Farhan P. Dubash, J.

1. The present Writ Petition assails an order dated 29th February 2024 (impugned order) passed by the Debts Recovery Appellate Tribunal, at Mumbai in an application preferred by the Petitioner under Section 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 dated 7th October 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 :

                   A] The property which is subject matter of dispute in the present Writ Petition is a parcel of land bearing CTS Nos. 78 and 79 corresponding to Survey Nos. 91/2 and 4/3 admeasuring 18,156.40 square metres and 12,345.20 square metres respectively, situated at Village Gundavali, Taluka Andheri, Western Express Highway, Andheri (East), Mumbai (said property).

                   B] The said property is stated to have been declared as a slum under the Maharashtra Slum Area (I, C and R) Act, 1971 and the occupants of various structures thereon are said to have formed themselves into a co-operative society and are said to have appointed the Petitioner as the developer, to implement the slum rehabilitation scheme. The Petitioner is a builder who is said to carry on business of construction and development of properties. In this manner, the Petitioner is said to have become entitled to the said property.

                   C] On 21st March 2011, a Co-Development Agreement (1st Co- Development Agreement) came to be entered into between the Petitioner and Respondent No. 3 under which, the latter came to be appointed as the Co-Developer to develop the said property against payment of a sum of Rs. 97.50 crores to the Petitioner, who in turn, became entitled to 50% of the total constructed area in the free sale component to be constructed thereupon.

                   D] Within 10 days thereof, a Supplemental Co-Development Agreement (2nd Co-Development Agreement) dated 31st March 2011 came to be entered into between the Petitioner and Respondent No. 3 under which, the Petitioner agreed to forego its said entitlement to 50% of the total constructed area in the free sale component, in exchange for 50% net revenue from the sale of the free sale component.

                   E] Simultaneously, on 31st March 2011, a Power of Attorney (duly registered) also came to be entered into by the Petitioner in favour of the nominees of Respondent No. 3, in furtherance of the 1st and 2nd Co-Development Agreements, inter alia granting power and permitting Respondent No. 3 to create a mortgage, charge, lien or other encumbrance on the said property and on the free sale component to be constructed thereupon, excluding however, the 50% share of the Petitioner in the net revenue in the sale of the free sale component, as per the 2nd Co-Development Agreement.

                   F] On 30th December 2011 and 12th March 2013, two Deeds of Simple Mortgage (duly registered) came to be entered into between Respondent No. 3, Petitioner and Respondent No. 4, inter alia mortgaging the said property (excluding however, the 50% share of the Petitioner in the net revenue from the sale of the free sale component to be constructed thereupon) and another property at Bandra of Respondent No. 4, in favour of Respondent No. 1 Bank, pursuant to certain loan / financial facility being extended by it, to Respondent No. 3. [The Petitioner however contends that at the relevant time, it was neither informed nor was it aware of these two Deeds of Simple Mortgage being executed and/or of the said property or any part thereof being mortgaged with Respondent No. 1 Bank and this fact became known to it, only at a much later point in time. The Petitioner also asserts that Respondent No. 3 has illegally and without any authority and/or power, executed these two Deeds of Simple Mortgage by joining the Petitioner as a party Mortgagor thereto.]

                   G] On 12th December 2013, a Further Supplemental Co-Development Agreement (3rd Co-Development Agreement) came to be entered into between the Petitioner and Respondent No. 3 under which, the consideration payable to the Petitioner stood increased to Rs. 281.50 crores and the Petitioner also became entitled to retain constructed area of 1,25,000 square feet in the free sale component to be constructed thereupon.

                   H] Pursuant thereto, (and as was also previously done in the case of the 2nd Co-Development Agreement) a Power of Attorney (duly registered) came to be executed by the Petitioner in favour of the nominees of Respondent No. 3.

                   I] On 13th June 2015, a letter came to be addressed by the Petitioner to Respondent No. 3 in which, the Petitioner asserts that the latter had not been authorized to mortgage the said property or any part thereof and the two Deeds of Mortgage were executed (by Respondent No.3 in favour of Respondent No.1 Bank) without the consent and/or authority of the Petitioner and accordingly, Respondent No. 3 was called upon to forthwith obtain a release of any charge / mortgage created by it, on the area falling to the share of the Petitioner in the free sale component to be constructed in the said property.

