1. Heard Shri Vikram D. Chauhan, learned counsel for petitioners and Shri Krishna Mohan Ashthana for respondent No. 1.
2. Present petition has been filed assailing the order dated 10.01.2019 passed by the Debts Recovery Tribunal, Allahabad directing the petitioner to deposit fresh court fee in S.A. No. 907/2018 M/s. S.J. Ice and Cold Storage v. Canara Bank and others.
3. In nutshell, the case of petitioner is that it was extended loan by the respondent/Canara Bank in the year 2009.
4. Due to default in repayment, the loan was declared N.P.A. by the Bank in the year 2009.
5. Bank issued a demand notice on 26.05.2009, which was challenged before this Court in Writ No. 67330 of 2009. By order dated 21.12.2009, the bank was directed to take decision on the rehabilitation package submitted by the petitioner and till the decision was taken recovery proceedings was kept in abeyance.
6. The petitioner filed a Contempt Application (Civil) No. 6115 of 2010, which was disposed of by order dated 23.12.2010 directing the respondent-Bank to comply with the said directions.
7. According to the petitioner, an application under Section 14 of the SARFAESI Act, 2002 was moved by the Bank before the A.D.M.(F & R), Agra, who by order dated 12.07.2018 directed for taking over the possession of mortgage property.
8. Petitioner again approached this Court invoking contempt jurisdiction.
9. Court by order dated 30.11.2018 dismissed the Second Contempt Application (Civil) No. 6372 of 2018, on the ground that the Additional District Magistrate (Finance and Revenue)/Additional Collector, Agra has proceeded to pass orders under Section 14 pursuant to the proceedings under Section 13 (4) of the SARFAESI Act, and not under Section 13(2) of the Act.
10. Thereafter, petitioner filed a Securitization Application No. 556/2018 before the Debts Recovery Tribunal at Lucknow. The said application was dismissed by order dated 17.12.2018 on the ground that the same is not cognizable at Lucknow and the Securitization Application was returned to be presented before the Tribunal having territorial jurisdiction.
11. Petitioner thereafter filed the said Securitization Application before Debts Recovery Tribunal, Allahabad and the same was registered as S.A. No. 907 of 2018.
12. In the said application, petitioner not only challenged the order dated 12.07.2018 passed by the A.D.M. (F & R), Agra, but also sought relief for quashing the auction proceedings, pursuant to the publication in newspaper on 25.11.2018.
13. That according to the petitioner, while making the said application, he had paid the fees as prescribed under Rule 13(2) of the Security Interest (Enforcement) Rules, 2002. According to the petitioner, he had paid the maximum amount of fee payable i.e. Rs. 1,00,000/-.
14. The auction was to take place on 28.12.2018, but the same could not be held as no prospective buyer appeared and the Bank did not receive any bid. The bank thereafter fixed new auction date for 18.01.2019.
15. According to petitioner, he moved an application, I.A. No. 67/2019 seeking amendment for further auction and also moved an urgency application, I.A. No. 66/2019 before the D.R.T.
16. It was by order dated 10.01.2019 that the Tribunal allowed the amendment application of petitioner and permitted the petitioner to carry out the necessary amendments in his S.A. qua sale of property as well he was permitted to incorporate subsequent events in respect of physical possession of the property, subject to payment of fresh court fee for challenging the subsequent fresh cause of action. It is by this order dated 10th January, 2019 that the petitioner is aggrieved.
17. Shri Vikram D. Chauhan, counsel for the petitioner submits that the petitioner had already paid court fees according to Rule 13(2)(b) of the Security Interest (Enforcement) Rules, 2002, which was Rs. 1,00,000/-, which was in respect to the challenge of auction of the mortgage property.
18. He further contends that the auction, which was to take place on 28.12.2018 failed due to the fact that no prospective buyer appeared and it was only that a new date for auction was fixed for 18.01.2019 and he had sought amendment in respect of the fresh auction proceedings, but the property to be auctioned remained the same.
