Friday, October 28, 2016

Ahmedabad-based call centres stole $300 million from Americans

The five Indian call centres charged with defrauding thousands of Americans, stole more than $300 million from their victims, US Homeland Security Secretary Jeh Johnson has said.

The official said an inter-agency effort resulted in the indictment of all five call centres and 56 people, including 31 from India, as well as the arrest of 20 others

Thursday, October 27, 2016

Call Centre Scam - US Justice Department

More than 60 individuals and entities, an overwhelming number of them Indians, were today charged by the Justice Department for allegedly participating in a multi-million dollar scam involving call centres based in India which conned thousands of American citizens. Twenty of these individuals were arrested in the US today, while 31 of these individuals and five call centers have been charged for their alleged involvement in the scam. An additional US-based defendant is currently in the custody of immigration authorities. Many of these, who were arrested in India recently, faces deportation to the US. The indictment alleges that the defendants were involved in a "sophisticated fraudulent scheme organised by conspirators in India, including a network of call centers in Ahmedabad", the Department of Justice said. Using information obtained from data brokers and other sources, call-centre operators allegedly called potential victims while impersonating officials from the Internal Revenue Service or US Citizenship and Immigration Services. According to the indictment, the call-centre operators then threatened potential victims with arrest, imprisonment, fines or deportation if they did not pay taxes or penalties to the government. If the victims agreed to pay, the call-centres would then immediately turn to a network of US-based co-conspirators to liquidate and launder the extorted funds as quickly as possible by purchasing prepaid debit cards or through wire transfers, federal prosecutors alleged. The prepaid debit cards were often registered using misappropriated personal identifying information of thousands of identity theft victims, and the wire transfers were directed by the criminal associates using fake names and fraudulent identifications, the indictment said. According to the indictment, the co-conspirators allegedly used "hawalas" to direct the extorted funds to accounts belonging to US-based individuals. These individuals were expecting the hawala transfers but were not aware of the illicit nature of the funds. The co-conspirators also allegedly kept a percentage of the proceeds for themselves. Mumbai Police unearthed the scam, involving more than Rs 500 crore, after raiding seven call centres on Mira Road. The con job had been going on for a few months, police have said. The daily transactions of the call centres stood at around Rs 1.5 crore. "This is a transnational problem, and demonstrates that modern criminals target Americans both from inside our borders and from abroad. Only by working tirelessly to gather evidence, build cases and working closely with foreign law enforcement partners to ensure there are no safe havens can we effectively address these threats," Assistant Attorney General Leslie R Caldwell told reporters at a news conference here. One of the call-centres extorted USD 12,300 from an 85-year-old victim from San Diego, California, after threatening her with arrest if she did not pay fictitious tax violations. On the same day that she was extorted, one of the US-based defendants allegedly used a reloadable debit card funded with the victim's money to purchase money orders in Frisco, Texas, the Justice Department said. Some of the victim's money ended up on cards which were activated using stolen personal identifying information from US-based victims, it said. The probe, which began in 2013, has revealed a trans- national criminal organisation was operating both in the US and overseas in India, making hundreds of millions of dollars. Treasury Inspector General for Tax Exemption, Russell George said since 2013, have received over two million contacts from individuals who said they have received solicitations. "Of that number, approximately 10,000 people have acknowledged they have fallen victim to this scam in the amount of USD 50 million," he said. Department of Homeland Security Inspector General, John Roth, said the case was massive. "Over USD 250 million in stolen money," he said. "These fraudsters exploited the immigrants fears of deportation and the insecurity of the elderly with this deceitful assertion of power. In many instances, the scammers portrayed themselves as immigration agents who called to collect fines resulting from faulty immigration paperwork. Fines not paid would result in the immediate deportation," he said. "These calls were from numbers that reflected that the call came from the national call center from the immigration services call center.

Wednesday, October 26, 2016

National Register of Citizens for Assam

The Supreme Court on Wednesday has directed all states, the Income Tax (IT) department and the Election Commission (EC) of India to extend their cooperation in the preparation of the draft National Register of Citizens (NRC) to weed out illegal immigrants from Assam. A bench of Justice Ranjan Gogoi and Justice Rohinton F. Nariman warned that the Chief Secretaries of states which do not cooperate with the authorities would be personally summoned to the court seeking explanation. An NGO Assam Public Works, said that of the 3,05,995 NRC applications/documents sent to 28 states for verification, only 8,223 had been verified so far. The court ordered the chief secretaries of the states concerned to take the matter seriously and send the verified copies to NRC department as early as possible. SC has also directed the Union Finance Ministry to speed up the verification of PAN card details sent by NRC, Assam. Out of 14 lakh PAN no, 6.5 lakh have been examined so far. The SC instructed the External Affairs Ministry (MEA) to verify the documents which had been sent to different countries through its Missions abroad. Election Commission was also asked to take immediate action regarding verification of 10,83,919 documents sent to the commission by National Register of Citizens.

Tuesday, October 25, 2016

Chief Information Commissioner Can Transfer Commissioners -Bombay High Court 

Chief Information Commissioner Can Transfer Commissioners: Bombay High Court 

The Bombay High Court has held that the State Chief Information Commissioner has powers under the Right to Information Act (RTI) to transfer State Information Commissioner from one region to another for the purpose of ensuring that the Commission functions in a smooth manner.

This significant ruling was delivered by a bench headed by Justice V M Kanade, who recently held that the State Chief Information Commissioner has such powers under section 15(4) of RTI Act to transfer State Information Commissioners from one region to another.

The bench was hearing a petition filed by a Pune-based journalist Vijay Kumbhar challenging the transfer of Ravindra Jadhav, State information Commissioner posted at Amravati, to another place.

Jadhav did not challenge his transfer but Kumbhar filed a petition challenging the transfer of Jadhav from Amravati to another place on the ground that the State Chief Information Officer had no powers under the RTI Act to transfer State Information Commissioners.

The high court was satisfied that the petitioner was a responsible public activist and hence it permitted him to file this petition as a PIL.

"In our view, the State Chief Information Commissioner has powers under section 15 (4) of RTI Act to transfer State Information Commissioners from one place to another to ensure smooth functioning of the Commissions in the State," the bench ruled.

"If there is any curb on his authority, the very aim and object of having the State Information Commission would be rendered nugatory and would be defeated. We do not see any substance in the petition," said the bench.

"The petition is therefore dismissed and the interim order passed earlier stands vacated," the bench ruled.

"It has to be remembered that the RTI Act was passed in order to ensure that there is transparency in the functioning  of the Governments and their instrumentalities. In a democratic country, citizens are required to be informed about the manner in which the governments and their authorities function so that there is no scope for arbitrary action and also to contain corruption and lastly to hold governments and their instrumentalities accountable," the bench further observed. 

HARESHBHAI DHIRUBHAI DANGER Versus STATE OF GUJARAT & ANR

Gujarat High Court
Hareshbhai Dhirubhai Danger vs State Of Gujarat & Anr on 21 September, 2016
 R/CR.MA/12577/2016 ORDER
 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 CRIMINAL MISC.APPLICATION
 (FOR ANTICIPATORY BAIL )
 NO. 12577 of 2016
 ==========================================================
 HARESHBHAI DHIRUBHAI DANGER ....Applicant
 Versus
 STATE OF GUJARAT & ANR. ....Respondents
 ==========================================================
 Appearance:
 MS. KITTY S MEHTA, ADVOCATE for the Applicant
 MS MONALI BHATT, APP for the Respondent-State
 NOTICE SERVED BY DS for the Respondent No. 2
 ==========================================================
 CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
 Date : 21/09/2016
 ORAL ORDER
1. This is an application for anticipatory bail.
2. The applicant apprehends his arrest in connection with FIR being CR-I No. 05 of 2016 registered
with the Liliya Police Station, District: Amreli for the offences punishable under Sections 304 A and
114 of the Indian Penal Code and Section 3(1)(IV) Scheduled Castes and the Schedules Tribes
(Prevention of Atrocities) Act, 1989 and Section 7 & 9 of the Prohibition of Employment as Manual
Scavengers and their Rehabilitation Act, 2013.
3. The complainant is served. He has chosen not to appear. To enable him to appear, list for further
consideration on HC-NIC Page 1 of 2 Created On Thu Sep 22 04:09:23 IST 2016
R/CR.MA/12577/2016 ORDER 28.09.2016.
4. It is ordered that till the next date of hearing, the applicant shall not be arrested in connection
with the offence in question.
Direct service is permitted.
(PARESH UPADHYAY, J.)

