for waiver of deposit as per the mandate of Section 21 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 is being argued. Provisions of Section 21 require the appellants/original defendants to deposit with this appellate Tribunal 75% of the amount as decided by the Tribunal under Section 19 of the RDB Act. I have heard Mr. N.H. Vyas for the appellants and Mr. Maniyar for the respondent Bank. I have also gone through the proceedings including the impugned judgment and Order and the application for waiver of deposit made by the appellants. Since what is being argued today before me is an application for waiver of deposit, I refrain from making any comments about the merits of the matter. However, even at a cursory glance of the impugned judgment and order, it is revealed that there appears to be a strong prima facie case against the appellants. The learned Presiding Officer has concluded from the facts that the defendants had no defence at all. As far as defence of the appellants that they had resigned as Directors of the defendant No. 1 company and the present Director who is defendant No. 2 has taken over all the liabilities is concerned, the learned Presiding Officer has observed that all transactions were earlier to the alleged retirement from the company as a Director and there could not be a unilateral retirement and it his to be accepted by the Bank to whom the guarantor have given the guarantee for the repayment of the dues and on the basis of the guarantee deed executed by them, the loan was advanced to defendant No. 1, and hence retirement from the firm or company, would not absolve the guarantor from the liability. Observing this, the learned Presiding Officer concluded that the defendants were jointly and severally liable to pay the outstanding, which had been claimed by the applicant Bank. As far as financial constraints of the appellants are concerned, there are no averments made by them in the application for waiver of deposit. The only averment made is that they do not have necessary resources to bear the burden of 75% of the amount awarded in the impugned judgment and order. It is simplicitor stated that the appellants have got good case on merits and in the interest of justice waiver of deposit be kindly granted. As observed earlier, the appellants do not appear to have made a strong prima facie case in their favour. No documents whatsoever about the financial position of the appellants are annexed. Under these circumstances, there is no reason why this appellate Tribunal should exercise its discretion under proviso to Section 21 of the RDB Act. In my view, taking into consideration overall view of the matter, this is not a fit case where complete waiver can be granted and it will meet the ends of justice if the appellants are directed to deposit Rs. 95 lacs within eight weeks from today. It is to be highlighted that the claim of the Bank is to the tune of more than Rs. 10 crores with future interest @ 13,5% per annum with yearly rests from the date of the suit till realization of the amount Accordingly, following Order is passed; ORDER The appellants to deposit with the office of the Debts Recovery Appellate Tribunal, Mumbai Rs. 95 lacs within eight weeks from today. Needless to say, if the above amount is not deposited within the prescribed period, the appeal to stand rejected without any further recourse. Recovery proceedings only as against appellants/original defendant No. 3 Mr. Ramesh Kanji Maskai, defendant No. 4 Bharat Kanji Maskai and defendant No. 5 Jitendra Pragji Thakker are stayed till next date. Misc. Application No. 186/2003 is disposed of accordingly. Matter to stand over for compliance to...... 10.3.2004. ;

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