                   J] On 13th February 2017, on account of default of Respondent No.3 in repayment of the outstanding dues to Respondent No.1 Bank, a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) came to be issued by Respondent No. 1 Bank to various parties, including the Petitioner and Respondent No. 3.

                   K] On 2nd March 2017, the Petitioner responded to the said Section 13(2) notice issued by Respondent No. 1 Bank and disputed its contents.

                   L] On 10th August 2017, symbolic possession of the said property is stated to have been taken by Respondent No. 1 Bank and its authorized officer, Respondent No. 2.

                   M] On 20th September 2017, Securitisation Application No. 82 of 2019 (SA) was filed by the Petitioner under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal, at Mumbai (DRT) inter alia challenging the steps taken by Respondent No. 1 Bank and Respondent No. 2, under Section 13 of the SARFAESI Act and to restrain Respondent No.1 Bank and Respondent No.2 from taking any further steps in respect of the said property.

                   N] By an order dated 2nd February 2018, passed by this Court in Company Petition No. 1049 of 2015, the Official Liquidator came to be appointed as the Liquidator of Respondent No. 3.

                   O] On 28th January 2019, an order came to be passed under Section 14 of the SARFAESI Act directing the Court Commissioner to take physical possession of the said property.

                   P] On 2nd January 2019, Respondent No. 1 Bank issued the Notice under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 (SARFAESI Rules) for sale of the said property, which was replied to by the Petitioner, vide its letter dated 19th January 2019. In turn, Respondent No. 1 Bank and Respondent No. 2 responded to this reply vide their letter dated 29th January 2019.

                   Q] Commercial Suit No. 1003 of 2019 (Commercial Suit) came to be filed by the Petitioner in this Court against Respondent No. 1 Bank, Respondent No. 2, Respondent No. 3 and Respondent No. 5 inter alia seeking declaration of fraud and cancellation of the two Deeds of Mortgage executed in respect of the said property and for injunction and damages. [However, till date, no interim / ad-interim reliefs have been granted to the Petitioner in this Suit.]

                   R] In exercise of powers under Section 13 of the SARFAESI Act and Rules 8 and 9 of the SARFAESI Rules, Respondent No. 1 Bank sold the said property and the requisite Sale Certificate dated 24th December 2019 came to be issued by Respondent No. 1 Bank and Respondent No. 2 in favour of Respondent No. 5, the Auction Purchaser.

                   S] Pursuant thereto, on the same date, viz. 24th December 2024, Respondent No. 5 is stated to have mortgaged the said property in favour of Respondent No. 1 Bank.

                   T] On 18th February 2020, the Petitioner preferred Interim Application No. 1431 of 2020 in the Commercial Suit seeking leave to amend the plaint to inter alia seek cancellation of the Sale Certificate dated 24th December 2019 issued in favour of Respondent No. 5 and the Deed of Mortgage dated 24th December 2019 executed by Respondent No. 5 in favour of Respondent No. 1 Bank.

                   U] On 28th January 2021, the Petitioner filed Miscellaneous Application No. 183 of 2021 in the SA inter alia seeking to implead Respondent No. 5 in the SA. [A perusal of the affidavit in support of this Miscellaneous Application would reveal that the Petitioner had learnt of the sale of the said property to Respondent No. 5 on 12th February 2020.]

                   V] Simultaneously, on 28th January 2021, the Petitioner also filed Miscellaneous Application No. 95 of 2021 (since, renumbered as Interlocutory Application No. 1652 of 2022) in the SA, to add further facts and subsequent events on record regarding the sale of the said property to Respondent No. 5 and also to seek additional reliefs in that regard. Considering that each measure taken by Respondent No.1 Bank under Section 13 of the SARFAESI Act can be independently challenged under Section 17(1) thereof within 45 days of the date on which such measure had been taken, the Petitioner also sought condonation of delay in filing such application.