*********
R/CR.MA/12577/2016
Page 1 of 1Gujarat High Court
Hareshbhai Dhirubhai Danger vs State Of Gujarat & Anr on 21 September, 2016 R/CR.MA/12577/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 12577 of 2016 ========================================================== HARESHBHAI DHIRUBHAI DANGER ....Applicant Versus STATE OF GUJARAT & ANR. ....Respondents ========================================================== Appearance: MS. KITTY S MEHTA, ADVOCATE for the Applicant MS MONALI BHATT, APP for the Respondent-State NOTICE SERVED BY DS for the Respondent No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 21/09/2016 ORAL ORDER 1. This is an application for anticipatory bail. 2. The applicant apprehends his arrest in connection with FIR being CR-I No. 05 of 2016 registered with the Liliya Police Station, District: Amreli for the offences punishable under Sections 304 A and 114 of the Indian Penal Code and Section 3(1)(IV) Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989 and Section 7 & 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. 3. The complainant is served. He has chosen not to appear. To enable him to appear, list for further consideration on HC-NIC Page 1 of 2 Created On Thu Sep 22 04:09:23 IST 2016 R/CR.MA/12577/2016 ORDER 28.09.2016. 4. It is ordered that till the next date of hearing, the applicant shall not be arrested in connection with the offence in question. Direct service is permitted. (PARESH UPADHYAY, J.)



Monday, October 24, 2016

Only 57 borrowers defaulted on bank loan worth a whopping Rs.85,000 Crore

Only 57 borrowers have defaulted on bank loans worth a whopping Rs 85,000 crore. The Supreme Court said this after perusing a report submitted by RBI about persons who have taken loan worth over Rs 500 crore and defaulted and asked the central bank why their names should not be made public. “Who are these people who have borrowed money and are not paying back? Why this fact that the person has borrowed money and not paying back be not known to public,” asked a bench headed Chief Justice T S Thakur. The bench, also comprising Justices D Y Chandrachud and L Nageswara Rao, said if the bar was lowered below Rs 500 crore, then the default amount would cross over Rs one lakh crore. Observing that if people file an RTI query, they must know who the defaulters are, it asked the Reserve Bank of India (RBI) why the information on defaulters should be withheld. “People should know how much money a person has borrowed and how much money he needs to pay back. The amount payable should be known to public. Why should you withhold the information,” the bench said. Counsel appearing for RBI opposed the suggestion and said that not all defaulters were wilful. The cntral bank says it is working in the interest of banks and names of defaulters cannot be made public as per the statute, he said. To this, the bench said, “You (RBI) must work in the interest of the country, not just in the interest of banks”. Advocate Prashant Bhushan, appearing for NGO Centre for Public Interest Litigation (CPIL), favoured disclosure of the outstanding loan amount and cited an apex court verdict of December 2015 to claim that RBI has to provide all information. The bench said it will hear on October 28 the matter on the aspect of disclosure of names of defaulters. The apex court had earlier expressed concern over the growing amount of loans not being returned and said “people are taking thousands of crores and running away by declaring their companies insolvent, but poor farmers who take small amounts of Rs 20,000 or Rs 15,000 suffer.”

Sunday, October 23, 2016

Marriage vs Live-In-Relationship

Marriage vs Live-In-Relationship

Our general public is set out toward a huge upgrade attributable to the late patterns that have created seeing someone. It appears like increasingly couples are warming up to the possibility of a live-in relationship before they really get hitched. This developing pattern has brought up major issues about the distinction between live seeing someone and marriage.

Rules of Commitment

It is a generally accepted view that married couples are far more committed to each other than couples living together before marriage. However, this is highly debatable. Live-in relationships are also based on the basic principle of commitment. Albeit there is no legal document signed but just like in a marriage, in a live-in relationship too, two people come together because they feel an inextricable tie.

Financial Arrangements

Live-in relationships do guarantee immense financial freedom for both parties involved. In a marriage however, it is generally accepted that the married couple share their earnings and enter into joint financial venture. However, these rules are not carved in stone. In today’s day and age even married couples tend to keep their financial matters separate and many live-in couples decide to share their individual earnings.

Attitude of Society

Despite the fact that there are scores of couples who are opting for live-in relationships, the society still attaches a taboo to such relationships. The majority looks at live-in relationship as a dilution of morals and more importantly tradition. Marriage on the other is still venerated by most despite the alarming rise in the number of divorces and problems in relationships. Therefore, the primary difference between live-in relationships and marriage is that marriage has received the societal stamp of approval and live-in relationships are yet to do so.

Where do they stand in terms of Law?

A marriage is governed by a separate set of laws in all countries which safeguards the interests of both parties who enter into the union. Live-in relationships on the other hand have received due recognition in a few countries such as France and Philippines. In India, presently there is no law defining the maxims of a live-in relationship. The Supreme Court however, has observed in a current ruling that a woman who has lived in a live-in relationship for a long period of time should enjoy the same rights that a married woman is entitled to.

The decision to enter into a live-in relationship or a marriage depends entirely on the two people involved. They need to be aware of the pros and cons of both and should at the same time rationalise as to what they really want out of the relationship. Entering a live-in relationship because it is fashionable or marrying someone because that is what the society wants are both ill-informed decisions and hence should be avoided. Moreover, relationship help is available to both married and live-in couples. So there is no point in shying away from it in times of crisis.

Friday, October 21, 2016

SC bars BCCI from giving funds to state bodies

Supreme Court on Friday froze all financial transactions between the BCCI and state cricket associations by directing the apex cricket body not to disburse any funds, even for the match purposes, to them till they resolved to abide by the Justice R M Lodha panel recommendations on reforms.

The apex court also directed BCCI president Anurag Thakur and secretary Ajay Shirke to give undertaking on affidavit, before the Lodha panel and in apex court by December 3, stating how much time they would need to implement reforms.

A bench headed by Chief Justice T S Thakur and comprising Justices D Y Chandrachud and L. Nageswara Rao asked Lodha panel to appoint independent auditors to scrutinise all BCCI accounts.

The judgment, which was pronounced by Justice D Y Chandrachud, also directed the Lodha panel to ask the auditors to scrutinise the high-value contracts given by BCCI.

It directed the Lodha panel to fix a ceiling of high-value contracts of BCCI to be scrutinised by the auditors. The bench also asked the panel secretary to send a copy of the apex court order to the ICC chairman Shashank Manohar.

The apex court, on October 17, had reserved its order on implementation of the Lodha Committee recommendations for massive structural reforms in the cash-rich sports body.

The court had asked BCCI president Anurag Thakur and its General Manager (Cricket Operation) Ratnakar Shetty to explain the allegation that ICC CEO Dave Richardson was asked by BCCI to issue a letter that Lodha panel's directions tantamount to government interference.

Defending the two cricket administrators, senior advocate Kapil Sibal has said "BCCI is being portrayed as a villain. It's like all wrong things are happening due to BCCI".

The bench had noted that Thakur in his affidavit had made a reference that Manohar had expressed his views that the appointment of CAG nominee in the apex council would amount to governmental interference before that stand was rejected by the apex court in July 18 verdict.

The apex court had perused the affidavits filed by Thakur and Shetty in which the 41-year-old BCCI president had out-rightly denied having asked ICC CEO Dave Richardson to state that the appointment of 3-member committee headed by former Chief Justice of India R M Lodha committee would "tantamount to government interference" in BCCI's functioning.

The bench had noted that Shetty in his affidavit had said that no letter was sought from the ICC CEO as was alleged.

The apex court had on October 7 directed Thakur to explain by filing a "personal affidavit", the allegation "whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to government interference in the working of the BCCI".

It had ordered that no further amounts should be disbursed to state associations by BCCI, except where the State Association concerned passes a resolution saying it is agreeable to undertake and support the reforms as proposed and accepted by this Court in letter and spirit.

The apex court had said the 13 State Associations, to whom the payment has already been disbursed, shall not appropriate the amount, except after they have passed a resolution to abide by reforms suggested.

Image on pan masala ad shocks Pierce Brosnan

The 63-year-old James Bond star said his contract stated that he was to advertise a "breath freshener/tooth whitener".

Hollywood star Pierce Brosnan says he is distressed by the deceptive use of his image in ah Indian pan masala brand’s advertisement.

The actor said that he was deeply shocked and saddened to learn the pan masala product he was advertising may include ingredients that can cause cancer, reported People magazine.

Brosnan said he has the “greatest love and affection for India and its people.”

“As a man who has spent decades championing women’s healthcare and environmental protection, I was distressed to learn of Pan Bahar’s unauthorised and deceptive use of my image to endorse their range of pan masala products.

“I would never have entered into an agreement to promote a product in India that is dangerous to one’s health,” Brosnan said in a statement.

The 63-year-old James Bond star said his contract stated that he was to advertise a “breath freshener/tooth whitener,” which wouldn’t include an ingredient that turns saliva red.

