- (1.) Challenge is made to an order dated 3rd December, 2014 passed by the Debt Recovery Appellate Tribunal at Kolkata in Appeal No. 176 of 2012 by which an application for stay being Application No. 366 of 2012 is disposed of directing the petitioner to deposit a sum of Rs. 1 Crore as condition for such stay. The opposite party-bank filed an application under Section 19 of the Recoveries of Debt Due to Banks and Financial Institution Act, 1993 before the Debt Recovery Tribunal to recover a sum of Rs. 13 Crores and odd together with the interest against the petitioners. In the written objection filed to the said application, the petitioners took the specific defence on maintainability of the said proceeding on the ground of limitation.
(2.) According to the petitioner, in view of the specific pleadings made in the said application by the opposite party-bank that the cause of action arose on 31.3.1995, the initiation of the said proceeding in the year 2006 is palpably barred by limitation. Both the parties filed the written notes of argument before the Debt Recovery Tribunal who by the judgment dated 10th July, 2012 allowed the said application negativing the plea of limitation. The petitioner challenged the said order before the Debt Recovery Appellate Tribunal, Kolkata in Appeal No. 176 of 2012. In the said appeal, an application for waiver of the pre-condition deposit under Section 21 of the said Act was taken out. By the impugned order, the Appellate Court disposed of the said application directing the petitioner to deposit a sum of Rs. 1 crore which shall be kept in an interest bearing fixed deposit.
(3.) The learned Advocate for the petitioner submits that the Appellate Tribunal ought to have waived the pre-condition deposit in its entirety in view of the fact that the claim of the bank is apparently barred by law of limitation. It is further submitted that since the right to recover the debt from the principal borrower ceases to exist being barred by limitation, it automatically absolves the guarantor from such liability. There is no dispute that right to file an appeal against an order of the Debt Recovery Tribunal is provided under Section 20 of the said Act. Section 21 mandates for pre-deposit to the extent of 75 per cent of the amount determined by the Debt Recovery Tribunal as conditioned precedent for entertaining the appeal. The power to waive the condition for pre-deposit is vested upon the Appellate Tribunal which should be exercised in the attending facts and circumstances. The discretion vested upon the Appellate Tribunal should be exercised judicially and not capriciously or whimsically. The discretionary order based on logic and upon consideration of the material facts available on record should not be readily interfered with by a higher forum. The higher forum should be reluctant to interfere with the discretion exercised by the Trial Court unless the Sub-ordinate Court/Forum has not given proper weightage to the consideration required in determining the relief to be granted.;