Judgment :- (1.) LEAVE is granted to the petitioners Advocate-on-record to effect correction in the cause title of the petition by adding a party. (2.) VIRES of the second proviso to Section 18 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest act, 2002 (hereinafter the Act) has been questioned by the petitioner in this petition. (3.) SECTION 18 (1) of the Act is quoted hereunder : "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. " (4.) MR. Ghosh, learned Counsel for the petitioner, has advanced two-fold submissions. (5.) FIRSTLY, he submits that the second proviso to Section 18 of the Act refers to determination of the amount of debt due from the borrower by the debts Recovery Tribunal but Section 17 of the Act, which confers right on any person including the borrower to approach the Tribunal being aggrieved by the measures taken by the secured creditor or his authorized officer as is referred to in Section 13 (4) of the Act, does not provide for any machinery or system in relation to determination of the amount of debt due to the secured creditor from the borrower by the Tribunal and, therefore, the right to prefer appeal to the Appellate Tribunal under Section 18 is rendered illusory. (6.) NEXT, he has referred this Court to the decision of the Apex Court in Mardia Chemicals Limited v. Union of India reported in (2004)4 SCC 311 : (2004)2 WBLR (SC) 311 (paragraph 64) which is extracted below : "64. (6.) NEXT, he has referred this Court to the decision of the Apex Court in Mardia Chemicals Limited v. Union of India reported in (2004)4 SCC 311 : (2004)2 WBLR (SC) 311 (paragraph 64) which is extracted below : "64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet, (iii) the secured assets or their management with transferable interest is already taken over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v)75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution. " (7.) ACCORDING to him, two of the reasons for holding the condition relating to pre-deposit while filing an application under Section 17 of the Act as ultra vires are those mentioned in (iii) and (iv) of paragraph 64 (supra)which, even after amendments effected in Section 17 of the Act in the light of the decision in Mardia Chemicals Limited (supra), continue to exist when an aggrieved borrower chooses to exercise his right under Section 17 when measures are sought to be taken by the secured creditor in terms of Section 13 (4) of the Act and, therefore, to insist on a pre-deposit, as has been ordained in the second proviso to Section 18 (1), is arbitrary and unreasonable. (8.) THIS Court is unable to concur with Mr. Ghosh. (9.) MEASURES, which a secured creditor may take in terms of provisions contained in Section 13 (4) of the Act, are to be preceded by action in terms of section 13 (2) thereof. (8.) THIS Court is unable to concur with Mr. Ghosh. (9.) MEASURES, which a secured creditor may take in terms of provisions contained in Section 13 (4) of the Act, are to be preceded by action in terms of section 13 (2) thereof. Section 13 (2) of the Act contemplates issuance of a demand notice calling upon the borrower to discharge in full his liabilities to the secured creditor within sixty days from date of notice failing which rights under Section 13 (4) may be exercised by the secured creditor. Issuance of notice under Section 13 (2) has to be preceded by- (a) Default in repayment of secured debt or any instalment thereof by a borrower who is under a liability to a secured creditor under a security agreement; and (b) Classification of his account in respect of such debt by the secured creditor as non-performing asset. (10.) IN terms of Section 2 (o) of the Act, non-performing asset means an asset or account of a borrower which has been classified by a bank or financial institution as substandard, doubtful or loss asset,-in case such bank or financial institution is administered or regulated by any authority or body established, constituted or appointed by any law, for the time being in force, in accordance with the directions or guidelines relating to assets classifications issued by such authority or body, and in other cases, in accordance with the directions or guidelines relating to assets classifications issued by the Reserve bank. (11.) CLASSIFICATION of an account of a borrower as non-performing asset cannot be made except in accordance with the directions or guidelines of the nature mentioned above. (12.) SECTION 13 (3) (A) of the Act which has been introduced in the Act consequent to the decision of the Apex Court in Mardia Chemicals Limited (supra) entitles a borrower, on receipt of a notice under Section 13 (2) thereof, to make any representation or to raise any objection in response to the demand notice and if such representation/objection is received by the secured creditor, it is under an obligation to consider it and to assign reasons as to why such representation/objection is not acceptable or tenable, and the decision has to be communicated within a week of receipt thereof. The proviso to this sub section provides that communication of reasons shall not confer any right upon the borrower