According to the actor he agreed to advertise a single product only, and that it was presented as “all-natural containing neither tobacco, supari, nor any other harmful ingredient.”

“Having endured, in my own personal life, the loss of my first wife and daughter as well as numerous friends to cancer, I am fully committed to supporting women’s healthcare and research programs that improve human health and alleviate suffering,” the statement continued.

Brosnan has demanded the company to remove his image from all their products, and assured that he had no knowledge that he was endorsing items that would have a negative or painful reaction in India.

“I shall endeavor to rectify this matter. In the meantime, please accept my sincerest and heartfelt apologies to all whom I have offended,” the statement concluded.

The actor received a lot of flak and was even trolled on Twitter for featuring in advertisement of the pan masala brand.

Wednesday, October 19, 2016

Dalit cop beaten by PSI: SC body seeks report

The NationalCommission for Scheduled Castes (NCSC) has issued notice to Patan district superintendent of police and sought an action-taken report, after a dalit women constable alleged that she was beaten by a police sub-inspector in a police station.

According to the complainant,Nirupa Makwana (25), she is the sole breadwinner for her family of five siblings and elderly parents. Makwana's complaint states that a woman sub-inspector, Nikita Dodiya, who comes from a dominant so-called upper caste had on October 12 beaten her at the Shankheswar town police station.

After the incident, the commission headed by Raju Parmar on October 13 sent a notice to Patan SP Ashwin Chauhan asking for "a complete action taken report regarding the incident. The matter may be treated as most urgent."

Makwana said Dodiya called her on October 12 when she returned from a Muharram bandobast and asked her why she had spread rumours about her (Dodiya) being in a relationship with a male officer.

Court dismisses Satish Verma's plea against eviction

A city civil court on Wednesday dismissed an application filed by IPS officer and former investigator in Ishrat Jahan encounter case, Satish Verma, against the state government's notice asking him to vacate the government quarter in Ahmedabad.


Verma, who has been posted in the North-East region as IGP, CRPF, was asked to vacate his house in the city by the deputy collector in July. Verma moved Gujarat high court, which asked him to approach a proper forum. He moved the Central Administrative Tribunal (CAT) in Guwahati and the city civil court.


Verma argued that according to rules, as an officer posted in NE region, he is entitled to two HRAs or two houses - one at the place of his posting in the NE state and the second at his last posting place, where his family lives. The state government continued to oppose his stand.


Meanwhile, Guwahati CAT has ordered Gujarat government from taking any action with regard to evicting Verma from the government quarter. Verma placed this order before the court, but additional sessions judge A M Dave turned down his plea.

No tax on LPG sale outside Gujarat: High Court

Gujarat high court on Wednesday ruled in favour of Reliance Industries Ltdholding that the company will not have to shell out Central Sales Tax on the LPG it produces in Jamnagar refinery when it sells it outside Gujarat. This could lead to profit of hundreds of crores for oil and gas companies.


Earlier, there was an exemption in payment of duty only on sale of LPG within Gujarat, and a company had to shell out tax upon sale outside Gujarat. This was the arrangement for last one year after a division bench of the high court held so in response to a petition filed by Oil and Natural Gas Commission (ONGC). The PSU was thus exempted from paying tax upon LPG sale in Gujarat, but not outside the state.

Tuesday, October 18, 2016

Despite ban, complaints about sale of parking space pour in

The estate and town planning department of the municipal corporation received some 35 complaints of residential societies and commercial complexes selling parking space to occupants. Many complaints were from individuals aggrieved because their parking space was auctioned to residents who owned more than one vehicle. These incidents are growing and becoming a major conflict point across the city. The New West and West zones of AMC alone account for 52% of these complaints. These sales happen despite their being banned.

A May 27, 2011 notification from Gujarat's home department clearly bans sale or auction of common space after the Supreme Court's 2010 ruling in the case of Nahalchand Laloochand Pvt. Ltd versus Panchali Co-operative Housing Society Ltd. .

The notification also stated that if the promoter or builder enters into a written agreement with the buyer on sale of common space, then it will be considered void and equivalent to forging documents. The notification is now part of the Gujarat Ownership of Flats Act 1973.

In at least two complaints received by AMC zonal offices, it was mentioned that parking space was being "auctioned" for anywhere between Rs1.5 lakh in 2 BHK accommodations to Rs5.5 lakh in posh localities like Prahladnagar.

Usually, in some societies, parking slots are first allotted on a first-come-first-served basis. If the number of cars exceeds the slots available, allotment is done through an annual draws of lots. Some societies reshuffle parking slots so that no member can claim ownership of a slot. Extra parking slots cannot be allotted to a member until every member has been given at least one slot.

M/s MRB Roadconst. Pvt.Ltd. v/s Rupee Co-op. Bank Ltd. Bombay High Court



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.78 OF 2015
IN
WRIT PETITION NO.6778 OF 2014


M/s MRB Roadconst. Pvt.Ltd. ... Petitioner
v/s
Rupee Co-op. Bank Ltd. ... Respondent

Mr M.K. Shah for the Petitioner.
Mr Pratap Patil for the Respondent Bank.

CORAM :V.M. KANADE &  B.P. COLABAWALLA JJ.
Reserved On : 21st January, 2016
Pronounced On : 5th February, 2016
Judgment [ Per B. P. Colabawalla J. ] :-

1. This Review Petition seeks review of the order dated
10th June, 2015 passed by us in the above Writ Petition. On the
date when the order under review was passed, none appeared on
behalf of the Petitioner. We had perused the order passed by this
Court on 21st July, 2014 when this Court had granted time to the
Petitioner to deposit the amount of Rs.20,00,000/- in the Debt
Recovery Appellate Tribunal (for short, the “DRAT”), Mumbai
until further orders. The appeal filed by the Petitioner before the
DRAT was still pending. In this view of the matter, we had
extended the time granted by the DRAT for a further period of four
weeks with a direction that if the said amount of Rs.20,00,000/-
was not deposited in the aforesaid time, the appeal filed before the
DRAT, Mumbai would stand dismissed. With this direction, the Writ
Petition was disposed of. Thereafter, the learned counsel for the
Petitioner appeared before us and submitted that this order may be
reviewed as he was not heard before passing the said order. Since
this order was passed in the morning session, we had stated that
the Petitioner was at liberty to apply for review of this order by
filing an appropriate application. It is in this light that the Review
Petition has been filed before us.
2. Since the grievance of the Petitioner is that he was not
heard before passing the order dated 10th June, 2015 and the
issues raised by the Petitioner have not been dealt with by us in the
said order, we have heard Mr. Shah, the learned counsel for the
Petitioner, at length to examine whether the order dated 10th June,
2015 is required to be reviewed by us.
3. The learned counsel appearing on behalf of the Review

Petitioner submitted that the order dated 30th June, 2014 passed
by the DRAT, Mumbai in Miscellaneous Application No.237 of 2010
in Appeal No.197 of 2010 was perverse and illegal as it was
contrary to the mandate of section 18 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short, the “SARFAESI Act”). We must
mention here that the above referred Miscellaneous Application
was a waiver application filed by the Petitioner seeking full waiver
of deposit. By its order dated 30th June 2014, the DRAT, after
hearing the parties, directed the Petitioner to deposit a sum of
Rs.20,00,000/- with the Registrar of the DRAT within a period of
eight weeks in two equal installments. It was further directed that
if the aforesaid deposit was not made, the appeal would stand
dismissed. It is the correctness of this order that has really been
put in issue before us.
4. Before we deal with the contentions raised by the
Petitioner, it would be appropriate to briefly narrate the facts. In
the year 2003, the Petitioner – Company had availed of a cash
credit facility from the Respondent – Bank to the tune of
Rs.75,00,000/- vide Cash Credit Account No.147. The aforesaid

facility was secured by mortgage of immovable as well as
hypothecation of movable property. The immovable properties
mortgaged was land admeasuring about 32.5R, situated at Survey
No.65, Hissa No.5 (old Survey No.829, Hiss No.5) and land
admeasuring of 1H and 57.7R situated at Chovishwadi, Taluka
Haveli, District Pune (hereinafter referred to as the “mortgaged
properties”).
5. Admittedly, the Petitioner defaulted in repayment and
therefore the Respondent – Bank obtained a Recovery Certificate
against the Petitioner under section 101 of the Maharashtra Cooperative
Societies Act, 1960. Thereafter in the year 2006, the said
Cash Credit Account was transferred to a separate ledger
maintained by the Bank for defaulted accounts in which a decree /
recovery certificate had been obtained.
6. The Petitioner admittedly did not make any payment to
satisfy the recovery certificate issued against it. As on 31st July,
2007 the total outstanding amount due to the Respondent – Bank
was Rs.96,14,085.61. In this view of the matter, the Respondent –
Bank initiated proceedings under the provisions of the SARFAESI

