CWP No. 4113 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 4113 of 2011 Date of Decision: 30.11.2011 M/s Knitwell Fashions ...Petitioner Versus Union of India and others ..Respondents CORAM: Hon'ble Mr. Justice Hemant Gupta Hon'ble Mr. Justice G.S. Sandhawalia Present: Mr. Sunil Chadha, Advocate for the petitioner. Mr. Yogesh Jain, Advocate for the respondents. Hemant Gupta, J. Challenge in the present writ petition is to the order passed by the Debts Recovery Appellate Tribunal (for short `Tribunal') on 31.1.2011 and 24.2.2011 whereby the petitioner has been directed to affix court fee in terms of Rule 13(2)(d) of the Security Interest (Enforcement) Rules 2002 (for short `the Rules'). The Bank sent a notice for sale of the property of the defaulter on 15.5.2010 whereby 18.6.2010 was the date fixed for auction. The reserve price of the property to be sold fixed as 2.43 Crores. The petitioner is the highest bidder having given bid of Rs.2.44 Crores. The petitioner deposited Rs.61 lacs as earnest money. An application was filed by respondent No.4 under Section 17 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short `the Act') asserting that he is ready and willing to purchase the property put to auction on 18.6.2010 in the sum of Rs.2.70 Crores. The petitioner filed a CWP No. 4113 of 2011 -2- miscellaneous application to withdraw Rs.61 lacs which were deposited at the time of auction when such application was pending. Subsequently the application of respondent No.4 intending to purchase the property in the sum of Rs.2.70 Crores was dismissed on 29.10.2010 along with application filed by the petitioner for a refund of Rs.61 lacs by the Debts Recovery Tribunal. Aggrieved against the said order passed by the Debts Recovery Tribunal on 29.10.2010, the petitioner, respondent No.4 and the Bank filed separate appeals. The Tribunal raised an objection that the Court fee of Rs.200/- fixed on the memorandum of appeal by the petitioner is deficient as the proper court fee is under Rule 13(2)(d) of the Rules. To such effect the order was passed on 31.1.2011 Annexure P- 4. The petitioner deposited another sum of Rs.8,875/- but still it was found to be deficient as the requisite court fee was said to be Rs.21625/-. Therefore, the petitioner was called upon to make up the deficient court fee vide order Annexure P-5. It is the said order which is subject matter of challenge in the present writ petition. Rule 13 of the Rules deals with the fee for applications in appeals under Section 17 and 18 of the Act. Though Section 18 of the Act provides for different fee payable by any person or a borrower for the purpose of appeal but it is Rule 13 of the Rules which deals with the amount of court fee payable on an application before the Tribunal under Section 17 and/or in appeal under Section 18 of the Act by any person or by a borrower. Relevant Rule reads as under : “13. Fees for applications and appeal under section 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 CWP No. 4113 of 2011 -3- fee may be remitted through a crossed demand draft drawn on a bank or India 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:- No. Nature of application Amount of fee payable 1 Application to a Debt Recovery Tribunal under sub- section (1) of Section 17 against any of the measures referred to in sub-section (4) of section 13. (a) 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 (b) Where the applicant is a borrower and the amount of debt due is Rs.10 lakhs and above. Rs.5000 + 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 (c) 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. (d) 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.1250 + Rs.125 for every Rs.1 lakh or part thereof in excess of Rs.10 lakhs subject to a maximum of Rs.50,000/- (e) Any other application by any person Rs.200 2 Appeal to the appellate Authority against any order passed by the Debt Recovery Tribunal under Section 17 Same fees as provided at Clauses (a) to (e) of serial number 1 of this rule. Learned counsel for the petitioner has contended that the miscellaneous application filed by the petitioner attracts court fees under Clause (e) of the Sub Rule 2 of Rule 13 whereas the Tribunal has returned a finding that court fee is payable under Rule 13(2)(d). A perusal of the Sub Clause (1) of the said rule would show that different situations for affixing court fee are contemplated when an application to a Debt Recovery Tribunal is filed. Clause (d) deals with the court fee when the applicant is an aggrieved party other than the borrower. An aggrieved party would be aggrieved party against the action of the Bank and not where applicant CWP No. 4113 of 2011 -4- seeks relief other than claimed by the Bank. Since the petitioner has not aggrieved by any action of the Bank, the court fee payable by petitioner would fall under Rule 13(2)(e) of the Rules only. Such is the view taken by Division Bench of Delhi High Court in CWP No. 520 of 2009 titled as Naresh Kumar Mittal Vs. State Bank of India and others. The relevant part reads as under: “It is also important to note that S.No.1(e) of the table pertains to any other application by any person and the fee prescribed for it is Rs.200/-. This, as we have already pointed above, is in the nature of a residuary clause and would cover every application other than those specified at S.Nos.1(a), (b), (c) and (d). It is obvious that the appeals could arise from applications which fall under S.No.1 (e) and it is for this reason that the S.No.2 of the table specifies the fee of the appeals to be the same fees as provided at clauses (a) to (e) of S.No.1 of the said table. In other words, if the appeal arises out of an application which falls under S.No.1(a), then the same fee as prescribed under S.No.1(a) would apply to the appeal. Consequently, by the same logic, if an appeal were to arise out of an application falling under S.No.1(e), it would be the same fee as that prescribed for that application, which is Rs.200/-. In view of the above, we find that the orders passed by the Tribunal Annexure P-4 and P-5 are not sustainable. Consequently, the same are set aside. Dismissed. ( Hemant Gupta ) Judge (G.S. Sandhawalia) 30.11.2011 Judge Meenu CWP No. 4113 of 2011 -5- The petitioner who is not a borrower but the auction purchaser. He has fixed court fee of Rs.200/- before the Debt Tribunal in view of the fact that he is neither an aggrieved party nor a borrower. It is the said Court fee which is payable in appeal as well.