SUNSHINE BUILDERS AND DEVELOPERS Vs. HDFC BANK LIMITED

JUDGEMENT

(1.) The present Writ Petition assails an order dtd. 29/2/2024 (impugned order) passed by the Debts Recovery Appellate Tribunal, at Mumbai in an application preferred by the Petitioner under Sec. 18(1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 directing the Petitioner to make the pre-deposit as a condition precedent for its appeal to be entertained. Before the DRAT, the Petitioner had challenged a common order dtd. 7/10/2022 passed by the Debts Recovery Tribunal, at Mumbai in two applications which sought amendment of the pending Securitisation Application filed by it; the first of which, sought impleadment of the auction purchaser, whilst the other, sought to bring subsequent facts, including sale of the said property on the record, whilst also seeking condonation of delay in making such application. By the present Writ Petition, this Court is called upon to decide the Petitioners' challenge to the impugned order, which is primarily based on the ground that the said common order is merely a 'procedural' order which sought impleadment of a party, amendment and condonation of delay in doing so and not a 'final' order determining the liability of the borrower or any other person and hence, the provision of pre-deposit would not be attracted.

(2.) A brief narration of the facts, insofar as they are necessary for the adjudication of the disputes raised in the present Writ Petition, is set out hereunder :

(3.) Mr. Simil Purohit, learned counsel who appears on behalf of the Petitioner has taken us through the three Co-Development Agreements and the two Powers-of-Attorney executed by and between the parties. He submits that Respondent No. 3 was not entitled to mortgage the entitlement and share of the Petitioner in the free sale portion to be constructed on the said property and also in the sale proceeds thereof. He then invites our attention to the two Deeds of Mortgage and submits that the same have not been executed by his clients but instead, have been fraudulently and illegally executed by Respondent No. 3 purportedly as the Power of Attorney holder of his clients, without their prior notice and/or knowledge and also without their authority. As a result, he submits that the two Deeds of Mortgage are not valid and/or binding on his clients. In that regard, Mr. Purohit invites our attention to the Commercial Suit seeking such declaration and reliefs that has already been filed in this Court and informs us that the same is pending adjudication.