Act by issuing a notice under section 13(2) thereof on 14th August,
2007. In the said notice the Petitioner was called upon to pay the
said sum of Rs.96,14,085.61 (as on 31st July, 2007) together with
interest thereon within 60 days of receipt of the said notice failing
which the Respondent – Bank would proceed to take measures
under section 13(4) of the SARFAESI Act. As the Petitioner did not
comply with the requisitions contained in the section 13(2) notice,
the Respondent – Bank proceeded to take possession of the
mortgaged properties on 15th February, 2008 under section 13(4)
of the SARFAESI Act. Being aggrieved by this action of the
Respondent – Bank, the Petitioner filed Securitisation Application
No.28 of 2008 under section 17 before the Debt Recovery Tribunal
(for short, the “DRT”), Pune raising several grounds therein. To
the aforesaid Securitisation Application, the Respondent – Bank
also filed its affidavit in reply inter alia contending that there was
no merit in the Securitisation Application and that the same ought
to be dismissed. After hearing the parties, the DRT, Pune, by its
detailed reasoned order dated 13th January, 2010 dismissed the
Securitisation Application filed by the Petitioner.
7. Being aggrieved by this order of the DRT, Pune, the

Petitioner filed an appeal under section 18 of the SARFAESI Act
before the DRAT, Mumbai in around 4th March, 2010. Along with
the said appeal, the Petitioner also filed a Misc Application for
waiver of deposit as contemplated under the 2nd and 3rd provisos to
section 18 and sought a full waiver of deposit. It was the contention
of the Petitioner that there was no amount determined by the DRT,
Pune under section 17 and therefore according to the Petitioner,
nothing was due from it as required under section 18 of the
SARFAESI Act. In these circumstances, the Petitioner sought a full
waiver of deposit. The relevant averments in the said waiver
application read as under:-
“That appellant has filed the present appeal challenging the order
of the DRT, Pune, dismissing securitization application of the
appellant. Therefore, in fact there is no any necessity to deposit
any amount as required by law. As there is no any amount
determined under sec.17 by DRT there cannot be said any dues.
Therefore the said condition of deposit of amount is required to be
waived.”
8. After hearing the Petitioner as well as the Respondent –
Bank, the DRAT, Mumbai passed its order dated 30th June, 2014
wherein, after giving credit of the amounts already deposited by the
Petitioner with the Respondent – Bank, the DRAT directed the
Petitioner to deposit a sum of Rs.20,00,000/- within a period of
eight weeks in two equal installments, failing which the appeal of

the Petitioner would stand dismissed.
9. For the sake of completeness, it would not be out of
place to mention that after the issuance of the notice dated 14th
August, 2007 under section 13(2) of the SARFAESI Act, no
payments were made by the Petitioner till 28th February, 2012.
The outstanding dues of the Respondent – Bank as on 29th
February, 2012 was to the tune of Rs.1,65,36,770.61. The
Petitioner had deposits with the Respondent – Bank of
Rs.5,29,441/- which were forfeited by it on the said date and credit
for the same was given to the Petitioner. Thereafter, one of the
guarantors to the transaction (Mr K.P. Malkani) sold one of the
mortgaged properties with the consent of the Respondent – Bank
and the sale proceeds thereof to the tune of Rs.1,18,00,000/- were
deposited with the Respondent – Bank on 24th March, 2012. After
giving credit for the aforesaid amount, the outstanding dues of the
Respondent – Bank as on 24th March, 2012 were Rs.52,24,200.16.
It is also common ground before us that after 24th March, 2012 no
amount has been deposited/paid by the Petitioner. In the affidavit
in reply to this Review Petition, it is the case of the Respondent –
Bank that as on 17th July 2015, the total outstanding dues of the
Petitioner (after giving credit of all amounts paid/deposited) are to

the tune of Rs.63,48,914.61.
10. Be that as it may, since the outstanding amounts as on
31st March, 2012 were Rs.52,14,200.61, the DRAT, Mumbai took
the aforesaid figure into consideration before ordering the
Petitioner to deposit a sum of Rs.20,00,000/- for the purposes of
entertaining its appeal under section 18 of the SARFAESI Act.
Needless to mention that this amount of Rs.20,00,000/- is less than
50% of the figure of Rs.52,24,200.61.
11. In this factual backdrop, Mr Shah, learned counsel
appearing on behalf of the Petitioner, submitted that admittedly the
Petitioner had deposited a sum of Rs.1,23,29,441/- (Rs.5,29,441/ +
Rs.1,18,00,000/-) with the Respondent – Bank against the amount
claimed in the section 13(2) notice of Rs.96,14,985.61. He
therefore submitted that having deposited amounts with the
Respondent – Bank more than what was claimed in the section
13(2) notice, the DRAT ought to have directed full waiver of deposit
and not put the onerous condition of a further deposit of
Rs.20,00,000/- as was sought to be done in its order dated 30th
June, 2014. He submitted that as per the provisions of section 18
and more particularly the 2nd proviso thereto, no appeal could be

entertained unless the borrower had deposited with the DRAT 50%
of the amount of debt due from him, as claimed by the secured
creditors or determined by DRT, whichever was less. According to
Mr Shah, admittedly in the present case, there was no
determination of the debt by the DRT. In this view of the matter,
Mr Shah submitted that the Petitioner was required to deposit with
the DRAT 50% of the amount of the debt due from the Petitioner as
claimed by the secured creditor (the Respondent – Bank in the
present case). According to Mr Shah, the amount claimed by the
Respondent – Bank in the section 13(2) notice was
Rs.96,14,085.61. After this, the Petitioner had deposited with the
Respondent – Bank a sum of approximately Rs.1,23,00,000/- and
therefore the Petitioner was not required to deposit any further
amount as stipulated in the 2nd proviso to section 18. To put it
simply, it was the argument of Mr Shah that the amount that is to
be taken into consideration for the purposes of ordering deposit
under section 18 of the SARFAESI Act would be the amount claimed
in the section 13(2) notice alone and not the accrued interest on
the said sum thereafter. For all the aforesaid reasons, Mr Shah
submitted that the order of the DRAT directing the Petitioner to
deposit a sum of Rs.20,00,000/- was perverse, illegal and contrary
to the statutory mandate as set out in the 2nd proviso to section 18

of the SARFAESI Act. This being the case, Mr. Shah submitted that
the order dated 10th June, 2015 passed by us needed to be reviewed
and the reliefs sought for in the Writ Petition ought to be granted in
favour of the Petitioner and the order of the DRAT dated 30th June,
2014 is required to be quashed and set aside. In support of the
aforesaid proposition, Mr Shah relied upon the following decisions:-
(i) Sivakumar Textiles v/s Debt Recovery
Appellate Tribunal, Chennai and others;1
(ii) Poonam Manshani v/s J. & K. Bank Ltd. and
another;2 and
(iii) Narayan Chandra Ghosh v/s UCO Bank and
others.3
12. The short but interesting question posed for our
consideration is what sum (claimed by the secured creditor) is to be
taken into consideration by the DRAT whilst determining the
amount that ought to be deposited by the borrower under section
18 of the SARFAESI Act (before its appeal can be entertained).
Would it be (i) on the basis of the amount claimed by the secured
creditor in the section 13(2) notice alone or (ii) whether the DRAT
also has to take into account the interest accrued on the said sum