                   W] A Sale Agreement is stated to have been executed between Respondent No. 5 and Respondent No. 1 Bank under which area admeasuring 2,96,960 sq. feet in the free sale component of the said property was sold by Respondent No.1 – Bank to Respondent No.5 for an aggregate consideration of Rs. 770.035 crores.

                   X] By a common order dated 7th October 2022, (common order) the DRT dismissed both the said Applications (being MA No. 183 of 2021 And IA No. 1652 of 2022) preferred by the Petitioner.

                   Y] Pursuant thereto, in November 2022, the Petitioner filed Miscellaneous Appeal (L) No. 128 of 2022 (Appeal) before the DRAT against the common order dated 7th October 2022 along with Interlocutory Application No. 614 of 2022 (waiver application) seeking waiver of the mandatory pre-deposit under Section 18(1) of the SARFAESI Act, primarily on the ground that it was neither the Borrower / Mortgagor / Guarantor.

                   Z] On 2nd May 2023, Respondent No. 5 is stated to have entered into a Development Agreement (duly registered) with Respondent No. 6 for development of the said property.

                   AA] By an order dated 21st July 2023, the Petitioner was permitted to implead Respondent No. 6 in the Appeal.

                   BB] The impugned order dated 29th February 2024 came to be passed by the DRAT in the waiver application rejecting the contention of the Petitioner and directing it to make a pre-deposit of Rs. 125 crores in three instalments, under Section 18(1) of the SARFAESI Act, as a condition precedent for entertaining its Appeal.

                   CC] The Petitioner filed the present Writ Petition which came to be dismissed by an detailed order dated 19th March 2024.

                   DD] This order of dismissal came to be set aside by the Supreme Court vide order dated 17th April 2025 and the present Writ Petition was remanded to this Court for a fresh hearing.

                   EE] In a subsequent order dated 18th November 2025 passed in a Review Petition preferred by Respondent No. 5, the Supreme Court has expressly clarified that this Court should not be influenced by the observations made in its earlier order dated 17th March 2024 including those made in paragraphs 12, 15 and 16 thereof.

SUBMISSIONS OF THE PETITIONER

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.

4. Mr. Purohit relies on the decision of the Supreme Court in Assistant Commissioner of Income Tax (Exemptions) Vs. Ahmedabad Urban Development Authority reported in (2023) 4 SCC 561 which discusses and reiterates the law defining the term, "unless the context otherwise requires" to mean that generally, the word or term so defined should be applied, subject to the context, collocation and the object of such words. The Apex Court discusses the importance of terms expressly defined in a statute since they are internal and binding aids to its interpretation and reiterates that the prefacing to any definition the phrase "unless the context otherwise requires" merely signifies that, in case there is anything expressly to the contrary, in any specific provision(s) in the body of the Act, a different meaning could be attributed. However, to discern the purport of a provision, the term, as defined, has to prevail whenever expression is used in the statute. It is further reiterated that this rule is subject to the exception that when a contrary intention is plain in particular instances, that meaning is to be given. Relying on the aforesaid decision, Mr. Purohit points out that the Definitions clause - Section 2(1) of the SARFAESI Act also begins with the identical phrase, "unless the context otherwise requires" and hence, the definition of the term, "borrower" contained in Section 2(1)(f) thereunder, is to be interpreted in such a manner, so as to exclude his clients, who did not execute the two Deed of Mortgage in favour of Respondent No. 1 Bank.

5. Mr. Purohit then relies on the decision of the Delhi High Court in Indiabulls Housing Finance Ltd. Vs. Vaibhav Jhawar and Others reported in 2018 SCC Online Del 12853 to urge that the term, "borrower" as contained in the second proviso to Section 18(1) of the SARFAESI Act does not include any other person i.e. other than a borrower or a guarantor and since, his clients are neither the borrower nor the guarantor in respect of the financial facility availed from Respondent No. 1 Bank, the stipulation of pre-deposit could not have been insisted upon by the DRAT on them, in the impugned order.

