SHRI RAJIVA AGRAWAL and ANR vs KOTAK MAHINDRA BANK LIMITED on 22 February 2024

**ORDER**

1. 1. The Appellants have filed the present Chamber Appeal against the order dated 05/10/2023 passed by Ld. Registrar declining registration of the proposed Miscellaneous Application.

2. 2. I have heard Ld. Counsel for the Appellants and perused the record.

3. 3. It appears that the Appellants sought to file Miscellaneous Application under Section 22(2)(g) of RDB Act, 1993 for setting aside ex-parte order dated 28/08/2012 passed by this Tribunal in OA No.66 of 2003. The Appellants have

averred that there was a delay in filing the said Miscellaneous Application. Therefore, Advocate of the Appellants prepared a draft of the Miscellaneous Application seeking condonation of delay in filing the application and the same was sent to the Appellants for the purpose of affirmation. The Appellants are residing abroad and hence, some time lapsed in receiving the affirmed application from abroad. Appellant No.1 herein also approached the Hon'ble High Court of Gujarat by filing SCA No.8590 of 2023 in which the Hon'ble High Court, vide order dated 01/09/2023, directed this Tribunal to dispose of the pending matter on or before 07/10/2023 after removal of office objections and interim relief granted earlier was extended till final disposal of the application.

1. 4. In light of aforesaid averments made by the Appellants and on perusal of the Miscellaneous Application sought to be filed by the Appellants, it appears that the Appellants have preferred application u/s 22(2)(g) of the RDB Act praying for setting aside ex-parte order dated 28/08/2012 passed by this Tribunal against the present Appellants in OA No.66/2003. Ld. Registrar has made following observations in the impugned order dated 05/10/2023:

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*"The appellant has also made prayer to set aside the Ex-parte order dated 26.09.2022 passed in Recovery Proceeding 132 of 2012 as the property is residential house B-144A Vijay path Tilak Nagar, Jaipur was attached by said order dated 26.09.2022 of Recovery Officer.*

*The objection was raised by registry that since Appellant has filed Appeal against Recovery Officer, hence they should pay 50% of Certificate Debt. It is pertinent to mention that as admitted by appellant a decree of Rs.7,27,51,756.40 with simple interest at rate of 12% has been passed against them in Original Application o.66 of 2003. It is also pertinent to mention that decree was passed in OA No.66 of 2003 on 28.08.2012 and present application for recall of Ex parte orer has been filed on 23.02.2023 vide Diary No.346 of 2023. The applicant has not filed any application explaining the delay in filing application neither against Ex-parte judgment dated 28.08.2012 nor against the attachment order dated 26.04.2022 passed by Recovery Officer."*

1. 5. From the above observations of Ld. Registrar, it appears that the objections raised by Ld. Registrar are two-fold i.e. (i) Non-filing of Application for Condonation of Delay and (ii) Non-deposit of 50% of Certificate Debt.

2. 6. With regard to first objection, the Appellants have already filed Application for Condonation of Delay in the present matter. Therefore, the said objection can be said to have been removed.

7. So far as the second objection pertaining to deposit of 50% amount of Certificate Debt is concerned, it would be relevant to reproduce the prayers contained in the present Miscellaneous Application, which read as under:

(A) *The Hon'ble Tribunal be pleased to set aside the ex-parte order dated 28.08.2012 passed in Original Application No.66/2003 so also be pleased to set aside the ex-parte order dated 26.09.2022 passed in Recovery Proceedings No.132/2022;*

(B) *Pending hearing and final disposal of the present application, the Hon'ble Tribunal be pleased to restrain the Recovery Officer from proceeding further with regards to the attachment of the property being residential house at B-144 A, Vijaypath, Tilak Nagar, Jaipur;*

(C) *The Hon'ble Tribunal may be pleased to grant such other and further relief/s as deemed just and proper by this Hon'ble Tribunal in the interest of justice.*

8. Considering the aforesaid prayers, it becomes clear that the Appellants have inter alia sought to set aside the ex-parte order dated 26.09.2022 passed in Recovery Proceedings No.132/2022. Therefore, the Appellants have virtually challenged the order passed by Ld. Recovery Officer for which the Appellants were required to file Appeal u/s 30 of the RDB Act.

9. In view of the prayer of the Appellants, this Tribunal is of the opinion that the provisions of Section 30A of the RDB Act would be attracted, which reads as under:

**"30A. Deposit of amount of debt due for filing appeal against orders of the Recovery Officer.**

*Where an appeal is preferred against any order of the Recovery Officer, under Section 30, by any person from whom the amount of debt is due to a bank or financial institution or consortium of banks or financial institutions, such appeal shall not be entertained by the Tribunal unless such person has deposited with the Tribunal fifty per cent of the amount of debt due as determined by the Tribunal."*

10. In view of the aforesaid provision contained in Section 30-A of the said Act, the Appellants are required to deposit with the tribunal 50% of the amount of debt due as determined by the Tribunal.

11. In the result, present Chamber Appeal is hereby partly allowed.

12. Registry is directed to register Diary No.346 of 2023 as Miscellaneous Application subject to deposit of 50% of the amount of debt due as determined by this Tribunal.

Pronounced in open Court on 22^nd day of February, 2024.

(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

\*ykb\*