19. Shri Chauhan further submits that no extra relief has been claimed by the petitioner and the relief so sought by the petitioner is only in regard to quashing of the auction proceedings of the mortgage property.
20. Counsel for the petitioner further contends that the Securitization Rules, no where provides for the payment of fresh court fee or extra court fee in respect of any fresh cause of action.
21. He further contends that the petitioner is not seeking any new or extra relief and he has challenged only the auction proceedings initiated by the Bank, which had not taken place not due to his fault, but because no prospective bidder appeared on 28.12.2018 and the said cause of action is a recurring action, till the auction finally takes place.
22. Shri Chauhan has relied upon the provisions of Section 17 of the Court-fees Act. 1870. which is reproduced below:
"17. Multifarious suit.-Where a suit embraces two or more distinct subjects, the plain or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.
Nothing in the former part of this section shall be deemed to affect the power conferred by the Code of Civil Procedure, section 9."
23. According to Section 17, in case of two or more distinct subjects, the court fee will be chargeable with the aggregate amount of fees. He further contends that the Court Fee Act also does not provide for paying fresh court fee for the same relief claimed.
24. He has further relied upon a judgment of this Court in case of Nitangali Prints and others v. State Bank of India and others. In this case the court held as under.
"5. A reading of the plaint indicates that the suit was basically for recovery of the sum under loan together with interest. The plaint makes it clear in the same transaction in which the loan was granted to defendant Nos. 1 and 2, the other defendants stood guarantors for defendant Nos. 1 and 2, and their property was given in equitable mortgage as a security for the loan. The learned Court below rightly came to the conclusion that it was in fact only one relief that was sought for and the suit could not have been valued once for realisation of the loan amount from defendant Nos. 1 and 2 and once more for realisation of the sum from the guarantors. It is the established law that if the principal debtors pay the sum under demand then the guarantors will not be asked to pay again. The suit is not based on different causes of action but is for a single one and the reliefs are also not different as the sole relief is to realise the sum due. The approach of the court below cannot be stated to be a wrong one and the decision of issue No. 8 as arrived at by the court below cannot be interfered with."
25. Per contra, Shri Krishna Mohan Asthana, counsel appearing for the Bank contends that though Section 13(2)(b) of the Rules of 2002 provides for the maximum fee of Rs. 1,00,000/-. The petitioner is liable to pay the same afresh as new auction date had been fixed as 18.01.2019, which amounts to fresh cause of action and fresh relief and Debts Recovery Tribunal had rightly directed the petitioner by order dated 10.01.2019 to pay court fee afresh.
26. Shri Asthana, however, admits the fact that the Rules of 2002 are silent regarding the question of payment of fresh court fee in case the auction is not held or differed.
27. Having considered the rival submissions of the parties and going through the records of the case, it is no doubt true that the Security Interest (Enforcement) Rules, 2002 do not provide for any payment of fresh court fee or additional court fee.
28. It is only that when an applicant is a borrower approaches the Tribunal where the debts due is Rs. 10 lacks and above and in cases where the debt due is below 10 lacs that the amount of fee so payable has been described.
29. In order to appreciate the controversy provisions of Rule 13 of the 2002 are quoted as under:
"13. Fees for applications and appeals under sections 17 and 18 of the Act.-(1) Every application under sub-section (1) of section 17 or an appeal to the Appellate Tribunal under sub-section (1) of section 18 shall be accompanied by a fee provided in the sub-rule (2) and such fee may be remitted through a crossed demand draft drawn on a bank or Indian Postal Order in favour of the Registrar of the Tribunal or the Court as the case may be, payable at the place where the Tribunal or the Court is situated.
(2) The amount of fee payable shall be as follows:-
Nature of application
Amount of fee payable
Application to a Debts Recovery Tribunal under sub-section (1) of Section 17 against any of the measures referred to in sub-section (4) of Section 13
Where the applicant is a borrower and the amount of debt due is less than Rs 10 lakhs
Rs 500 for every Rs 1 lakh or part thereof
Where the applicant is a borrower and the amount of debt due is Rs 10 lakhs and above
Rs 5,000 + Rs 250 for every Rs 1 lakh or part thereof in excess of Rs 10 lakhs subject to a maximum of Rs 1,00,000
Where the applicant is an aggrieved party other than the borrower and where the amount of debt due is less than Rs 10 lakhs.