till the date of filing of the appeal.
13. To understand the present controversy, it would be
necessary to refer to the provisions of section 18 of the SARFAESI
Act. Section 18 reads as under:-
“18. Appeal to Appellate Tribunal.—(1) Any person aggrieved, by
any order made by the Debts Recovery Tribunal under Section 17,
may prefer an appeal along with such fee, as may be prescribed to
an Appellate Tribunal within thirty days from the date of receipt of
the order of Debts Recovery Tribunal:
Provided that different fees may be prescribed for filing an
appeal by the borrower or by the person other than the
borrower:
Provided further that no appeal shall be entertained unless
the borrower has deposited with the Appellate Tribunal fifty
per cent of the amount of debt due from him, as claimed by
the secured creditors or determined by the Debts Recovery
Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to not
less than twenty-five per cent of debt referred to in the
second proviso.
(2) Save as otherwise provided in this Act, the Appellate Tribunal
shall, as far as may be, dispose of the appeal in accordance with
the provisions of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (51 of 1993) and rules made
thereunder.”
(emphasis supplied)
14. Section 18(1) provides that any person aggrieved by any order made by the DRT under section 17, may prefer an appeal to the DRAT within 30 days from the date of receipt of the order of
the DRT. The 1st proviso stipulates that different fees may be
prescribed for filing an appeal by a borrower and by a person other
than the borrower. The 2nd proviso, and which is really germane for
our purposes, inter alia stipulates that no appeal shall be
entertained unless the borrower has deposited with the DRT fifty
per cent of the amount of debt due from him as claimed by the
secured creditors, or determined by the DRT, whichever is less.
The 3rd proviso gives power to the DRAT to reduce the deposit
amount from 50% to 25% provided reasons for the same are
recorded in writing by the DRAT. As stipulated in the 3rd proviso,
the DRAT has no power to reduce the amount of deposit less than
25% of the debt referred to in the 2nd proviso. Section 18(2)
stipulates that save or otherwise provided in the Act, the DRAT
shall, as far as may be, dispose of the appeal in accordance with the
provisions of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (for short, the “RDDB Act”) and the Rules
made thereunder.
15. Since the 2nd proviso to section 18 stipulates that the
borrower has to deposit 50% of the amount of debt due from him, it
would also be apposite to refer to the definition of the word “debt”
appearing in section 2(ha) of the SARFAESI Act and which reads as
under :-
“(ha) 'debt' shall have the meaning assigned to it in clause (g) of
section 2 of the Recovery of Debts Due to Banks and Financial
Institutions Act 1993 (51 of 1993);”
16. As can be seen from the definition, the word “debt” shall
have the meaning assigned to it in clause (g) of section 2 of the
RDDB Act. Section 2(g) of the RDDB Act reads thus:-
“(g) “debt” means any liability (inclusive of interest) which is
claimed as due from any person by a bank or a financial institution
or by a consortium of banks or financial institutions during the
course of any business activity undertaken by the bank or the
financial institution or the consortium under any law for the time
being in force, in cash or otherwise, whether secured or unsecured,
or assigned, or whether payable under a decree or order of any
civil court or any arbitration award or otherwise or under a
mortgage and subsisting on, and legally recoverable on, the date
of the application;”
17. On an ex-facie reading of the said definition, it is clear
that the word “debt” has been given an extremely wide meaning
and means any liability (inclusive of interest) which is claimed as
due from any person by a bank or a financial institution during the
course of any business activity undertaken by such bank or
financial institution under any law for the time being in force, in

cash or otherwise, whether secured or unsecured, or assigned, or
whether payable under a decree or order of any civil court or any
arbitration award or otherwise or under a mortgage and subsisting
on, and legally recoverable on, the date of the application.
18. On a plain reading of the 2nd proviso to section 18(1) of
the SARFAESI Act read with the definition under the word “debt” as
defined in section 2(g) of the RDDB Act, it is clear that before an
appeal can be entertained by the DRAT, the borrower has to deposit
50% of the amount of debt due from him as claimed by the secured
creditors or as determined by the DRT whichever is less. If there is
no determination of the debt by the DRT under the provisions of the
RDDB Act, then the borrower would have to deposit 50% of the
amount of debt due from him as claimed by the secured creditors.
The provision on a plain reading does not in any way exclude taking
into consideration the future interest that is accrued on the debt
owed by the borrower to the secured creditor. In fact, the definition
of the word “debt” means any liability (inclusive of interest) which
is claimed as due from any person by a bank or a financial
institution. Therefore, if the claim made by the secured creditor in
the section 13(2) notice includes future interest, the same would
certainly be included in the “amount of the debt due” from the
:
borrower to the secured creditor as contemplated under the 2nd
proviso to section 18(1) of the SARFAESI Act. There is therefore
no justification to hold that it is only the figure that is mentioned in
the section 13(2) notice that is to be taken into consideration and
not the future interest accrued on the said sum, whilst determining
the deposit amount under the 2nd proviso to section 18 of the
SARFAESI Act. The amount of deposit would have to be determined
on the basis of the amount of debt due by the borrower to the
secured creditor on the date when the appeal is filed in DRAT. This
would not only include the amount mentioned in the section 13(2)
notice but also interest accrued thereon till the date of filing of the
appeal under section 18 of the SARFAESI Act. To our mind, this is
the only interpretation that is possible of the 2nd proviso to section
18 of the SARFAESI Act. If we were to accept the contention of the
Petitioner that the amount to be deposited by the borrower [under
the 2nd proviso to section 18(1)] would be only on the basis of the
sum/figure as mentioned in the section 13(2) notice and not the
interest accrued thereon after the date of the said notice, the same
would be violating the plain language of the statute. To interpret the
2nd proviso to section 18(1) in this fashion, to our mind, would
clearly violate the plain and unambiguous language of the said
section.

19. We must mention here that after the issuance of the
notice under section 13(2) and before the appeal is filed in the
DRAT under section 18 of the SARFAESI Act, if the borrower has
made any part payment of the debt due to the secured creditors,
then credit for the same would have to be given to the borrower and
for the purposes of deposit under the 2nd proviso to section 18(1),
the reduced amount (after giving credit) would have to be taken
into consideration for determining the amount required to be
deposited by the borrower. This is simply because on the date of
filing of the appeal, the debt due to the secured creditor would be
reduced after giving credit for the amount already paid.
20. In the view that we have taken we are also supported by
a decision of another Division Bench of this court in the case of
Godavari Laxmi Co-Op. Bank Ltd. Vs. Union of India and
another.4 The facts of the case were that Respondent No. 2 therein
was the borrower of the Petitioner – Godavari Laxmi Cooperative
Bank Ltd., and had filed proceedings under section 17 of SARFAESI
Act consequent to the issuance of a notice under section 13(4)
thereof. By judgment and order dated 7-3-2011, the DRT,

4 (2012) 4 Mh L J 472

Aurangabad dismissed the Securitisation Application of Respondent
No.2. Being aggreived thereby, Respondent No. 2 preferred an
appeal under the provisions of section 18 of the SARFAESI Act
before the DRAT, Mumbai along with an application seeking waiver
of deposit as prescribed under section 18(1) thereof, on 24-3-2011.
By an order dated 27-4-2011 the DRAT allowed the application filed
by Respondent No. 2 by observing that Respondent No. 2 cannot be
asked to deposit any more amount and no amount is required to be
deposited under section 18(1) of SARFAESI Act. In this factual
backdrop the Division Bench held as under:-
“7. The learned counsel appearing for respondent No. 2 submits
that proceedings were initiated before the Debt Recovery Tribunal,
Aurangabad consequent to the notice issued by the petitioner
under section 13(4) of the Act, 2002. Section 13(4) of the Act of
2002 relates to the amount claimed by the bank in notice issued
under section 13(2) of the Act of 2002. The counsel further submits
that in the possession notice, the petitioner bank had referred to
outstanding amount of Rs. 45,61,459.54 + interest and the present
outstanding amount of Rs. 24,61,985.54 + interest + expenses as
on 30-11-2009. It is submitted that even if these two figures of
amount claimed are clubbed together, it can be ascertained that
the respondent No. 2 having paid 41.50 lakhs in favour of the
petitioner bank, the pre condition for entertaining Appeal under
section 18 by Appellate Tribunal gets satisfied. In other words, the
respondent No. 2 claims that having deposited 50% of the amount
due from respondent No. 2 his Appeal filed before Appellate
Tribunal shall be entertained without calling upon the respondent
No. 2 to deposit any further amount.
8. We have perused the original record and proceedings, the
impugned order, reply filed by respondent, and the relevant notice
issued by the petitioner to the respondent No. 2. We have perused
the judgment cited supra.