to prefer any application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under Section 17a. (13.) RECOURSE to measures under Section 13 (4) of the Act may be had by the secured creditor if the borrower fails to discharge his liability in full within the period specified the notice under section 13 (2) thereof. If the borrower takes recourse to any of the measures specified in clauses (a) to (d) of sub-section 4 of Section 13, the right of a borrower as also any other person aggrieved by the actions taken by the secured creditor or his authorized officer to make an application before the Debts Recovery Tribunal having jurisdiction, within 45 days from date the measures are taken, crystallizes. In terms of sub section (2) of Section 17 of the Act, the Debts Recovery Tribunal is empowered to decide as to whether any of the measures referred to in Section 13 (4) taken by the secured creditor for enforcement of security interest is in accordance with the provisions of the Act and the Rules made there under or not. Sub section (3) of Section 17 confers power on the Debts Recovery Tribunal to declare measures taken by the secured creditor under sub-section (4) of Section 13 as invalid and to restore possession of the secured assets to the borrower or to restore the management of the secured assets to the borrower, as the case may be, as well as to pass such order as it may consider appropriate and necessary. The Debts Recovery Tribunal in terms of provisions contained in section 17 (4) is authorized to declare recourse taken by a secured creditor under sub-section (4) of Section 13 to be in accordance with the provisions of the Act and the Rules made there under. (14.) THE legislature having conferred power on the Debts Recovery tribunal to decide as to whether measure (s) taken by the secured creditor in terms of Section 13 (4) of the Act is/are in accordance with the provisions of the Act or not, it necessarily has to decide whether pre-conditions for issuance of notice under Section 13 (2) existed or not. That would involve a determination as to whether there has been default on the part of the borrower to repay the secured debt or not and further, as to whether classification of the account as non-performing asset has been made in accordance with the directions or guidelines as referred to in Section 2 (o) of the Act or not. If the Debts Recovery tribunal is satisfied that recourse has been taken to measures specified in section 13 (4) of the Act not in accordance with the provisions contained in sections 13 (2) read with 2 (o) of the Act, it has the authority to declare the action of the secured creditor as invalid. At the same time, the Debts Recovery tribunal may in a given situation find no fault and uphold the action of the secured creditor. Also, in the exercise of power conferred by Section 17 of the act, the Debts Recovery Tribunal may uphold partially the action of the secured creditor by pronouncing that amount "x" is not the correct computation of liability, but it is "x - y" which is the liability. That would amount to determination of the exact amount of debt due and payable by the borrower. (15.) IN paragraph 81 of the decision in Mardia Chemicals Limited (supra) the Apex Court held that the borrower would get a reasonably fair deal and an opportunity to get the matter adjudicated upon before the Debts Recovery tribunal and merely because the provisions of the Act may be a bit harsh, but that cannot be a ground for holding the Act to be unconstitutional. (16.) THE constitutional validity of amended Section 17 of the Act was questioned before the Madras High Court in Misons Leathers Ltd. v. Canara bank, MR 2007 Mad 268. While repelling the challenge, the Division Bench ruled as follows : "10. We are afraid that the contention is totally misconceived. The provisions of Section 17 (1) of the Act provides remedy for the borrower/ guarantor /mortgagor to challenge the action of the Bank under Section 13 (4) of the Act before the Debt Recovery Tribunal. The Debt Recovery tribunal is required to decide whether the action of the Bank/financial institutions, under Section 13 (4) is in accordance with the provisions of the Act and the rules framed there under. The Debt Recovery tribunal is required to decide whether the action of the Bank/financial institutions, under Section 13 (4) is in accordance with the provisions of the Act and the rules framed there under. It is open to the borrower/ guarantor/mortgagor to demonstrate before the Debt Recovery Tribunal that resort to Section 13 of the Act is not permissible by law. In a given case, the claim of the Bank/financial Institutions may be barred by limitation or there may be cases, where the adjustment of the amount paid is not reflected in the notice or the calculation of interest may not be in accordance with the contract between the parties. Needless to say that all such grounds, which render the action of the Bank/financial institutions illegal can be raised in the proceedings under Section 17 of the Act before the Debt Recovery Tribunal". (17.) THIS Court is in respectful agreement with the aforesaid views. (18.) THEREFORE, the