The main legal point established is the determination of court fees payable under the SARFAESI Act and the relevant rules, based on the definition of 'debt' as per the applicable laws.

ORDER :

1. Heard learned advocate Mr. Devang Lathigara for the petitioner and learned advocate Mr. J.R.Shah for respondent No.2.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

“A. That this Hon’ble Court may be pleased to issue a writ of mandamus or any other writ, order or direction to quash and set aside the notice at Annexure F to this petition by which the respondent Bank took the possession of the petitioners property declaring the same as illegal, void and violative of the fundamental rights.

B. Pending the hearing and final disposal of this petition this Hon’ble Court may be pleased to restrain the respondent No.2 bank from proceeding further pursuant to the notice at Annexure F by an appropriate writ, order or direction.

C. The Registry of DRT may be directed to accept the appeal under section 17 of the SARFESAI Act, and the Registry may not insist for court fees as required to be paid by the borrower since the petitioner is neither borrower nor guarantor and only fees qua equivalent to be value of the flat by the petitioner may be insisted.”

3. Brief facts of the case are as under:

3.1 The petitioner, who is a resident of village-Jetpur, District-Rajkot, purchased a flat by paying a full consideration to respondent No.1.

3.2 It is the case of the petitioner that the petitioner has obtained financial assistance from respondent No.2. Therefore, respondent No.2 initiated the proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [‘SARFAESI Act’ for short]. The petitioner, being aggrieved by the initiation of the proceedings, preferred Securitization Application before the Debt Recovery Tribunal under section 17 of the SARFAESI Act.

3.3 It is the case of the petitioner that the petitioner is not liable to pay the Court fees on the entire amount claimed by respondent No.2-Bank but the petitioner is liable to pay the Court fees to the Tribunal only with regard to the amount of valuation of the flat which is purchased by the petitioner.

4. Learned advocate Mr.Lathigara for the petitioner submitted that the petitioner is ready and willing to pay the Court fees as per the valuation of the flat and on payment of such fees, the Securitization Application filed by the petitioner is required to be registered by the Tribunal.

5. On the other hand, learned advocate Mr. Shah appearing for respondent No.2-Bank relied upon Rule 13 of the Security Interest (Enforcement) Rules, 2002 [for short ‘Rules,2002’] which prescribes the schedule of fees payable and submitted that as per clause (d) of sub-section (2) of section 13, the petitioner is liable to pay the Court fee of Rs. 50,000/- on the application under section 17 of the SARFAESI Act.

6. It was submitted that the respondent-Bank has to recover the secured amount of Rs. 4 crore from the borrower.

7. Considering the above submissions, it would be germane to refer to the Rule 13 of the Rules, 2002 which reads 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: