1. 1. The matter relates to an application under proviso of Section 21 of the RDDBFI Act, 1993 (51 of 1993), read with Rule 9 of the Rules.
2. The appellants have filed the instant appeal challenging the order dated 14th February, 2005, passed by the learned Presiding Officer, D.R.T., Cuttack, Orissa, in Original Application No. 130 of 2002, with the allegation that the said order is arbitrary, mala fide and in violation of the principles of natural justice, so far as the appellants are concerned.
3. The appellants contend that they have a strong prima facie case and have every chance of success in the appeal, that the appellant No. 1, Gyanaranjan Dash, has been suffering from serious financial crisis, that several attempts have been made for revival of the sick unit of the appellant No. 1, but those failed, that the appellant No. 1, however, is desperately trying to get the unit revived by organising private finance, that the super-cyclone in Orissa added to the misery in financial loss and fund crunch.
4. In the aforesaid facts and circumstances, the appellants taking resort to the proviso of Section 21 of the RDDBFI Act, 1993, prays for complete waiver of the pre-deposit of 75% of the amount of debt due as mandated under Section 21.
5. The respondent, State Bank of India, has stoutly negativated the contentions of the appellants and has said in their affidavits-in-opposition that it is not true that appellant No. 1 Gyanaranjan Dash, is at present suffering from serious financial crisis, that, as a matter of fact, the pharmaceutical unit of the appellant is running well, and that the appellants are in a position to deposit the statutory amount of 75% before this Appellate Tribunal, but that they are trying to avoid to pay the statutory amount. And so, it is contended by the respondent-Bank that the prayer for exemption of the statutory deposit is not at all justified and the application under Section 21 should be dismissed.
6. Heard both sides. The application is one under Section 21 of the RDDBFI Act, 1993, which reads as follows: Section 21. Deposit of amount of debt due, on filing appealWhere an appeal is preferred by any person from whom the amount of debt is due to a Bank or a financial institution or a consortium of Banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him as determined by the Tribunal under Section 19: Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.
The learned Advocate for the appellants trying to make out a case for complete waiver of the pre-deposit amount 75% has made his submission primarily on two counts: (a) that because of the "super cyclone" in 1999 in the State of Orissa, the whole default arose. The appellants i.e., the Pharmaceutical Firm in the name of B.G. Pharmaceuticals Ltd. represented by proprietor Gyanaranjan Dash was in a grave financial crisis and has become a sick unit.
(b) Attempts are being made for revival of the unit, "revival package" was submitted to the Bank since the unit went sick and the Bank even encouraged the revival package project during the pendency of the case before the D.R.T. However, with great financial strain, the unit is carrying on business with depleted staff, keeping primarily in mind the welfare of the workers.
In this view of the matter, the learned Advocate for the appellants prays for complete waiver of the pre-deposit as enjoined by the proviso to Section 21 of the RDDBFI Act.
7. The learned Advocate for the respondent Bank has submitted that cyclone relief has been granted to the firm by the Orissa State Financial Corporation, that the unit was sick three years back and the position must have improved by now; otherwise, the unit could not run with the employees working and getting regular payments. According to the learned Advocate for the respondent-Bank, the facts and circumstances do not warrant any relaxation of the mandatory 75% of the decretal amount.
8. The materials on record prima facie show that in the wake of the devastating super cyclone in the State of Orissa, many a concern, like the appellant firm is one, went into deep financial crisis and went sick, that there were serious attempts to revive them to salvage the economy and in that respect the Bank seemed not lagging behind. But, at the same time, it is true that unit is slowly and steadily getting over the crisis and running its unit.
9. Taking an overview of things for the purpose of Section 21 of the RDDBFI Act, 1993, I think, complete waiver of the 75% of the decretal amount shall not be justified. The decretal amount as adjudicated by the D.R.T. is to the tune of Rs. 35,16,101.01 paise and a sum of Rs. 5 lacs as pre-deposit under Section 21 of the Act would meet the ends of justice.
10. It is, therefore, hereby ordered that a sum of Rs. 5 lacs (Rupees five lacs only) shall have to be deposited by the appellants within a period of six weeks from the date of the communication of this order before the appeal can be entertained. The said amount of Rs. 5 lacs shall be deposited by demand draft in the name of Registrar, D.R.A.T., Kolkata, who shall make fixed deposit of the said amount with a nationalised Bank at the existing rate of interest. It is made clear that unless the amount deposited within the period as mentioned above, the appeal shall stand dismissed.
11. For the present, there may not be any coercive steps against the appellant within the period by which the amount is to be deposited as mentioned above.
A xerox of this order may be made available to the Advocates for the parties.