6. Mr. Purohit also relies on the decision of the Single Judge of this Court in Nagpur Integrated Township Pvt. Ltd. Vs. Maharashtra Real Estate Regulatory Authority, Mumbai and Others reported in 2020 SCC Online Bom 929 which holds that in cases where it is disputed that the Appellant does not come under the expression, “promoter” and therefore, not liable to make the pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016, (RERA) the Appellate Tribunal must take at least a prima facie view of the matter and only then, pass the order of pre-deposit. He submits that a similar interpretation ought to be applied to Section 18(1) of the SARFAESI Act and the DRAT ought to have recorded, at least a prima facie finding as to whether the Petition is a “borrower” before making the order of pre-deposit, especially when his clients contend otherwise and since this has not been done, the impugned order is required to be interfered with by this Court.

7. Mr. Purohit then invites our attention to the SA filed by his clients in the DRT to challenge the steps taken under Section 13 of the SARFAESI Act and submits that upon becoming aware of the subsequent measures taken by Respondent No. 1 Bank, which ultimately resulted in the sale of the said property to Respondent No. 5, his clients were advised to amend the SA that was already filed by it and pending before the DRT to challenge such measures, instead of preferring a fresh application for such purpose and it was under such circumstances that, his clients had taken out the said Miscellaneous Application to implead the Auction Purchaser – Respondent No. 5 in the SA and also taken out the said Interim Application to add these facts and subsequent events on record, regarding the sale of the said property in favour of Respondent No. 5 and also to seek additional reliefs challenging such measures whilst also seeking condonation of delay in preferring such application.

8. Mr. Purohit submits that the common order dated 7th October 2022 erroneously dismisses both the Applications preferred by his client by holding that they had failed to satisfactorily explain the delay in preferring them and the proposed amendment, if granted, would change the nature of the lis. He submits that the common order does not delve into and/or decide the merits of the contentions sought to be taken in the proposed amendment and merely dismisses the application at the first instance and without any proper adjudication thereupon. Accordingly, he contends that the DRAT ought to have appreciated that the common order was merely a procedural order and not a final order which adjudicates the substantial rights of the parties and/or determines the liability of borrower or any other party and therefore, Mr. Purohit submits that the impugned order erroneously directs his client to make the mandatory pre-deposit under Section 18(1) of the SARFAESI Act. Moreover, he submits that the DRAT ought to have appreciated that his client was neither the borrower nor the guarantor nor the mortgagor and as a result, the mandatory pre-deposit was not required to be paid by them.

9. Mr. Purohit relies on the decision of the Telangana High Court in Gade Sreenivas Reddy Vs. State Bank of India and Others reported in 2025 SCC Online TS 687 which held that a conjoint reading of Sections 19 and 21 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) indicates that the nature of the appeal contemplated under Section 21 is a substantive appeal arising from a determination of debt due to the Bank, Financial Institution or Consortium thereof and if the order under challenge was a mere procedural one, the same could not be brought within the stranglehold of the deposit requirement under Section 21. Mr. Purohit submits that a similar interpretation ought to be made applicable to Section 18(1) of the SARFAESI Act in the present case, since the common order was a mere procedural order, declining condonation of delay, proposed amendment of the SA and impleadment of the Auction Purchaser of the said property as sought by his clients, the DRAT ought not to have imposed the pre-deposit on his clients in the impugned order, by relying upon and applying the second proviso to Section 18(1) of the SARFAESI Act.

10. Mr. Purohit also relies on the decision of this Court in M/s. Gadekar Ginning and Pressing Pvt. Ltd. and Anr. Vs. Canara Bank and Anr. reported in 2024 SCC OnLine Bom 2924 and submits that even in the present case, since the common order was an order which refused condonation of delay in permitting his clients to amend the SA, the impugned order which directs making of the deposit as a pre-condition for entertaining its Appeal, is required to be set aside.

11. Mr. Purohit also relies on the decision of the Supreme Court in Mardia Chemicals and Others Vs. Union of India and Others reported in (2004) 4 SCC 311 to contend that an onerous condition of making a pre-deposit cannot be imposed as a condition precedent for entertaining the matter on merits.

12. Mr. Purohit therefore submits that the impugned order is required to be set aside and this Court ought to direct the DRAT to hear and decide the Appeal preferred by the Petitioner on merits, without insisting on any pre-deposit under Section 18(1) of the SARFAESI Act.

