DILIP GUPTA, J. - (1.) THE petitioner as the guarantor and mortgagor of the loan taken by Hyper Chemicals & Cosmetics Pvt. Ltd. from the Kanpur Branch of the State Bank of Patiala (hereinafter referred to as the 'Bank') and against whom proceedings under Section 13 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'Act') were initiated by the respondent-Bank, has filed this petition for quashing the order dated 14th July, 2011 passed by the Debts Recovery Appellate Tribunal, Allahabad (hereinafter referred to as the 'Appellate Tribunal') by which the appeal filed by the petitioner under Section 18 of the Act against the order dated 11th April, 2011 passed by the Debts Recovery Tribunal Allahabad (hereinafter referred to as the 'Tribunal') was dismissed for the reason that the requisite Court fee was not deposited and for the reason that the petitioner had not deposited 50% of the amount of debt due as required under the second proviso to Section 18(1) of the Act. Further relief that has been claimed in this petition is for a direction upon the Appellate Tribunal to decide the appeal filed by the petitioner on merits without requiring the petitioner to make any further payment of Court fee or deposit any amount under the second proviso to Section 18(1) of the Act. It is stated that the Bank had filed Original Suit No.549 of 1996 against Hyper Chemicals & Cosmetics Pvt. Ltd. & Ors., (principal borrowers) and the guarantors/mortgagors on 16th May, 1996 for recovery of dues to the extent of Rs.13,89,430/-. The petitioner was impleaded as a defendant in the said suit in the capacity of a guarantor and mortgagor of his half share in the House No.2797, Chirkhana, Gali Matawali, Chandani Chowk, Delhi. The suit was filed by the Bank with the allegation that equitable mortgage of the said property was created by the petitioner by depositing the title deeds on 15th February, 1992. The said suit was subsequently transferred to the Tribunal and was renumbered as T.A. 507 of 2000. The defendants filed a counter claim/set off, but the Tribunal by the judgment dated 18th February, 2003 allowed the claim of the Bank in full and dismissed the counter claim/set off. This judgment of the Tribunal was challenged by the defendants in an appeal before the Appellate Tribunal which remanded the case back to the Tribunal for fresh adjudication with liberty to the parties to adduce additional evidence. This order of remand was challenged by the defendants in Writ Petition No.18606 of 2004 in which further proceedings before the Tribunal were stayed by the order dated 17th May, 2006, and the interim order is said to be operating till date.
(2.) IT is further stated that thereafter the Bank initiated proceedings against the petitioner by issuing a notice dated 10th May, 2007 under Section 13(2) of the Act by which the petitioner was called upon to discharge the dues of the Bank aggregating to Rs.1,19,56,663.67/- within sixty days from the date of receipt of the notice. The petitioner sent a reply denying his liability to pay the amount. The objections were, however, rejected by the Bank by the order dated 2nd June, 2007 and thereafter the petitioner received a notice captioned 'Possession Notice' dated 13th March, 2008. The petitioner sent a reply dated 10th April, 2008 inter alia pointing out that the notice did not specify the date on which the alleged possession was taken or would be taken and nor was the notice affixed at the outer door or at any other conspicuous place of the house in question and nor it was published in two newspapers having circulation in the locality. When no reply was received from the Bank, the petitioner believed that the Bank had dropped the proceedings but by way of abundant caution sought information from the Bank under the Right to Information Act on 12th March, 2010. The Bank supplied information dated 15th April, 2010 to the petitioner that a composite possession notice covering 11 properties of different borrowers was published in the Kanpur Editions of Pioneer and Swatantra Bharat on 18 th February, 2009 in which the property of the petitioner was shown at Serial No.11 and reference to the earlier possession notice dated 13th March, 2008 was made. The petitioner, thereafter, filed an application under Section 17 (1) of the Act before the Tribunal on 31st May, 2010 to challenge the measures taken by the Bank which application was numbered as S.A. 68 of 2010. In the said application the petitioner asserted that the application had been filed within the limitation period of 45 days from the date of knowledge of the measures taken by the Bank but by way of abundant caution, the petitioner also filed an application under Section 5 of the Limitation Act 1963 (hereinafter referred to as the 