The question before the Apex Court in Axis bank vs. SBS Organics Private Limited was whether the amount deposited by the borrower as the prerequisite condition in filing the Secularization Application before the DRT or DRAT can be returned to the appellant if and when the appeal is disposed of ???
The Supreme Court held that the partial deposit before the Debt Recovery Appellate Tribunal (DRAT) as a per-condition for considering the appeal on merits in terms of Section 18 of the SARFAESI Act, is neither a secured asset, nor a secured debt, and hence refundable to the appellant on disposal of appeal.
Being a pure legal issue, it may not be necessary for us to refer to the factual position in detail. The first respondent, being a borrower and aggrieved by the steps taken by the secured creditor, filed Secularization Application No. 152 of 2010 before the Debt Recovery Tribunal, Ahmedabad. Though, initially an interim relief was granted, the same was vacated by order dated 20.01.2011. Therefore, the first respondent moved the Debt Recovery Appellate Tribunal, Mumbai under Section 18 of the SARFAESI Act. In terms of the proviso under Section 18, the first respondent made a deposit of Rs.50 lakes before the Appellate Tribunal. During the dependency of the appeal before the DRAT, Secularization Application itself came to be finally disposed of before the Debt Recovery Tribunal at Ahmadabad, setting aside the sale. Realizing that the appeal did not survive thereafter, the first respondent sought permission to withdraw the same and also for refund of the deposit of Rs. 50 lakhs. Permission was granted, however, making it subject to the disposal of the appeal. As the appeal itself was being withdrawn, the first respondent moved the High Court of Gujarat at Ahmadabad by way of Writ Petition (Special Civil Application), aggrieved by the observation that the withdrawal would be subject to the result of the appeal. The same was disposed of by order dated 05.03.2015 by the learned Single Judge, setting aside the said condition and permitting the first respondent herein to withdraw the amount unconditionally. Aggrieved, the appellant-Bank filed an intro-Court appeal. That appeal was dismissed by order dated 01.04.2015 by a Division Bench, and thus aggrieved, the Bank has come up in appeal before the Supreme Court Court.
The Court observed that the partial deposit before the DRAT as a per-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset or a secured debt, since the borrower or the aggrieved person has not created any security interest on such per-deposit in favour of the secured creditor.
The bench further observed “If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre-deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.“