1 wp455.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 455 OF 2010 M/s. Marvel Industries Limited & Anr. ...Petitioners. Vs. Union of India & Ors. ...Respondents. Mr. Rishabh Shah with Mr. Mahesh Shukla with Mr. Shrishail Kittad & Ms. Mrudula Khedekar i/by M/s. Dhir & Dhir Associates for the Petitioners. Mr. Satish Shetye with Ms. Jaymala Raut i/by M/s. Juris Consultus for Respondent No.2. Mr. Vinod Kothari i/by M/s. Apex Law Partners for Respondent No.3. Mr. P.S. Colabawala with Mr. Sachin Kudalkar i/by M/s. Madekar & Co. for Respondent No.4. CORAM : P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 18th October, 2010 P.C.:- It is submitted by the learned counsel for the petitioner that the petitioner company is a sick company and that the said question is pending in appeal before AAIFR. It is required to be noted that the petitioner made oral submission on 08-03-2008 that the petitioner company is willing to deposit the amount due and payable, as per the order of the Debts Recovery Appellate Tribunal to decide the appeal. We do not find any justification for reducing the amount as ordered by the Debts Recovery Appellate Tribunal. 2 wp455.10.sxw ssm So far as the challenge to the statutory provisions contained in the Securitization Act is concerned, the learned counsel for the petitioner submitted that in order to decide the appeal, it is the condition precedent to deposit minimum 25% of the amount, is arbitrary and the provision in the Act, in this behalf, is required to be set aside. 2. So far as challenge to the provisions of the Securitization Act is concerned, the Supreme Court has already decided the said issue in Mardia Chemicals Ltd. and Ors. Vs. Union of India and Ors., (2004) 4 S.C.C. 311 . It is also pertinent to note that in the case of in the case of R.V. Saxena Vs. Union of India & ors. AIR 2006, Delhi 96, the Division Bench of Delhi High Court has observed in Paragraph Nos. 16 and 17 as under:- “16. The right of appeal is not an inherent right but is a creature of the statute. The Legislature can impose conditions under which this is to be exercised. Moreover the proviso to Section 18 does not require the entire amount to be deposited, but only 50% thereof which can be reduced to a minimum of 25% of the sum. We see no illegality in this proviso. There are similar provisions in many enactments and they are being upheld by the Supreme Court. For example, in the second proviso under Section 15(1) of the Foreign Trade (Development and Regulation) Act, 1992, it is provided that the appeal against an order imposing a penalty or redemption charges have been deposited by the appellant. Similarly in many other statutes, there are such similar provisions. 17 In Gujarat Agro Industries Co. Ltd. Vs. Municipal Corporation of the City of Ahmedabad, (1999) 4 SCC 468; (AIR 1999 SC 1818), the Supreme Court referred to its earlier decision in Vijay Prakash D. Mehta Vs. Collector of Customers (Preventive )(1988) 4 SCC 402 : (AIR 1988 SC 2010) wherein the Supreme Court observed:- “The Right to appeal is neither an absolute right nor an 3 wp455.10.sxw ssm ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.” 3. In the case of Babu Ganesh Singh Deepnarayan Vs. Union of India & Anr., AIR 2009 Gujarat, 98, the Division Bench of Gujarat High Court has held in paragraph Nos. 5 and 6 as under:- “5. Right of appeal is a creature of the statute. Legislature can impose conditions under which it is to be exercised. Without a statutory provision creating such a right, a person aggrieved is not entitled to prefer an appeal. Legislature while granting right of appeal can impose conditions which it thinks reasonable. Such conditions merely regulate the exercise of right of appeal so that the same is not abused by a recalcitrant party, and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. Imposition of such a condition is essential, so that frivolous appeals would not be filed. Ultimately, if the appeal is dismissed, the aggrieved party can always seek refund of the amount deposited and therefore, he is not in any way aggrieved. Further the Third Proviso to Section 18(1) of the Securitization Act also enables the Appellate Tribunal for the reasons to be recorded in writing, reduce the amount to not less than 25% of the debt referred to in the Second Proviso. We are not prepared to accept the contention that conditions imposed in the second and third proviso to Section 18(1)of the Securitization Act are onerous in nature so as to make the right of appeal illusory. Delhi High Court in R.V. Saxena’s case (supra) also upheld the validity of second proviso to Section 18(1) of the Securitization Act with which we fully concur. 6. We have also not come across any provision in the Statute, enabling the secured creditor to adjust or appropriate the amount deposited by the borrower to prefer an appeal under Section 18(1) of the Act. On dismissal of the appeal the amount deposited as pre-condition for filing the appeal will be refunded to the appellant and therefore, he is no way prejudiced. We therefore, find no merit in the contention raised by the petitioner that the second proviso to Section 18(1) of the 4 wp455.10.sxw ssm Act is discriminatory or violative of Article 14 of the Constitution of India. Petitions lack merit and the same are dismissed.” 4 Considering the aforesaid aspect when it has been held by the two High Courts that the conditions imposed in the second and third proviso to Section 18(1) of the Securitization Act are not onerous and, therefore, the submission of the learned counsel for the petitioner that the said provisions are required to be struck down is without any justification. We do not find substance in the said challenge. There is equally no substance in the argument of the learned counsel for the petitioner that the judgments of the High Courts are in connection with the ordinary creditor and not in connection with the sick company. We do not find any merit in the petition and it is accordingly dismissed. No costs. (ANOOP V. MOHTA, J.) (P.B. MAJMUDAR, J.)