SUBMISSIONS OF RESPONDENT NOS. 1 & 2

13. At the outset, Mr. Prateek Seksaria, learned Senior Counsel who appears on behalf of Respondent No. 1 Bank and its authorised officer, Respondent No. 2, submits that under Section 18 of the SARFAESI Act, the DRAT has no power to waive the mandatory pre-deposit, irrespective of the nature of the order appealed against. He submits that Section 18 does not make any distinction between an interim order or a final order that is appealed against, or a sub-classification of the nature of interlocutory / interim or final orders appealed against, whilst laying down the mandatory pre-condition for entertaining an appeal.

14. In support of this submission, he relies on the decision of the Supreme Court in Raj Kumar Shivhare Vs. Assistant Director Directorate of Enforcement reported in (2010) 4 SCC 772. In this judgment, whilst interpreting the provisions of the Foreign Exchange Management Act, 1999 (FEMA), and in particular, Section 35 thereof, which confers jurisdiction on the High Court to entertain an appeal within 60 days from 'any decision of order of the appellate authority', the Apex Court held that the word 'any' would mean 'all' by holding that when a right is conferred on a person aggrieved, to file an appeal from 'any' order or decision, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning to only include a final order and not an interlocutory one and further that, where the right of appeal is limited only from a final order or judgment and not from an interlocutory one, the statute creating such right, would make it clear. In this context, the Apex Court had held that the right of appeal, being always a creature of statute, its nature, ambit and width has to be determined from the statute itself and when the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted, either to widen or restrict the same. By relying on this decision, Mr. Seksaria submits that the provisions of Section 18 of the SARFAESI Act are also clear and unambiguous and the mandatory pre- deposit is required to made in all matters, irrespective of the fact that the order under appeal was a mere procedural one, and not a final order which adjudicates the substantial rights of the parties and/or determines the liability of borrower or any other party, as contended by the Petitioner herein.

15. In this regard, Mr. Seksaria invites our attention to Section 18 of the SARFAESI Act and submits that its wordings are clear inasmuch as, the DRAT cannot entertain the appeal unless the pre-condition is satisfied since the right of appeal is created by statute itself and such right is conditional upon making the pre-deposit. He relies on the decision of the Supreme Court in B. Premanand and Ors Vs. Mohan Koikal and Ors. reported in (2011) 4 SCC 266 and contends that as per well-settled principles of statutory interpretation, when the meaning is plain, clear and unambiguous from which the legislative intent is clear, the literal rule of interpretation will apply to it and this Court need not call in to aid, other rules of construction of statutes, which should only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally, would nullify the very object of the statute. By relying on this judgment, Mr. Seksaria submits that this Court ought not to add words to the plain and clear language of Section 18 of the SARFAESI Act, by interpreting the said section in the manner, as suggested by the Petitioner herein.

16. Mr. Seksaria relies on the scheme of the SARFAESI Act and submits that the power of the DRT to pass an interim / interlocutory order of any nature is traceable only to Section 17 thereof, being ancillary to its jurisdiction and in such circumstances, Section 18 cannot be so interpreted to mean that an interim / interlocutory order is not referable to Section 17 since it is only in the context of proceedings under Section 17 of the SARFAESI Act that the DRT assumes jurisdiction and it is in aid of such jurisdiction that, the DRT passes any interim / interlocutory order. He relies on the decision of this Court in Vinay Container Services Vs. Axis Bank reported in 2011 (1) Mh.LJ 882 and the decision of the Delhi High Court in Satnam Agri Products Ltd. Vs. Union of India reported in 2014 SCC Online Del 6965 to contend that the nature of proceedings from which an appeal is filed under Section 18 of the SARFAESI Act is wholly irrelevant, and the requirement of pre-deposit applies not only to final orders but also to appeals against interlocutory orders.

17. Mr. Seksaria also relies on the decision of the Supreme Court in Union Bank of India Vs. Rajat Infrastructure Pvt. Ltd. reported in (2020) 3 SCC 770 and submits that Section 18 of the SARFAESI Act provides for an absolute bar from entertaining an appeal unless the condition precedent of a pre- deposit is fulfilled and therefore, he submits that the DRAT is not empowered to grant or allow a full waiver of the mandatory pre-deposit despite the nature of proceedings from which the appeal arise.