9. There is no dispute between the parties that the bank had issued
notice under section 13(2) of the Act of 2002 on 11-5-2007. The
petitioner-bank had also resorted to measures as prescribed under
section 13(4) of the Act of 2002 by issuing a possession notice on
26-12-2009. The bank is entitled under section 13(4) of the Act of
2002 to take recourse to measures provided under the said
provisions to recover the secured debt on failure of borrower to
discharge his liability in full within the period specified in subsection
(2) of the Act.
10. In the facts of the case and considering the notice issued under
section 13(2) of the Act of 2002, we find that the petitioner bank
had claimed as present outstanding, an amount of Rs. 24,61,985.54
Ps. and accordingly, the charge was kept upon the subject property
by intimating public in general. The bank had described the
immovable property over which the charge was kept in the notice
issued under section 13(4) on 26-12-2009. Under the provisions of
section 17 of the Act of 2002, any person aggrieved by any of the
measures referred to in sub section 4 of section 13, is entitled to
approach D.R.T. Under the provisions of section 18 of the said Act,
any person aggrieved by any order passed by D.R.T. under section
17 may prefer an appeal along with such fees as may be
prescribed. The second proviso to section 18 of the said Act
provides that no appeal shall be entertained unless the borrower
has deposited with the Appellate Tribunal 50% of the amount of
debt due from him as claimed by the secured creditor
(emphasis supplied).
11. In the facts of the present case and considering the notice
issued by the petitioner bank to respondent No. 2 it is clear that the
amount due and claimed by the petitioner from respondent No. 2
for the purposes of entertaining the appeal by Appellate Tribunal
would be amount of Rs. 24,61,985.54 Ps.”
(emphasis supplied)
21. Applying the principles of law laid down earlier, we will
now examine whether the DRAT was justified in ordering the
Petitioner to deposit a sum of Rs.20,00,000/-. As set out above, the

section 13(2) notice issued by the Respondent – Bank to the
Petitioner was dated 14th August, 2007. In the said notice the
amount claimed as due from the Petitioner was Rs.96,14,085.61
together with future interest. From the date of the section 13(2)
notice (i.e. 14th August, 2007) to 28th February 2012, admittedly no
payments were made by the Petitioner. As on 29th February, 2012
the outstanding dues owed by the Petitioner along with the interest
accrued thereon came to Rs.1,65,36,770.61. On the very same date
(i.e. 29th February, 2012), the Respondent – Bank forfeited the
deposits of the Petitioner lying with it in the sum of Rs.5,29,441/-
and gave credit for the same in the loan account. Thereafter, one of
the guarantors (viz. Mr K.P. Malkani) sold one of the mortgaged
properties with the consent of the Respondent – Bank and the sale
proceeds thereof to the tune of Rs.1,18,00,000/- were deposited
with the Respondent – Bank on 24th March, 2012. After giving due
credit for the aforesaid amounts (Rs.5,29,441/- plus
Rs.1,18,00,000/-), the amount outstanding as on 24th March, 2012
was Rs.52,24,200.16. Admittedly, no further payments were made
by the Petitioner. The DRAT has taken into consideration this
figure of Rs.52,24,200/- for determining the amount that had to be
deposited under the 2nd proviso to section 18(1) of the SARFAESI
Act. It is pertinent to note that the appeal and the waiver

application preferred by the Petitioner before the DRAT, were filed
on 4th March, 2010. On the said date, the outstanding of the
Respondent – Bank was in excess of Rs.96,14,085/- as no payments
were made by the Petitioner between the date when the section
13(2) notice was issued (14th August, 2007) and the date of filing of
the appeal and waiver application (4th March, 2010). However, this
waiver application was heard by the DRAT on 30th June 2014. By
the time, the DRAT heard the waiver application, the Petitioner had
made part payments of Rs.1,23,00,000/- (approximately) towards
its debt due to the Respondent - Bank. It is in this view of the
matter that the DRAT whilst determining the amount to be
deposited under the 2nd proviso to section 18(1) of the Act took into
consideration the figure of Rs.52,14,200/-. Looking to these facts
and the clear language of the 2nd proviso to section 18(1) of the
SARFAESI Act, we do not think that the DRAT committed any error
in directing the Petitioner to deposit a sum of Rs.20,00,000/- with
the Registry of the Appellate Tribunal within a period of eight
weeks from the date of the said order in two equal installments. We
find that the said order is not only in conformity with the provisions
of section 18 of the SARFAESI Act but does complete justice
between the parties as it gives credit for the amounts paid by the
Petitioner to the Respondent – Bank before directing the Petitioner

to deposit a sum of Rs.20,00,000/- as a condition precedent to
entertaining its appeal. In this view of the matter, we do not think
that any case has been made out by the Petitioner for review of our
order dated 10th June, 2015.
22. Having said this, we shall now deal with the judgments
relied upon by Mr Shah. The first judgment relied upon by Mr Shah
was a decision of the Madras High Court in the case of Sivakumar
Textiles1. On careful perusal of the aforesaid decision, what can be
culled out therefrom is that the amount of “debt due from the
borrower as claimed by the secured creditor” would have no other
meaning except the amount claimed in the notice under section
13(2). We have no difficulty in accepting the aforesaid proposition.
However, the question still remains whether the amount claimed in
the 13(2) notice would be inclusive of future interest or otherwise.
If the claim for future interest has been made in the notice under
section 13(2), then the same would certainly have to be taken into
account for determining the figure that would be required to be
deposited by the borrower before his appeal can be entertained.
This is more so when one looks at the definition of the word “debt”
as defined under the SARFAESI Act which means any liability

1 AIR 2012 MADRAS 57

inclusive of interest claimed as due from any person by a bank or
financial institution during the course of any business activity
undertaken by the said bank or financial institution. We must also
mention that on a close scrutiny of the said decision, we do not find
any reference being made to the definition of the word “debt”
appearing in section 2(ha) of the SARFAESI Act. We therefore find
that this decision would not carry the case of the Petitioner any
further.
23. The second judgment relied upon by Mr Shah was a
decision of the Delhi High Court in the case of Poonam Manshani.2
It appears from the said decision that the Delhi High Court has
taken a view that the expression “amount of debt due from him, as
claimed by the secured creditors or determined by the Debts
Recovery Tribunal, whichever is less” would have to be determined
ignoring the interest component. On a close scrutiny of the
aforesaid decision, we find no reference in the same to the definition
of the word “debt” as defined under the provisions of the SARFAESI
Act. As mentioned earlier, the word “debt” means any liability
inclusive of interest claimed as due from any person by a bank or
financial institution during the course of any business activity

2 AIR 2010 DELHI 28

undertaken by the said bank or financial institution. When interest
is specifically included in the definition of the word “debt”, we see
no reason why the same ought to be excluded whilst determining
the amount that is to be taken into consideration for the purpose of
arriving at the figure to be deposited by the borrower under the 2nd
proviso to section 18(1) of the SARFAESI Act. In fact, on a perusal
of the said judgment, we do not find any reason given for making
such an exclusion. We, therefore, with great respect to the Delhi
High Court, are unable to agree with the ratio laid down in the
aforesaid decision.
24. The last judgment relied upon by Mr Shah was a
decision of the Supreme Court in the case of Narayan Chandra
Ghosh.3 We find that the reliance placed on this decision is wholly
misplaced. The issue before the Supreme Court in the aforesaid
decision was whether the DRAT had jurisdiction to exempt the
borrower preferring an appeal under section 18 of the Act from
making any pre-deposit in terms of the said provision. In other
words, the issue before the Supreme Court was whether the DRAT
had the power to grant a full waiver or whether it can waive only to
the extent of 25% as set out in the 3rd proviso to section 18(1) of the

3 (2011) 4 SCC 548 : AIR 2011 SC 1913

SARFAESI Act. This is clear from paragraphs 7, 8 and 9 of the said
decision and which read as under:-
“7. Section 18(1) of the Act confers a statutory right on a person
aggrieved by any order made by the Debts Recovery Tribunal
under Section 17 of the Act to prefer an appeal to the Appellate
Tribunal. However, the right conferred under Section 18(1) is
subject to the condition laid down in the second proviso thereto.
The second proviso postulates that no appeal shall be entertained
unless the borrower has deposited with the Appellate Tribunal fifty
per cent of the amount of debt due from him, as claimed by the
secured creditors or determined by the Debts Recovery Tribunal,
whichever is less. However, under the third proviso to the subsection,
the Appellate Tribunal has the power to reduce the
amount, for the reasons to be recorded in writing, to not less than
twenty-five per cent of the debt, referred to in the second proviso.
Thus, there is an absolute bar to the entertainment of an appeal
under Section 18 of the Act unless the condition precedent, as
stipulated, is fulfilled. Unless the borrower makes, with the
Appellate Tribunal, a pre-deposit of fifty per cent of the debt due
from him or determined, an appeal under the said provision cannot
be entertained by the Appellate Tribunal. The language of the said
proviso is clear and admits of no ambiguity.
8. It is well-settled that when a statute confers a right of appeal,
while granting the right, the legislature can impose conditions for
the exercise of such right, so long as the conditions are not so
onerous as to amount to unreasonable restrictions, rendering the
right almost illusory. Bearing in mind the object of the Act, the
conditions hedged in the said proviso cannot be said to be onerous.
Thus, we hold that the requirement of pre-deposit under subsection
(1) of Section 18 of the Act is mandatory and there is no
reason whatsoever for not giving full effect to the provisions
contained in Section 18 of the Act. In that view of the matter, no
court, much less the Appellate Tribunal, a creature of the Act itself,
can refuse to give full effect to the provisions of the statute. We
have no hesitation in holding that deposit under the second proviso
to Section 18(1) of the Act being a condition precedent for
preferring an appeal under the said section, the Appellate Tribunal
had erred in law in entertaining the appeal without directing the
appellant to comply with the said mandatory requirement.