'Limitation Act') for condoning the delay, if any, in filing the application. This delay condonation application was accompanied by an affidavit. The Tribunal, however, dismissed the application filed under Section 5 of the Limitation Act on 11th April, 2011 and consequently the application filed by the petitioner under Section 17(1) of the Act was also dismissed. This order dated 11th April, 2011 passed by the Tribunal was assailed by the petitioner in Writ Petition No. 27545 of 2011. The petition was dismissed by the Court on 12th May, 2011 with the observation that the petitioner could file an appeal under Section 18 of the Act. The petitioner then filed an appeal before the Appellate Tribunal under Section 18 of the Act for setting aside the order dated 11th April, 2011 passed by the Tribunal. The appeal was dismissed by the Appellate Tribunal by the judgment dated 14th July, 2011 for the reason that the petitioner did not pay the requisite Court fees of Rs.32,300/- and for the reason that the petitioner had not deposited 50% of the amount of debt due as claimed by the Bank as was required to be deposited under the second proviso to Section 18(1) of the Act. Sri R.P. Agarwal, learned counsel appearing for the petitioner submitted that the Appellate Tribunal committed an illegality in dismissing the appeal for the aforesaid two reasons. Learned counsel submitted that the appeal had been filed against the order passed by the Tribunal on the application filed by the petitioner under Section 5 of the Limitation Act for condoning the delay in filing the application under Section 17(1) of the Act and, therefore, the Court fees of Rs.200/- only as contemplated under Rule 13(2)(1)(e) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the 'Rules') was required to be paid which was paid and the appellant was not required to deposit the Court fees contemplated under Rule 13(2)(1)(d) of the Rules. Learned counsel has pointed out that under Rule13(2)(2) of the Rules, the amount of fee payable in an appeal against any order passed by the Tribunal is the same fees as provided at Clauses (a) to (e) of Rule 2(2)(1) of the Rules and, therefore, the fees provided for at Serial No 1(e) of Rs.200/- for 'any other application' was required to be paid as the appellant was actually aggrieved by the order passed on the delay condonation application and the order dismissing the application under Section 17(1) of the Act was only a consequential order as the delay condonation application had been rejected. In support of his contention, learned counsel for the petitioner placed reliance on a decision of the Kerala High Court in Mohd. Fariz & Co. Vs. Commissioner of Central Excise 2010 (260) ELT-29 (Ker).
(3.) LEARNED counsel for the petitioner also submitted that the condition of pre-deposit under the second proviso to Section 18(1) of the Act would be applicable only when an order is passed on the application filed under Section 17(1) of the Act and not when it is passed on 'any other application' as the pre-deposit under the said proviso is linked to amount of debt due from the borrower as claimed by the secured creditor or determined by the Tribunal, whichever is less and likewise the fee payable under Rule 13 is linked to 'debt due' while fee for 'any other application' is fixed at Rs.200/-. Learned counsel for the petitioner, therefore, submitted that the requirement of pre-deposit under the second proviso to Section 18(1) of the Act will not apply to all appeals filed under Section 18, but only to the appeals filed against a final order and not against an interim order. In this connection, learned counsel pointed out that, if the condition of pre-deposit under the second proviso to Section 18(1) of the Act is held to apply even when the Tribunal has not determined the debt due then it would be hit by Article 14 of the Constitution of India as being arbitrary, onerous and expropriatory in view of the decision of the Supreme Court in Mardia Chemicals Ltd. etc. etc. Vs. Union of India & Ors., AIR 2004 SC 2371. Learned counsel for the petitioner also submitted that the possession notice dated 13th March, 2008 was patently illegal as it did not specify the date when possession was taken and nor was it affixed at the outer door of such conspicuous place of the property as provided for under Rule 8(1) of the Rules. He also pointed out that the notice was not published in two newspapers within the stipulated period of seven days as provided for under Rule 8(2) of the Rules and in support of his contention, reliance was placed on the decision of the Division Bench of the Karnataka High Court in K.R. Krishnegowda & Anr. Vs. The Chief Manager/Authorised Officer, Kotak Mahindra Bank reported in 2012 (2) D.R.T.C. 684 (Knt.).;