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2024 Supreme(Online)(DRAT) 415
DEBT RECOVERY APPELLATE TRIBUNAL
Justice Rajesh Dayal Khare
SHRI ANIRUDH PRASAD SINGH AND ANR. – Appellant
Versus
CENTRAL BANK OF INDIA AND ORS. – Respondent
401/2019
Borrowers are jointly and severally liable for total debt; court fee must reflect total liability as per demand notice.
Headnote:(A) SARFAESI Act, 2002 - Section 13(2) - Court fee - Appellant contends that court fee has been deposited for the appeal against dismissal of S.A. No. 39 of 2019, asserting that the Bank clubbed amounts incorrectly while issuing notice - Respondent-Bank argues that the appellant remains liable for the total amount - Court directs payment of deficit court fee of Rs. 62,500/- within one month, failing which the appeal will be dismissed. (Paras 1, 3, 6, 9)
(B) Borrower Liability - Liability of borrowers, guarantors, and mortgagors is joint and several - Demand notice issued for total liability of Rs. 2,73,52,291/- as on 14.06.2016. (Paras 4, 5)
Facts of the case:
The appellants, as borrowers, created an equitable mortgage and guaranteed loans, but failed to repay, leading to issuance of a demand notice and subsequent sale of property.
Findings of Court:
Appellants must pay the full court fee as required by the Registry, with a deficit of Rs. 62,500/- directed to be deposited within a month.
Issues: Whether the court fee has been adequately paid and if the Bank's clubbing of amounts is valid.
Ratio Decidendi: The court emphasized that the total liability of borrowers is relevant for court fee, and the clubbing of amounts cannot be addressed at this stage.
Result: Appellants directed to pay deficit court fee.
Date of pronouncement: 25.10.2024
The present matter was heard and reserved for orders on the issue of court fee vide order dated 07.05.2024 of this Appellate Tribunal.
Learned counsel for the appellants submitted that he has already deposited the court fee, which was deposited before the Tribunal below and no further court fee is required, as two S.As. were filed, one against the Bank guarantee and another against the C.C. limit, but the respondent-Bank clubbing the amount of both the accounts issued notice under section 13(2) of the SARFAESI Act, which cannot be done, as the Bank guarantee could have been invoked and the appellant is even now ready to pay the amount of the Bank guarantee to the bank and that amount could not be clubbed while issuing notice under section 13(2) of the said Act, therefore, the requisite court fee as required under the law has already been deposited by the appellant and no further court fee is required to be deposited in the present case.
Learned counsel for the respondent-Bank contended that the appellant is Borrower and he cannot be escaped from his liability, which has already been taken by the appellant and for the same, notice under section 13(2) has been issued. The learned counsel further argued that a similar S.A. has been filed, but the borrower’s liability has not been refuted, therefore, the court fee on the entire amount is required to be paid.
Heaving heard the learned counsels for the parties and considering the material available on record, it is undisputed that the present appeal has been filed by the appellant-Borrower against the final order dated 04.11.2019, whereby the S.A. No. 39 of 2019 filed by the appellant has been dismissed.
The relevant fact is that the respondent no. 3 was granted some financial assistance through its partner including the appellant, to which father of Vinay Kumar stood as guarantor and on 27.03.2010, the appellant no. 1 as well as appellant no. 2 created an equitable mortgage by depositing of title deed and the appellant no. 2, father of Vinay Kumar had also executed letter of guarantee dated 30.11.2010 for Rs. 1.00 crore and also stood as guarantor/mortgagor to secure the Bank guarantee of Rs. 30.00 lacs given in favour of the respondent no. 3 by deposit of title deed of the property jointly in the name of appellant nos. 1 & 2 vide memorandum of deposit dated 27.03.2010 and the same was also extended in favour of the bank for Rs. 1.00 crore and also for Rs. 2.50 crores in addition of Rs. 30.00 lacs for Bank guarantee. The borrower did not repay the loan amount as per the agreement, therefore, the account was classified as NPA and the demand notice dated 14.06.2016 under section 13(2) for Rs. 2,73,52,291/- was issued to the borrowers. After issuance of possession notice and sale notice, the property was sold and sale certificate dated 24.08.2018 was issued in favour of the respondent no. 4.
The borrowers challenged the entire proceedings of the Bank before the Tribunal below by filing the S.A. No. 39/2019, which has been dismissed vide order impugned. Being aggrieved by the said order, the present appeal has been filed by the appellant.
The contention of the learned counsel for the appellant that the amount of Bank guarantee could not be clubbed together with the amount of other loan account by the Bank while issuing the aforesaid demand notice, cannot be dealt into by this Tribunal at this stage, because it relates to the merits of issuance of the demand notice.
It is admitted that the appellants are the borrowers and the liability of the borrowers, guarantors as well as mortgagors are joint and several. As per the demand notice, the total liability of the appellants is Rs. 2,73,52,291/- as on 14.06.2016. Thus, for the purpose of court fee, the said amount is relevant. Hence, the appellants are required to pay the full court fee as pointed out by the Registry. As per the scrutiny report, the appellants have already deposited court fee of Rs. 8500/- and