9. The argument of the learned counsel for the appellant that as the
amount of debt due had not been determined by the Debts
Recovery Tribunal, the appeal could be entertained by the
Appellate Tribunal without insisting on pre-deposit, is equally
fallacious. Under the second proviso to sub-section (1) of Section
18 of the Act the amount of fifty per cent, which is required to be
deposited by the borrower, is computed either with reference to the
debt due from him as claimed by the secured creditors or as
determined by the Debts Recovery Tribunal, whichever is less.
Obviously, where the amount of debt is yet to be determined by the
Debts Recovery Tribunal, the borrower, while preferring an
appeal, would be liable to deposit fifty per cent of the debt due
from him as claimed by the secured creditors. Therefore, the
condition of pre-deposit being mandatory, a complete waiver of
deposit by the appellant with the Appellate Tribunal, was beyond
the provisions of the Act, as is evident from the second and third
provisos to the said section. At best, the Appellate Tribunal could
have, after recording the reasons, reduced the amount of deposit of
fifty per cent to an amount not less than twenty-five per cent of the
debt referred to in the second proviso. We are convinced that the
order of the Appellate Tribunal, entertaining the appellant's appeal
without insisting on pre-deposit was clearly unsustainable and,
therefore, the decision of the High Court in setting aside the same
cannot be flawed.”
25. We fail to see how this decision in any way advances the
case of the Petitioner. The issue raised before us was not an issue at
all before the Supreme Court and therefore the said judgment is
wholly inapplicable in the present case.
26. For the reasons stated earlier in this judgment, we do
not find anything illegal and / or perverse in order dated 30th June,
2014 passed by the DRAT. Consequently, we do not find any error
in our dated 10th June, 2015 requiring interference in review
jurisdiction. The Review Petition is accordingly dismissed.
However, in the facts and circumstances of the case, we leave the
parties to bear their own costs.
(B. P. COLABAWALLA, J.) (V. M. KANADE J.)

MINI APPA KANDA SWAMI @ MANI v/s.M INDRA -SEPTEMBER 21, 2016

MAT.APP.(F.C.).45/2011 Page 1

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Reserved on: 26.07.2016
 Decided on: 21.09.2016
MAT.APP. 45/2011

MINI APPA KANDA SWAMI @ MANI ..... Appellant
Through: Ms. Shailja Balasaria, Advocate.
versus 

M INDRA .... Respondent
Through: None.

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA
(JUDGMENT)

1. This appeal has been preferred by the appellant husband against the
order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his
petition for dissolution of marriage under Section 13(1)(ia) of the Hindu
Marriage Act (hereafter “the Act”) was dismissed.
2. Briefly, the facts are that the parties got married according to Hindu
rites and customs at JJ Colony, Delhi on 06.09.2003 and through the
wedlock one male child was born on 01.07.2004.
3. The petition for divorce was filed by the appellant on the ground of
cruelty, alleging that the respondent wife was pressurizing him to setup a
separate home as she did not want to live in a joint family. The appellant
MAT.APP.(F.C.).45/2011 Page 2
worked as a labourer and it is his contention that owing to limited
financial means it was not possible for him to set up a separate
independent household. It is further contended that despite several
attempts to explain the difficulty of setting up a separate household, the
respondent refused to cooperate and kept pressurizing the appellant. It is
argued that the respondent became overbearing and abusive and also
started misbehaving, not only with the appellant but also with his family
members. The respondent would get aggressive and on several occasions
had even beaten him. She also refused to do the household chores and
threatened to implicate him and his family members in false criminal
cases. Thereafter, on 21.11.2003, her parents visited her and instead of
advising her to mend her ways, supported her. The respondent continued
her atrocities against the appellant and his family and on 21.01.2004, left
the matrimonial home without giving any reasons. It is argued by the
appellant that he and his family members made several efforts for
reconciliation and even went to the respondent’s parental home on
10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the
company of the appellant. However, all such attempts failed. In fact, it is
alleged, that instead of sorting the differences, the respondent and her
MAT.APP.(F.C.).45/2011 Page 3
family threatened to implicate the appellant as well as his family members
in dowry demand cases. The appellant received a notice from CAW Cell
(Crime Against Women Cell) on 30.03.2005. A false complaint with
Mahila Ayog (Delhi Commission of Women) was also filed by the wife.
The appellant submits that he returned all the dowry articles to the
respondent on 25.04.2005. It is submitted that he did not condone the
wife’s cruelty in any manner and that their marriage reached a point of no
return with there being no likelihood of a patch up or sorting of
differences. Under such circumstances there could be no re-union of the
parties.
4. The respondent, who appeared in person in the proceedings, had
filed her written statement which controverted all the appellant’s
contentions and had urged that it was he who had treated her with cruelty.
She contends that the appellant had raised a demand of ` 1 lakh as well as
a motor cycle and when she could not make good of these demands, she
was turned out of the matrimonial home; she made efforts for
reconciliation, but to no avail. It is also contended that she was sent back
to her parental home when she was in family-way and all the delivery
expenses were borne by her parents.
MAT.APP.(F.C.).45/2011 Page 4
5. In the replication, the appellant had alleged that it was he who had
borne the delivery as well as post-delivery expenses and denied any
allegation that he had demanded any money or a motor cycle or even that
he had treated her with cruelty.
6. The Family Court heard the arguments and framed three issues:-
“a. Whether after the solemnization of marriage, the
respondent has treated 'the petitioner with cruelty'? OPP
b. Whether the respondent has deserted the petitioner ,
for a continuous period of not less than 2 years
immediately before presentation of this petition? OPP
c. Whether the petitioner is entitled for a decree of
divorce on the ground as prayed for? OPP
7. Parties led their evidence. While the appellant had examined
himself and his mother and one neighbour, the respondent had examined
herself and her father. After considering all the evidence on record, the
Family Court found that the husband had failed to discharge the burden
placed upon him and had failed to prove that the respondent had
committed cruelty of such nature which warranted a decree of divorce. It
was also observed that the husband had failed to prove that his wife had
deserted him for a continuous period of two years and dismissed the
petition.
MAT.APP.(F.C.).45/2011 Page 5
8. The impugned order is challenged by the appellant before this Court
on the grounds that the learned Judge has failed to take note of the
unrebutted statements of his witnesses and that there was no reason to
disbelieve their testimonies. Learned counsel for the respondent, Ms.
Shailja Balasaria submits that on a reading of the impugned order, there
appears to be an inconsistency in the observations made by the learned
trial Judge in para 22. Counsel urges that the judgment is based solely on
presumptions and suffers from infirmity and illegality and is liable to be
set aside.
9. It is further contended that the appellant is possessed of limited
financial means and in the circumstances could not have afforded a
separate independent household. The respondents demanded a separate
residence and committed acts of misbehavior which resulted in cruelty; by
passing the impugned order, the Family Court has erred in holding that the
demand of the respondent for a separate home was justified. It is further
argued that the Family Court wrongly relied upon a settlement reached
between the parties before the CAW Cell although no such settlement was
proved on record by the respondent.
MAT.APP.(F.C.).45/2011 Page 6
10. The question for consideration is whether the conduct of the
respondent/wife in the circumstance of the case, amounted to cruelty, to
entitle the husband to divorce. Cruelty could be physical or mental or
both. While it is easy to discern physical cruelty, mental cruelty has to be
assessed from the overall behavior of spouses as well as other incidental
factors. There is no doubt that in a matrimonial setup, a couple, which
decides to live together, invariably has different attitudes and opinions,
likes and dislikes, and more often than not spouses behave differently
when faced with the same situations. While disputes and arguments are
normal in a marriage, in order to constitute cruelty, the conduct of the
spouse should be something more serious than the ordinary “wear and
tear” of a marital life.
11. While considering whether a particular conduct constitutes cruelty or
not, the social status of parties, cultural background, physical and mental
conditions, customs and traditions etc. have to be considered. Mental
cruelty can be assessed from the continuous unprovoked conduct of a
spouse which causes embarrassment, humiliation, and anguish so as to
render the other spouse’s life miserable and unendurable. This conduct
should be of such gravity that the wronged party cannot be reasonably
MAT.APP.(F.C.).45/2011 Page 7
asked to put up with such conduct and continue to live with the other
party.
12. The Supreme Court in the case of A. Jayachandra v. Aneel Kaur
reported in (2005) 2 SCC 22, has observed as under:-
“It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would
constitute cruelty. It must be of such type as to satisfy the
conscience of the Court that the relationship between the
parties had deteriorated to such extent due to the conduct of
the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle
the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and
a consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within
the meaning of …….”
13. It is in the backdrop, of the behavior of parties, that the court has to
discern if the conduct complained is cruelty. There is no dispute as to the
fact that the appellant was working as a labourer. He was living in a house
built on a plot measuring 25 sq. yards, consisting of two rooms, along with
his parents, three brothers and three sisters. While the appellant in his
evidence deposed he had a room on the ground floor and one room on the
first floor, his mother in her deposition claimed that there were two rooms
on the ground floor and one room on the first floor. Even if the latter
account were taken to be true, it leads to a scenario where, three rooms
MAT.APP.(F.C.).45/2011 Page 8
accommodate eight adults. With the respondent joining her matrimonial
home and after the birth of their child, the number of members living in
that house further increased.
It was in the background of these facts that the learned trial Judge
held:-
“The petitioner has claimed that the respondent wanted to
stay in a separate accommodation. She definitely
requires/required one bedroom for herself and the
petitioner. Such a demand from the newlywed cannot be
considered as unwarranted or undesirable. If the
respondent at all wanted to stay in a separate
accommodation that could be only because she did not or
could not have the required privacy in the matrimonial
home in such a large family. I am, therefore, of the
considered view that her expectation/demand was not
unreasonable.”

