1. By the interim order dated 4th February, 2005 passed by this Tribunal, issue of Court-fee was kept open which will have to be decided before the appeal itself is heard and finally disposed of.
2. The important question which requires determination in this appeal is whether Court-fee payable on this appeal is fixed Court-fee of Rs. 250/- or Court-fee payable on ad valorem basis under Rule 8 of the Debts Recovery Appellate Tribunal (Procedure) Rules, 1994 (hereinafter referred to as the Rules of 1994).
3. On behalf of the appellants it is argued that since there is no order against the Bank for payment of any decretal amount, a Court-fee which would be payable is Rs. 250/-, which has already been paid by the appellants. According to the learned Advocate for the appellants since by this appeal what is challenged is the show-cause notice dated 12th January, 2005 issued by the D.R.T., Aurangabad pursuant to its order dated 27th December, 2004, there was no question of payment of Court-fee on ad valorem basis.
4. The above contention is not acceptable for the reasons that follow.
From the provisions of the Act, rules and the notification issued by the Ministry of Finance it appears that only provision for filing the appeal before the D.R. A.T. is Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDBFI Act). It provides for filing of the appeal by any person aggrieved by an order passed by the Tribunal i.e. the D.R.T. Rule 8 of the Rules of 1994 provides for Court-fee payable in respect of the appeal filed under Section 20 under which the minimum Court-fee payable is Rs. 12,000/- if the amount of debt is less than Rs. 10 lacs, Rs. 20,000/- if the amount of debt is Rs. 10 lacs or more, but less than Rs. 30 lacs and Rs. 30,000/ - if the amount of debt is Rs. 30 lacs or more. The only provision for payment of Rs. 250/- is made by the notification issued by the Ministry of Finance, Department of Economic Affairs, Banking Division dated 21st January, 2003, whereby a sum of Rs. 250/- is payable by way of Court-fee in respect of any application made for interlocutory order as per Clause 4 thereof. The said notification also prescribes Court-fee on the lines of Rule 8 of the Rules of 1994 in respect of the appeal filed against the orders of the Recovery Officer.
5. The argument that the present appeal will not be a regular appeal but a miscellaneous appeal as what is challenged is the show-cause notice issued by the D.R.T. and, therefore, the Court-fee, which would be payable is Rs. 250/-, is also without merit. The Act does not provide for or makes any distinction between the appeals and the miscellaneous appeals. The classification of appeals as regular appeals and miscellaneous appeals has been made by Regulation 4 in Chapter II of the Debts Recovery Appellate Tribunal. Mumbai (Procedure) Regulations of Practice, 2001, to distinguish between the appeals preferred against the orders finally disposing of the applications under Sub-sections (1) and (2) of Section 19 of the RDDBFI Act and other appeals filed against the interim orders passed by the D.R.T. The former appeals are numbered and registered as appeals while the latter are numbered and registered as miscellaneous appeals. All appeals whether regular appeals or miscellaneous appeals are filed under Section 20 of the RDDBFI Act only. There is no separate provision under the Rules providing for payment of separate or different Court-fee in respect of regular appeals and the miscellaneous appeals. So far as the payment of Court-fee is concerned, the provision is made only in Rule 8 of the Rules of 1994, under which the Court-fee is payable on ad valorem basis. On the other hand the payment of fixed Court-fee of Rs. 250/- is provided by the aforesaid notification of 2003 in respect of application made for interlocutory orders as observed earlier.
6. The perusal of memorandum of appeal shows that what is challenged in the present appeal vide para 6 thereof is the order dated 27th December, 2004 passed by the D.R.T., Aurangabad in appeal No. 24/2004 in addition to the show cause notice dated 12th January, 2005 issued pursuant to the order of the D.R.T. dated 27th December, 2004. The said appeal undoubtedly has been filed under Section 20 of the RDDBFI Act.
There is no other provision under the RDDBFI Act providing for any other kind of appeal and the Court-fee payable in respect of such appeals, is prescribed by Rule 8 only of the Rules. The notification dated 21st January, 2003 referred to above also does not provide for any appeal.
7. The perusal of the impugned order dated 27th December, 2004, shows that action of appellant Bank taken under the provisions of Sub-sections (2) and (4) of Section 13 of The SRFAESI Act, 2002 was challenged in the appeal filed before the D.R.T. In the said appeal, which was filed by the respondents in the present appeal before the D.R.T., the Court-fee of Rs. 46,000/-, was paid, which is payable under the provisions of Rule 7 of the Rules of 1993 i.e. on ad valorem basis.
When the appeal is filed against the order of the D.R.T., the appellants naturally are, as a matter of course and law, required to pay the Court-fee under Rule 8 of the Debts Recovery Tribunal (Procedure) Rules, 1994, which is prescribed on ad valorem basis.
8. The learned Advocate for the appellant Bank further argues that in case the appellants arc made to pay Court-fee under Rule 8 of the Rules of 1994, the same could be only in respect of Clauses 4 and 5 of the impugned order, whereby the appellants are directed to pay to the respondent the costs of the proceedings including Court-fee and Advocate's fees and compensation @ Rs. 1,000/- per day which in aggregate would be less than Rs. 10 lacs and therefore the Court-fee payable is Rs. 12,000/- under Rule 8(2)(i) of the Rules of 1994. The said argument however, does not take into account the amount of debt of Rs. 43,31,764.62 which was claimed and sought to be recovered under the provisions of SRFAESI Act in respect of which the Court-fee payable would be Rs. 30,000/-.
9. The other argument advanced on behalf of the appellants is that the above amount of debt which is more than Rs. 43 lacs, was not due from the Bank and, therefore, Bank cannot be asked to pay Court-fee on it.
The said argument loses sight of the fact that when the claim is filed on behalf of the Bank under the provisions of RDDBFI Act, 1993 the Banks arc not exempted from paying Court-fee which is payable on ad valorem basis. Moreover, if the Bank succeeds in the present appeal, the claim of the appellant Bank which is more than Rs. 43 lacs, claimed as a debt due from the respondents, becomes recoverable.
10. For the aforesaid reasons the appellants are directed to pay the Court-fee in accordance with law. Since an amount of Rs. 250/- is already paid towards the Court-fee, they are directed to pay a sum of Rs. 30,000/- minus Rs. 250/- i.e. a sum of Rs. 29,750/- within a period of two weeks from today, failing which the appeal shall stand dismissed.