first contention of Mr. Ghosh that Section 17 of the act is silent with regard to determination of the quantum of debt is thoroughly misconceived. It is overruled accordingly. (19.) THE second and final contention raised by him is also without merit. The Act, as it originally stood, required a pre-deposit for approaching the Debts recovery Tribunal under Section 17 being the adjudicating authority of the first instance, not in appeal, and without there being a determination of the quantum of debt. In the considered view of the Apex Court, as reflected in mardia Chemicals Limited (supra), the condition relating to deposit of 75% of the amount claimed by the secured creditor before a petition under Section 17 of the Act could be entertained was oppressive, onerous and an arbitrary condition against all canons of reasonableness. (20.) UNREASONABLE, oppressive and onerous provisions in the Act have since been remedied by effecting amendments. As has been noticed supra, an aggrieved borrower now has the opportunity of the claims and counter-claims being decided by the Debts Recovery Tribunal at the first tier and a provision for appeal against the order passed by the Debts Recovery Tribunal has also been provided, but as a pre-condition therefor, the aggrieved appellant has to deposit 50% of the amount claimed by the secured creditor or determined by the Debts Recovery Tribunal, whichever is less. (21.) THE condition regarding pre-deposit cannot be contended to be oppressive or unreasonable. (21.) THE condition regarding pre-deposit cannot be contended to be oppressive or unreasonable. In several decisions of the Apex Court which have been noted in Mardia Chemicals Limited (supra), such condition has been upheld. The reasons for upholding such condition is that right of an appeal is a creature of the statute and while granting the right, the legislature is empowered to impose conditions for regulating such right and so long the pre-deposit condition does not amount to an unreasonable restriction on the prospective appellants right thereby rendering it almost illusory, the Courts have held the condition regarding pre-deposit to be reasonable and within the legislatures competence of enacting laws. True it is that points mentioned in (iii) and (iv) of paragraph 64 of the decision in Mardia Chemicals Limited (supra)were two of the grounds for which the condition of pre-deposit was declared to be bad, but at the same time one cannot lose sight of the fact that declaring the condition of pre-deposit in original Section 17 of the Act as unreasonable was based on the cumulative effect of all six grounds mentioned in paragraph 64 of which grounds (i) and (ii) were the vital ones, as would appear from a reading of the entire judgment. The Apex Court frowned upon the requirement of deposit of such a heavy amount (75% of the demand made by the secured creditor) on the basis of a one-sided claim alone at the first instance itself before start of adjudication of the dispute. (22.) THE Act has been enacted to ensure speedy recovery of debts and to empower secured creditors to take possession of the secured assets and to deal with the same without Courts intervention. The banks and the financial institutions deal with public money. A borrower having availed credit facilities/ loans/advances from such banks and financial institutions must work out his economics before securing such facility. Due care and caution must be taken to prevent a situation where the borrower finds himself unable to repay. There may be genuine cases of hardship. That seems to be one of the reasons to empower the Appellate Tribunal to reduce the quantum towards pre-deposit in a fit and proper case. Due care and caution must be taken to prevent a situation where the borrower finds himself unable to repay. There may be genuine cases of hardship. That seems to be one of the reasons to empower the Appellate Tribunal to reduce the quantum towards pre-deposit in a fit and proper case. (23.) CONSEQUENT to amendment of the Act in view of the decision in mardia Chemicals (supra), sufficient checks and balances have been introduced and a borrower is no longer without any remedy as at the time when the Act was originally enacted. He can now have a determination on all points by the Tribunal which can validly be raised in the objection to the Section 13 (2) notice including as to whether taking over of possession of the secured assets by the Bank/financial institutions is in accordance with the provisions of the Act and the Rules framed there under or not. Unless condition relating to pre-deposit is introduced, appeals would be filed before the Appellate Tribunal in numbers by recalcitrant borrowers. The condition regarding pre-deposit could act as a filter for screening out frivolous claims. (24.) IN the considered view of this Court, the condition is not so onerous or oppressive or arbitrary or unreasonable that the legislative wisdom has to be put to judicial scanner by entertaining this petition. (25.) FOR reasons discussed above, the writ petition stands dismissed. However, in the circumstances, the parties shall bear their own costs.