Debt Recovery Appellate Tribunal - Delhi
A.K. Bhardwaj And Ors. vs Icici And Ors. on 19 May, 2006
Equivalent citations: III(2006)BC187
ORDER
Motilal B. Naik, J. (Chairman)
1. This appeal is against an order made in LA. 534/2001 by the DRT-I, Delhi on 16.9.2002.
2. When this appeal was taken up for consideration, Registry pointed out that as required under Rule 8 of the Debts Recovery Appellate Tribunal (Procedure) Rules, 1994 (hereinafter referred to as 'the DRAT Rules'), the requisite Court-fees has not been paid by the appellant, and, therefore, the appeal cannot be entertained without payment of requisite Court-fees. It is noticed that the appellant has paid a Court-fees of Rs. 10/- only. It is also noticed that prior to the amendment to the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as 'the DRT Rules'), which came into effect from 21.1.2003, when an appeal is filed before this Tribunal under Section 20 against an order passed by the Tribunal below in a Miscellaneous Application, a Court-fees of Rs. 10/- used to be collected by the Registry of this Tribunal. However, pursuant to the amendment, as indicated above, the Registry started to collect Rs. 250/- towards Court-fees. This has led to lot of confusion as to the Court-fees to be paid when an appeal is filed before this Tribunal against an order passed by the Tribunal below in a miscellaneous application. In order to set at rest the controversy, this Tribunal made an endeavour, inviting the members of the Bar to address on this aspect. On behalf of the Bar, Mr. Rajeeve Mehra, Mr. M.C. Kochhar, Mr. S.L. Gupta, Mr. Shailen Bhatia, Mr. R.K. Trakru and Mr. Mukul Chandra and a few other Advocates advanced their viewpoints.
3. It is submitted by Mr. Rajeeve Mehra, Mr. S.L. Gupta, Mr. M.C. Kochhar and others who mostly represent non-financial institutions/Banks, that though under Rule 8 of the DRAT Rules fees is required to be paid on the basis of amount of debt due, when the claim made by the financial institution/Bank is pending adjudication before the Tribunal below, if an order passed by the Tribunal below on an interlocutory matter is challenged before this Tribunal, Court-fees of only Rs. 250/- need be paid, which is under the provisions of the DRT Rules. Counsel stated that in the absence of any determination, where debt due is not determined, insistence of Court-fees in terms of Rule 8 of the DRAT Rules is unwarranted. Counsel also drew my attention to the DRAT Rules and stated that when a miscellaneous appeal is filed, under the DRAT Rules no fee is prescribed and, therefore, insistence of Court-fees in terms of Rule 8 of the DRAT is impermissible. While drawing my attention to the provisions of Section 2(g), Section 19 and Section 20 of the Act and rules made under DRAT Rules, all the Counsel submitted that in a case where a particular amount is found due, when appeal is filed under Section 20 of the Act against that determination, the appellant is liable to pay the requisite Court-fees in terms of Rule 8, and also make the pre-deposit as provided under Section 21 of the Act. Counsel stated that when claim is made before the Tribunal by a Bank or financial institution, after adjudication as provided under Sub-section (20) of Section 19, the Tribunal determines the amount due to the financial institution. However, when miscellaneous applications/interlocutory applications are filed pending adjudication of the claim made by the financial institution/Bank before the Tribunal, the order so passed is also appeasable under Section 20 before the Act and thus such party is called upon to pay the requisite Court-fees. Counsel stated that since the Legislature has not made arrangement meeting contingency of this Court, insistence of payment of Court-fees in terms of Rule 8 of the DRAT Rules is improper and without jurisdiction.
4. The endeavour is on the provisions made under Rule 8 which insists payment of Court-fees. Counsel stated that the language used in Rule 8 of the DRAT Rules is on the amount of debt due and when such debts are found due, if the amount of debt found due is less than Rs. 10 lakh, Rs. 12,000/- is the fee payable, and in case of debt found to be due is more than Rs. 10 lakh or more but less than Rs. 30 lakh Rs. 20,000/- is fee and another category where the amount of debt found due is more than Rs. 30 lakh, fee payable is Rs. 30,000/-. Counsel pleaded that the words "amount of debt due" appearing in Sub-rule (2) of Rule 8 cannot be read as if the amount due and insist payment of Court-fees. While making efforts to convince this Tribunal, Counsels drew my attention to Section 2(g) read with Section 20 of the Act and distinguished the situation arising out of these provisions. All the Counsel pleaded that the Legislature has not made provision for such contingency of order passed on miscellaneous application, and, therefore, prayed that insistence of Court-fees in terms of Rule 8 is not sustainable.
5. Mr. R.K. Trakru and Mr. Mukul Chandra, Counsel who represent a set of financial institution and Bank, on the contrary, submitted that the Registry was justified in insisting payment of Court-fees on miscellaneous appeals also which arises out of interlocutory order of the Tribunal below, in terms of Rule 8 of the DRAT Rules, as according to them, no distinction is made under the DRAT Rules, between an appeal filed against a final order or against an interim order.