Rs 125 for every Rupees One lakh or part thereof.
Where the applicant is an aggrieved party other than the borrower and where the amount of debt due is Rs 10 lakhs and above
Rs 1,250 + Rs 125 for every Rs 1 lakh or part thereof in excess of Rs 10 lakhs subject to a maximum of Rs 50,000
Any other application by any person
Appeal to the Appellate Authority against any order passed by the Debts Recovery Tribunal under Section 17
Same fees as provided at Clauses (a) to (e) of serial number 1 of this Rule]
30. Rules 13(2)(b) is clear as far as the fee payable by the borrower is concerned, in case of the amount of debt due is more than Rs. 10 lacs, the maximum amount of fee payable is Rs. 1,00,000/-.
31. In the present case, the petitioner had already deposited Rs. 1,00,000/- with the Debts Recovery Tribunal, which is an undisputed fact.
32. Now, the question which arises for consideration is whether the Debts Recovery Tribunal was justified in demanding fresh court fee by order dated 10.01.2019.
33. It is an undisputed fact that the Bank had proceeded under the SARFAESI Act, 2002 by invoking provisions of Section 13(2) thereafter passing order under Section 13(4) and ultimately getting the possession of the property mortgaged after the order was passed under Section 14 by the A.D.M. (F & R), Agra. After the Bank had taken the possession, it proceeded to auction the property in question.
34. 28.12.2018 was the date fixed for auction and no prospective buyer appeared on the said date and the date of auction was again fixed for 18.01.2019.
35. Petitioner had not only challenged the order passed under Section 14, but also the auction proceedings by the Bank. As me court fee payable was on the application of petitioner for the relief so claimed, it hardly matters when the auction takes place.
36. The Tribunal was not correct to hold that in view of the amendment sought by the petitioner for challenging the fresh auction, he was required to pay court fees again.
37. The Apex Court in case of Lakshmi Ammal v. K.M. Madhavakrishnan and others : (1978) 4 SCC 15 : (AIR 1978 SC 1607), had occasioned to consider the court fee payable in case of conflict and doubt. The Apex Court held as under:-
"It is unfortunate that long years have been spent by the courts below on a combat between two parties on the question of court fee leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, the court fee, if it seriously restricts the rights of a person to seek his remedies in courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable, of course the benefit must go to him who says that the lesser court fee alone be paid."
38. Thus, the view taken by the Apex Court that in case where there is doubt as to the payment of court fee, the benefit should be given to the lesser court fee to be paid.
39. In the present cas
e, Rules of 2002 clearly provides for the maximum amount of fee payable, in case where a borrower approaches the Tribunal and the same having been paid, no further court fee is required to be paid as well as when the Rules are not clear on the issue whether on any subsequent event any further court fee is required then in view of judgment in case of Lakshmi Ammal (AIR 1978 SC 1607) (supra) would apply. 40. More so, auction for sale of mortgage property is a recurring phenomena till the auction finally takes place and the view taken by the Tribunal cannot be justified on any count for payment of subsequent court fee on every date so fixed for auction, if the earlier auction fails. 41. Argument of counsel for the Bank is fallacious to the extent that it is a fresh cause of action and situation being so, the petitioner is required to pay court fees afresh. As the bank, who is making endeavour to sell the mortgage property in auction, cannot support the order of the Tribunal for the payment of fresh court fee as the borrower/debtor is only challenging the auction proceedings and every new date so fixed would not amount to fresh cause of action. 42. In view of the above, I cannot uphold the view taken by the Tribunal nor accept the argument of the counsel for the Bank and the order dated 10.01.2019 directing for the payment of court fee is set aside to this extent and the Tribunal is directed to proceed with the amended application of the petitioner without insisting for any fresh court fee. 43. In view of the above, writ petition stands allowed.