18. Mr. Seksaria then invites our attention to the two Deeds of Simple Mortgage dated 30th December 2011 and 12th February 2013 executed in favour of Respondent No. 1 Bank and submits that a bare perusal of these instruments would reveal that the Petitioner is a party thereto, in its capacity as the Mortgagor of the said property. He has painstakingly taken us through the relevant clauses of the 1st and 2nd Co-Development Agreements and also the Power of Attorney dated 31st March 2011 executed by the Petitioner in favour of the nominees of Respondent No. 3 and asserts that, Respondent No. 3 was fully authorised and entitled to execute the said two Deeds of Simple Mortgage in favour of his clients. He points out that both these instruments have since been registered in accordance with law and accordingly, the Petitioner cannot be permitted to urge something that is ex-facie contrary to the written terms and conditions contained therein. He further submits that despite the Petitioner challenging these two Deeds of Mortgage as far back as in April 2019 by filing Commercial Suit No. 1003 of 2019, till date, no interim or ad-interim reliefs have been granted in their favour therein.

19. Mr. Seksaria relies on the definition of the term, "borrower" in the Section 2(1)(f) of the SARFAESI Act, which expressly includes a person that has created a mortgage and accordingly, submits that since the Petitioner is admittedly shown as a Co-Mortgagor in the said two Deeds of Simple Mortgage, the mandatory pre-condition of deposit contained in the second proviso to Section 18(1) of the SARFAESI Act clearly applies to the Petitioner in the facts of the present case. In support, he relies on the decision of the Supreme Court in Rajat Infrastructure (supra) and a decision of this Court in Keystone Constructions Vs. SBI reported in 2013 SCC Online Bom 2098 which hold that a "mortgager" who has mortgaged its property to secure the repayment of the loan, stands on the same footing as and falls within the definition of a "borrower" and the amount due from him under the mortgage falls within the ambit of the expression, "amount due from him" in the second proviso to Section 18(1) of the SARFAESI Act.

20. Mr. Seksaria further submits that since the Petitioner has already availed its statutory remedy and filed the SA, that is pending before the DRT, this Court ought not to exercise its extra-ordinary writ jurisdiction, on grounds which are subject matter of the pending SA. He further submits that by the said amendment (sought in the two Applications), the Petitioner seeks to assail actions that had been taken by Respondent no. 1 Bank under Section 13 of the SARFAESI Act, each of which, constitutes a fresh cause of action under Section 17 thereof, and independently capable of being challenged by the Petitioner within the stipulated time of 45 days prescribed under Section 17(1) of the SARFAESI Act. Accordingly, he submits that it is entirely incorrect on the part of the Petitioner to contend that the amendments sought by it, in the two Applications filed before the DRT, only seek to place subsequent events on record and as such, are merely formal in nature. On the contrary, he contends that by such amendments, the Petitioner asserts a substantive right that is available to it and granted under Section 17 of the SARFAESI Act. On this ground also, Mr. Seksaria submits that the Petitioner's contention that the common order is a mere procedural one and not one that deals with the substantive rights of the Petitioner, is incorrect and ought not to be accepted by this Court.

21. Without prejudice to the aforesaid submissions, Mr. Seksaria submits that if it is contented by the Petitioner that the common order rejecting its two Applications is merely a procedural order, then no appeal thereto, would be maintainable under Section 18 of the SARFAESI Act. He contends that since procedural orders do not affect the rights or liabilities of a party, it is settled law that they do not fall within the ambit of ‘any order’ / ‘every order’ such as orders regarding summoning of witnesses, discovery, production, inspection of documents, fixing of date of hearing etc. which orders are merely steps towards the final adjudication and regulate the procedure alone, without affecting any rights or liabilities of a party. He therefore submits that no reliefs ought to be granted in the present Writ Petition and instead, the same should to be dismissed.

