JUDGMENT :

L.NARAYANA SWAMY, J.

1. Assailing the impugned order dated 22.04.2019 passed by the Debt Recovery Appellate Tribunal, Chennai, on I.A.No.246/2019 in AIR No.(SA)77/2019.

2. Learned counsel for the petitioner-Company submits that the petitioner-Company was the previous owner of the property that is mortgaged by respondent Nos.2 to 5 and vide sale deeds dated 30.09.2014, the petitioner-Company sold the property to respondent Nos.2 to 5 herein.

3. It is the contention of petitioner-Company that under the sale deeds dated 30.09.2014, respondent Nos.2 to 5 who are the purchasers were due to pay the balance sale consideration to the petitioner-Company. When respondent No.1-Bank initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short 'SARFAESI Act') against respondent Nos.2 to 5, the petitioner-Company filed an application before the Debt Recovery Appellate Tribunal (for short the 'DRAT'). The application filed by the petitioner- Company came to be dismissed. Therefore, the petitioner-Company approached the DRAT. The Appellate Tribunal, while hearing I.A.No.246/2019 regarding waiver of pre-deposit, was of the opinion that the petitioner-Company is liable to pre-deposit 25% of the amount under Section 18 of the SARFAESI Act. Being aggrieved, the petitioner-Company is before this Court.

4. Learned counsel for the petitioner-Company relies upon two decisions. First is a decision of the Coordinate Bench of this Court in the case of Karnataka Industrial Areas Development Board, Bengaluru, Vs., UCO Bank, Bengaluru and Another (DB) and another is a judgment of the Division Bench of Delhi High Court in the case of Indiabulls Housing Finance Limited Vs., Vaibhav Jhawar and Others, 2019 2 KCCR 1447 in W.P.(C) 4237/2018, which was disposed of on 12.12.2018.

5. Learned counsel draws the attention of this Court to the discussion in the decision of Indiabulls Housing Finance Limited, wherein Section 18 and the definition of the term 'borrower' as found under Section 2(f) of the SARFAESI Act has been elaborately discussed. Similarly in case of Karnataka Industrial Areas Development Board (supra), a similar provision under Section 21 of the Recovery of Debts and Bankruptcy Act, 1993, fell for consideration.

6. Learned counsel for respondent No.1-Bank would submit that the petition has become infructuous in view of the fact that respondent No.1-Bank has auctioned the mortgaged property and third party rights have been created.

7. We have heard the learned counsels and perused the writ papers.

8. A plain reading of Section 18 of the SARFAESI Act and the definition of the term 'borrower' as found in Section 2(f) of the SARFAESI Act would clearly indicate that the term borrower includes a guarantor as well, but not a person other than the borrower/guarantor. The only interpretation that could be given to second proviso to Section 18(1) shall be that if a person other than borrower/guarantor files an appeal before the Arbitral Tribunal, then the stipulation of the pre-deposit of 50% (or 25%), as the case may be, of the amount of debt due from him as claimed by the secured creditors or determined by the DRT shall not be insisted upon.

9. It has been held that having regard to the said position of law, there is no ambiguity in the provision of Section 18 of the SARFAESI Act. The provision of Section 18 of the SARFAESI Act, are determinative of the fact that the legislature intended that it is only the 'borrower and guarantor', who should be under obligation to make the pre-deposit. The same is clear on a literal and grammatical meaning of the words "borrower" and "any person aggrieved" as found in Sections 18 and 2(f) of the SARFAESI Act. We are in respectful agreement with the opinion in the case of Indiabulls and KIADB (supra).

10. In the present case, it is clear that the petitioner-Company is not a borrower or guarantor. In that view of the matter, we proceed to all