6. Before examining the correct position as to whether when an appeal is filed by an aggrieved party against an order passed by the Tribunal below in a pending proceedings on a miscellaneous application, Rule 8 of the DRAT Rules could be insisted upon for payment of Court-fees, the entire scheme of the Act has to be kept in mind, starting from Section 2(g) of the Act. Section 2(g) defines 'debt' as any liability (inclusive of interest) which is claimed as due from, any person by a Bank or a financial institution or by a consortium of Banks or financial institutions during the course of any business activity undertaken by the Bank or the financial institution or the consortium under any law for the time being in force, in case or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any Civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on the date of the application. As defined under Section 2(g) of the Act, when a claim is made as due before the Tribunal by presenting an application under Section 19(1) of the Act, the Tribunal has to adjudicate and decide the claim in terms of Sub-section (20) of Section 19, Sub-section (3) of Section 19 provides that every application under Sub-section (1) or Sub-section (2) shall be in such form and accompanied by such documents or other evidence and by such fee as may be prescribed provided that the fee may be prescribed having regard to the amount of debt to be recovered. From the reading of the provisions under Section 2(g) and Sub-section (3) of Section 19, it is clear that when a claim is presented, which is claimed as due from any person, fee has to be prescribed having regard to the amount of debt to be recovered. In other words, it could be said that on the quantum of claim requisite fees has to be paid before the Tribunal when such claim is made under Section 19 in terms of Rule (7) of the DRT Rules, which provides that where the amount of debt due is Rs. 10 lakh, Rs. 12,000/-is the fee, where the amount of debt due is above Rs. 10 lakh, the fee payable is Rs. 12,000/- plus Rs. 1,000/- for every one lakh rupees of debt due or part thereof in excess of Rs. 10 lakh, subject to a maximum of Rs. 1,50,000/- etc.
7. However, the scenario changes where the adjudication is made by the Tribunal and determines the debt due to the financial institution/Bank. Sub-section (20) of Section 19 of the Act, which says the Tribunal may, after giving the applicant and the defendant an opportunity of being heard, pass such interim or final order, including an order for payment of interest from the date or before which payment of the amount is found due upto the date of realisation or actual payment, on the application as it thinks fit to meet the ends of justice. Emphasis is laid on the words "amount is found due". That means, the Tribunal, after adjudication determines the amount due from the other side. Where such amount is found due, after adjudication, when an appeal under Section 20 is filed before the Appellate Tribunal, the Court-fees as provided under Rule 8 of the DRAT Rules are applicable and the appellant is bound to make the requisite Court-fees, on the amount found due, which is subject matter of the appeal. Whereas when a miscellaneous application is filed in appending proceedings, say, for instance, seeking cross-examination of witnesses, seeking production of documents, where the Tribunal is not called upon to determine the amount due, when appeals are filed before this Tribunal under Section 20, it appears to me, insistence of payment of Court-fees in term of Rule 8 of the DRAT Rules is not permissible. The provisions of Rule 8 of the DRAT Rules apply only when an order capable of quantifying the amount due is challenged before the Appellate Tribunal. However, a distinction has to be made when an appeal is filed against imposition of costs by the Tribunal below. Since the order of imposing costs is a discretionary order, the payment of Court-fees in terms of Rule 8 of the DRAT Rules does not arise at all in these cases.
8. Section 20 of the Act is the provision under which appeals can be preferred before this Appellate Tribunal, which provides-
(1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(3) Every appeal under Sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed.
Rule 8 of the DRAT Rules provides for payment of Court-fees, which says:
(1) Every memorandum of appeal under Section 20 of the Act shall be accompanied with a fee provided in Sub-rule (2) and such fee may be remitted in the form of crossed demand draft drawn on a nationalised Bank in favour of the Registrar and payable at the station where the Registrar's office is situated or remitted through a crossed India Postal Order drawn in favour of the Registrar and payable in Central Post Office at the station where the Appellate Tribunal is located.
(2) The amount of fee payable in respect of appeal under Section 20 shall be as follows:
Amount of debt due Amount of fees payable
1. Less than Rs. 10 lakh Rs. 12,000/-
2. Rs. 10 lakh or more but
less than Rs. 30 lakh Rs. 20,000/-
3. Rs. 30 lakh or more Rs. 30,000/-
9. Confusion in applying this rule for the purpose of filing an appeal arising out of an order, final or interlocutory, made by the Tribunal below is with regard to the wording of the provision which says 'amount of debt due'. As discussed at the threshold, when claim is made under Section 19, as defined under Section 2(g) the amount which is claimed as due from any person, the Tribunal adjudicate the claim of the institution/Bank and decides in terms of Sub-section (20) of Section 19, the amount due to the institution. The Court-fee to be paid at the threshold is on the basis of face value of the O.A. and in the appeals under Section 20 before the Appellate Tribunal, the same set of fees cannot be made applicable when the is no determination of the amount due.
10. Take for instance, an O.A. is filed for Rs. 1 crore. On adjudication, the Tribunal passes a final order or an interim order determining the amount due as Rs. 80 lakh. If the financial institution/Bank, which filed the O. A., chooses to prefer an appeal, it will be entitled to file the appeal only for the claim of Rs. 20 lakh. Under such circumstances, Rs. 20 lakh will be the basis for the calculation of the Court-fees to be paid before Appellate Tribunal. Likewise, if the Tribunal below direct the defendants, on the basis of admission of claim, to pay certain amount and if such a direction is challenged before the Appellate Tribunal by an aggrieved party, the basis for paying the requisite fees would be the amount so directed, and not the entire suit claim. Likewise, in a case where the Tribunal has directed a party to pay such and such amount along with interest at such and such rate and the party accepts the quantum of amount but disputes the rate of interest, such party chooses to assail the rate of interest before the Appellate Tribunal under Section 20 of the Act, the Court-fees payable in terms of Rule 8 will be on the basis of value of the appeal. That is the liability determined against the appellant. However, cases falling under the categories where no determination of liability is made, insistence of Court-fees in terms of Rule 8 of the DRAT Rules is impermissible.
11. In the absence of any provision, made by the Legislature meeting this requirement, I am of the view that the Registry shall be entitled to collect Rs. 250/- towards Court-fees on miscellaneous appeal being preferred before this Tribunal till suitable amendment is brought to the rules by the Government.
12. In that view of matter, the Registry shall take steps in terms of these directions in all the matters, including pending matters.
13. Copy of this order be furnished to all concerned.