SUBMISSIONS OF RESPONDENT NO. 5

22. Mr. Nitin Thakker, learned Senior Counsel appears on behalf of Respondent No. 5 who is the Auction Purchaser of the said property. He submits that his client has purchased the said property for a sum of Rs. 232 crores and relies on the registered Sale Certificate dated 24th December 2019 issued by Respondent no. 1 Bank in his client's favour. He further states that since then, his client, in turn, has entered into a Development Agreement dated 2nd February 2023 with Respondent No. 6 for further development of the said property. He supports the submissions already advanced by Mr. Seksaria on the interpretation of Section 18 of the SARFAESI Act and adds that even as per the Black's Law dictionary and the Meriam Webster's dictionary, the word, "any" is interpreted to mean "all" and "every". He also relies on the decision of the Supreme Court in Lucknow Development Authority Vs. M.K. Gupta reported in (1994) 1 SCC 243 and of this Court in Man Global Ltd., Mumbai Vs. Ram Prakash Jookani reported in 2023 SCC Online Bom 600 and submits that it has been held that the word, "any" has a diversity of meanings and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject matter of the statute.

23. Mr. Thakker further submits that on a plain reading of the language of Section 18 of the SARFAESI Act, “any order” that is challenged, attracts the mandatory pre-deposit and when the statute is clear and unambiguous, its provisions cannot be read to be given a different meaning, so as to change the very intention of legislature. In that connection, he relies on the decisions of the Supreme Court in Ansal Properties and Industries Ltd. Vs. State of Haryana & Anr. reported in (2009) 3 SCC 553, Satheedevi Vs. Prasanna & Anr. reported in (2010) 5 SCC 622 and United India Insurance Co. Ltd. v. M/s. Orient Treasures Pvt. Ltd. reported in (2016) 3 SCC 49.

24. Mr. Thakker also submits that the language of Section 18(1) of the SARFAESI Act makes it abundantly clear that the expression "any order" therein encompasses both, final and interlocutory orders and the same cannot be distinguished on the basis of whether the order appealed against is a procedural one or a final one, as there is no distinguishment thereof under the SARFAESI Act. He submits that in light of the statutory scheme and intent of legislation while incorporating the Act, as well as the consistent Judicial interpretation by various courts, the phrase "any order" used in Section 18(1) is broad, unqualified and purposive and encompasses all orders i.e. final, interlocutory, procedural, or ancillary that may be passed by the DRT under Section 17 thereof. He submits that the intention of the pre-deposit under Section 18 is to deter frivolous appeals whilst ensuring seriousness from borrowers who seek to challenge orders passed by the DRT and thereby, balance the rights by streamlining debt recovery for the secured creditors by requiring deposit of 50% of the debt due (including interest) before appealing to the DRAT. He submits that this provision acts as a filter, preventing baseless challenges to legitimate recovery actions. He argues that the legislature, in employing the phrase “any order” has deliberately chosen to confer a wide appellate jurisdiction upon the DRAT so that no aggrieved person is left without recourse against orders passed by the DRT. He submits that a plain literal interpretation of the provision leaves no scope for judicial limitation or reading down the said provision and submits that no interference is warranted to the impugned order, and the present Writ Petition is therefore required be dismissed.

SUBMISSIONS OF RESPONDENT NO. 6

25. Mr. Venkatesh Dhond, learned Senior Counsel appears on behalf of Respondent No. 6, a developer with whom the Auction Purchaser, Defendant No.5 has entered into a subsequent Development Agreement for development of the said property. At the outset, he submits that since the Petitioner has itself chosen to file the Appeal under Section 18 of the SARFAESI Act, it is deemed to have accepted that the common order was one, passed under Section 17 thereof. He argues that having invoked the appellate jurisdiction of the DRAT under Section 18, the Petitioner cannot be permitted to now contend that the common order passed by the DRT is actually one falling outside the scope of “any order” contemplated therein and therefore, he contends that the Petitioner is not entitled to urge any of the contentions that have been argued by it, moreso when, the Petitioner did not invoke the writ jurisdiction of this Court in the first instance and consciously chose to instead file the Appeal before the DRAT. As a result, he argues that in this second round of proceedings, the Petitioner cannot be heard to recharacterize the common order, solely to evade the statutory pre-deposit.