14. Privacy is a fundamental human right. Oxford dictionary defines
privacy as “a state in which one is not observed or disturbed by the other
people.” So when a woman enters into matrimony, it is the duty of the
family members of her matrimonial home to provide her with some
privacy. There is no evidential backing by the appellant or his family
members showing that they had provided requisite privacy to the
respondent. The Family Court was therefore correct in holding that such
demand was not unreasonable and as such did not constitute cruelty.
MAT.APP.(F.C.).45/2011 Page 9
Besides this allegation, the appellant has not brought on record any proof
to substantiate the allegation that the behavior of the respondent caused
mental cruelty. The allegation that she was abusing the appellant and his
family members are vague and there are no specific instances cited.
15. The Family Court has further noticed on the basis of evidences on
record that the petitioner had taken a rented accommodation and stayed
there with the respondent, but later on abandoned her.
The Family Court relying on the evidences on record held:-
 “The record, further, reveals that the respondent had
lodged a complaint with CAW Cell and there, the parties
arrived at a compromise. The Respondent has claimed that
as per the settlement, it was agreed that the parties shall stay
in a separate independent accommodation. The Petitioner
has, however, stated that no such settlement was arrived at.
The Petitioner has taken the stand contradictory to his own
testimony in the court. He has testified in his crossexamination
that all the dowry articles of the Respondent as
per the list Ex. PW1/R1 were returned to the Respondent. He
denied the suggestion that any rented accommodation was
taken by them in E-Block Shakurpur. He, also, denied that
rent of the said accommodation was Rs. 1200/- per month or
that father of the Respondent was/has been paying the rent.
He, however, admitted voluntarily that all the dowry articles
of the Respondent are lying in that rented accommodation.
He, further, denied the suggestion that the articles are not
lying in the house of real Bua (sister of father of the
Respondent). If the Petitioner and the respondent had not
taken any rented accommodation in pursuance of the
settlement arrived at in CAW Cell, the Petitioner could not
have known that the dowry articles are lying in that rented
MAT.APP.(F.C.).45/2011 Page 10
accommodation. The Respondent has, therefore, rightly
claimed and testified in the court that the Petitioner stayed
with her in a separate rented accommodation for 2-3 days in
the year 2005 i.e. after the settlement arrived at in CAW Cell.
The dowry articles were returned to the Respondent on
25.04.2005 and thereafter, the parties stayed in a rented
accommodation for 2-3 days.”
16. The evidence clearly disproves the appellant’s contention that the
respondent left her matrimonial home and never returned. Rather, the
record shows that the appellant had set up the matrimonial home in a
rented accommodation, which he left and did not return to thereby
abandoning the respondent. In his cross-examination, the appellant has
also admitted that at the time of marriage the respondent had brought
dowry with her. His testimony is extracted as under:-
“At the time of my marriage respondent brought one bed,
some utensils, one refrigerator, one washing machine and one
almirah. We have returned all the articles of the respondent
which belongs to her as per the list mentioned Ex. PW1/R1.”
17. Interestingly, in the cross-examination of the respondent/wife a
suggestion was given which was accepted by the respondent, thereby
fortifying her stand that the appellant had demanded ` 1 lakh and one
motorcycle from her and on her failure to arrange the same, he abandoned
her. The suggestion which was accepted as correct by the respondent is “It
MAT.APP.(F.C.).45/2011 Page 11
is correct that petitioner demanded Rs. One Lac and one motor cycle from
me. This demand was raised in the presence of my in-laws.”
18. A person is not allowed to take advantage of his own wrong. The
appellant has failed to prove his allegation of cruelty. Not just this, he had
also demanded dowry and it is he who abandoned the respondent. Under
the circumstances, there is no infirmity in the order of the learned trial
judge inasmuch as the appellant is not entitled to a decree of divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section
23(1)(a) of the Act makes it abundantly clear that a decree can be granted
when the Court is satisfied that the petitioner is in no way taking
advantage of his wrong. Such is not the case here, as it is the appellant
who abandoned the company of his wife.
19. Lastly, it is urged by learned counsel for the appellant that the
parties have been living separately for the last 12 years and the marriage
has virtually lost its meaning for them as they have reached a point of no
return. She avers that there is no life in the marriage bond and that it
should be dissolved for this reason. She has relied on para 26 of the
Judgement in K. Srinivas Rao vs D.A. Deepa, 2013 (2) SCALE 735,
reproduced as under:-
MAT.APP.(F.C.).45/2011 Page 12
“We are also satisfied that this marriage has irretrievably
broken down. Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage Act, 1955.
But, where marriage is beyond repair on account of
bitterness created by the acts of the husband or the wife or
of both, the courts have always taken irretrievable
breakdown of marriage as a very weighty circumstance
amongst others necessitating severance of marital tie. A
marriage which is dead for all purposes cannot be revived
by the court's verdict, if the parties are not willing. This is
because marriage involves human sentiments and emotions
and if they are dried-up there is hardly any chance of their
springing back to life on account of artificial reunion
created by the court's decree.”
20. We have given thoughtful consideration to this argument of the
learned counsel. While there is no dispute to the fact that the parties have
not been living together for almost 12 years, yet a decree of divorce cannot
be passed on this ground alone as has been observed by the Supreme Court
in the Rao case (supra):-
“Irretrievable breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act.”
21. No doubt in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558, the
Supreme Court made a recommendation to the Union of India to amend
the Hindu Marriage Act to incorporate irretrievable breakdown of
marriage as a ground for divorce, yet till date this ground of divorce has
MAT.APP.(F.C.).45/2011 Page 13
not been added to the Act. Also in Vishnu Dutt Sharma v. Manju Sharma
(2009) 6 SCC 379, the Supreme Court held as under:-
“On a bare reading of Section 13 of the Act, reproduced
above, it is crystal clear that no such ground of irretrievable
breakdown of the marriage is provided by the legislature for
granting a decree of divorce. This Court cannot add such a
ground to Section 13 of the Act as that would be amending
the Act, which is a function of the legislature.
Learned Counsel for the appellant has stated that this Court
in some cases has dissolved a marriage on the ground of
irretrievable breakdown. In our opinion, those cases have
not taken into consideration the legal position which we
have mentioned above, and hence they are not precedents. A
mere direction of the Court without considering the legal
position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by judicial
verdict be adding a clause to Section 13 of the Act to the
effect that irretrievable breakdown of the marriage is also a
ground for divorce. In our opinion, this can only be done by
the legislature and not by the Court. It is for the Parliament
to enact or amend the law and not for the Courts. Hence, we
do not find force in the submission of the learned Counsel
for the appellant.”
22. The Supreme Court in Anil Kumar Jain vs. Maya Jain 2009 (12)
SCALE 115 clearly defined the jurisdiction of the High Court while
considering the ground of irretrievable breakdown of marriage as a ground
for granting divorce. The court has stated as under:
17. …….This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which do
not have powers similar to those exercised by the Supreme
Court under Article 142 of the Constitution.
MAT.APP.(F.C.).45/2011 Page 14
23. This Court thus lacks jurisdiction to dissolve a marriage on the
doctrine of “irretrievable breakdown”.
24. The findings of the Family Court that the respondent had no
intention to desert the appellant cannot be faulted with especially when
evidence shows that it was the appellant who had left her and the child in
the rented accommodation where he stayed with them only for 2-3 days.
25. The order of the family court does not warrant any interference.
The appeal has no merit and is dismissed.

DEEPA SHARMA
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
SEPTEMBER 21, 2016