26. Mr. Dhond submits that Section 18(1) of the SARFAESI Act confers a right of appeal on any person, including persons other than a borrower. However, he submits that whilst any person may have the locus to appeal, despite not being borrowers, the rigors of pre-deposit are not diluted inasmuch as, the second proviso to Section 18(1) uses the expression ‘borrower’ only to identify the person whose debt is required to be secured and therefore, whilst a third party may have locus to appeal, even in such an appeal, the ‘borrower’ must make the mandatory pre-deposit. He submits that such deposit can be by the ‘borrower’ itself or by someone, on behalf of the borrower, since the appeal is against an order passed under Section 17, which is a repository of provisions which enable ‘any person’ (including a borrower) to challenge measures taken under Section 13(4). Thus, Mr. Dhond submits that Section 17 remedy is anti-section 13 measure or an anti- recovery measure and therefore. a Section 17 relief stalls / defeats / delays an enforcement measure under Section 13 and consequently, any person seeking to stall or defeat such a measure is put on the same plane as a ‘borrower’ for the purposes of pre-deposit.

27. Mr. Dhond further submits that the pre-deposit mandated under Section 18 of the SARFAESI Act is debt-centric and is intrinsically linked to the outstanding debt due to the secured creditor, inasmuch as, it operates as a statutory safeguard to secure the debt pending the pendency of appellate proceedings. He submits that the legislature in its wisdom has consciously imposed this condition to ensure that a secured creditor, whose recovery process has already matured into enforceable measures, is not subjected to repeated and protracted litigation, without any security for the debt. He submits that the statutory insistence on a deposit of a percentage of the debt due, rather than the nature of the order appealed against, clearly demonstrates that the pre-deposit is intended to secure the creditor against delay and attrition and not merely to regulate procedure. He therefore submits that the common order is not a mere procedural order, as erroneously contented by the Petitioner.

28. Further, Mr. Dhond submits that as a direct consequence of the common order, the Petitioner's right to challenge the auction sale now stands extinguished and the auction purchaser's title stands crystallized and the challenge to the concluded statutory sale cannot survive in law. He therefore submits that such a determination, as done in the common order, is not a procedural one but is an adjudication on the very right of the Petitioner to litigate against the proposed party. To further substantiate, Mr. Dhond has painstakingly taken us through the common order and in particular, the several findings recorded and rendered therein, in an effort to persuade us that the same is a substantive ruling and not a mere procedural one.

29. Lastly, Mr. Dhond submits that even otherwise, if an amendment is substantially valid, courts may refuse to allow it, if it would cause injustice to the other side and it is not necessary for the purpose of determining the real controversy. In the present case, he submits that valid third party rights were created in favour of his client, as far back as in May 2023 and that too, under a Development Agreement (duly registered) pursuant to which, his client has paid the entire consideration of Rs. 150 crores to Respondent No. 5. He points out that the Petitioner has not been able to obtain any stay or injunction preventing the creation of such rights and as a result, his client has obtained these rights in a bona fide manner and in good faith. He further submits that, pursuant to the said Development Agreement, substantial third party rights have been crystallized and large financial commitments have since also been made and multiple home buyers have acquired enforceable contractual interests and any attempt to reopen the concluded sale at this stage, would gravely prejudice all these vested rights.

30. Mr. Dhond adds that the two Applications preferred by the Petitioner are nothing but a disguised attempt to blatantly open a concluded statutory sale, after recovery has been completed and sale proceeds have been received by the secured creditor. He submits that during this period, independent vested rights have been lawfully created in favour of his client, substantial redevelopment of the said property has been undertaken, significant financial investments have been made and agreements for sale have been executed with third party home buyers and as a result, he submits that grave injustice will be caused not only to his client but also to all the other third party buyers by allowing such an amendment.

31. In support of this submissions, Mr. Dhond tenders a statement providing details of the expenses incurred by this client for construction and development, the status of the construction and details of the sold / unsold units in the said property. For convenience, the said details are reproduced hereunder:

                   (i) Expenses incurred for construction and development of the project –