MS BAJRANG COLD STORAGE vs BANK OF INDIA on 30 March 2024

1. 1. M/s Bajrang Cold Storage O/o Mauza – Patehara Kala, Tappa 84, Pargana – Kantit, Tehsil Marihan, District Mirzapur, U.P.

2. 2. Vijay Kumar Singh, S/o Shri Ram Adhar Singh, R/o Village-Gauri, Post-Bahuar, Pargana – Bhuili, Tehsil- Chunar, District-Mirzapur, U.P.

3. 3. Smt. Renu Singh, W/o Vijay Kumar Singh, R/o Village-Gauri, Post-Bahuar, Pargana – Bhuili, Tehsil- Chunar, District-Mirzapur, U.P.

.....Appellants

Vs.

Branch Manager, Bank of India, Mirzapur Branch Wellesleyganj, District-Mirzapur.

.....Defendant

Present:

**For the Appellant** : Shri S. K. Gupta, Advocates**For the Respondent Bank** : Shri Arif Iqbal, Advocate**Dated : 30.03.2024****JUDGMENT**

1. 1. This appeal has been filed by the appellants under section 30 (1) of RDB Act, 1993, challenging the order dated 01.02.2023 passed by the Ld. Recovery Officer. The amount involved in this appeal is Rs. 3,51,49,488/- plus interest and other charges as mentioned in the proclamation of sale.

2. 2. Reply on the maintainability of the appeal has been filed on behalf of the respondent Bank.

3. 4. Ld. Counsels for the parties are heard on the issue of payment of Court Fee as well as Maintainability of the appeal as appellants have not deposited pre deposit money.

4. 5. It is submitted by the Ld. Counsel for the appellants that this appeal has been filed by the appellants against the interim order of the Recovery Officer dated 01.03.2023 and, as such, the Court Fee payable is only Rs. 250/-. It is submitted that in section 30 of the RDB Act, 1993, no fee has been provided while the fees is provided in the Rules and the Rules cannot override the Act. In this regard, Ld. Counsel for the appellants have relied upon paragraph 13 of the judgment passed by the Hon'ble Delhi High Court in W. P. (C) No. 7205 of 2007 decided on 25.08.2009 (Bal Kishan Bansal Vs. Jammu & Kashmir Bank Ltd. & Ors.). The paragraph 13 of the said judgment is reproduced herein under:- *"13. We hold that in respect of an appeal under Section 30 against an order passed by the Recovery Officer, no fees has been stipulated in the DRT Act Consequently, the rules prescribing the application of such a fee are ultra-virus the provisions of the DRT Act and, in particular, Section 30*

*thereof Thus, no fees are payable in respect of such appeals."*

6. Ld. Counsel for the appellants has further relied upon the judgment passed by the Hon'ble Gujarat High Court in Letters Patent Appeal No. 78 of 2007 in the matter of Madhukant Pranlal Shah Vs. Bank of India decided on 02.07.2013. Relied paragraph 07 of the said judgment is quoted herein below as under:- *"7. Thus, since the Act does not prescribe payment of any fee so far as appeal filed under Section 30(1) of the Act wherein interlocutory orders are challenged, no fee would be charged from the appellant since no power has been given to the Central Government to frame a rule prescribing such a fee. Therefore, unless the Rules are framed by the State Government or the Central Government amends the Act, no fee would be charged from the appellant. Therefore, fee demanded by the Tribunal on an appeal filed under Section 30(1) of the Act against an interlocutory order was illegal. Therefore, the order dated 8^th March 2006 cannot be upheld.*

7. It is further submitted by the Ld. Counsel for the appellants that since the Rules framed in respect of Section 30 of the RDB Act, 1993 has been declared ultra-virus by the Hon'ble Delhi High Court, therefore, the fee payable would be Rs. 250/- only and Rs. 250/- has already been paid. It is a fact that the appellants are borrowers but so far as payment of Court Fee is concerned, the proper court fee has been paid and, as such, the appeal is maintainable with respect to the Court Fee.

8. It is submitted by the Ld. Counsel for the respondent Bank that as per the amendment made in the Rules in the year 2016, no Court Fee has been deposited by the appellants and only Rs. 250/- has been paid while diarizing the appeal. Since the appellants are borrowers and have not paid the proper Court Fee as per the RDB Act, 1993 and Rules made thereunder, therefore, the appeal is not maintainable.

9. It is submitted by the Ld. Counsel for the appellants that the appellants are not challenging the validity of the decree but they are challenging the order of the Recovery Officer, passed in execution proceedings whereby, the Ld. Recovery Officer has dismissed the objection of the appellants/borrowers only on the grounds of delaying tactics. It is further submitted that the entire objections submitted by the appellants/borrowers have not been considered by the Recovery Officer while passing the order dated 01.02.2023 therefore, the question of making pre deposit of 50% of total dues as mentioned in section 30 (A) of the SARFAESI Act, 2002 does not arise. Ld. Counsel for the appellants has relied upon the judgment passed by the Hon'ble Allahabad High Court in Writ Petition No. 1634 of 2019 decided on 12.03.2019 in the matter of Jai Goptal Kansal Vs. Indian Bank. The relied paragraph 23, 24, 25 and 26 of the said judgment runs as under:- "23. That from reading of Section 22(2), it is clear that the Code of Civil Procedure is applicable and the power is vested both in the Tribunal as well as the Appellate Tribunal to proceed according to the procedure laid down in Code of Civil Procedure. Sub clause 2(g) of Section 22 is in regard to the application for recall of ex parte orders.

24. Now, the said provisions has to be read with provisions of Code of Civil Procedure. Section 33 of the C.P.C. deals with judgment and decree. Section 96 provides for appeals from original degree. While Section 104 read with Order XLIII Rule 1(d) provides for an appeal from an order under Rule 13 of Order IX rejecting an application for an order to set aside a decree passed ex parte. Thus, there is a distinction between an appeal filed against a decree and an appeal filed against an order.

25. Appeal against a decree is filed under Section 96, while appeal against an order is filed under Section 104 read with Order XLIII Rule 1, which is a miscellaneous appeal.

26. In the present case, the appeal filed under Section 20 before the Appellate Tribunal was in fact a misc. appeal filed, against an order rejecting an application under Order IX Rule 13 for setting aside an ex parte decree, as such the said misc. appeal was not against any decree, but was against an order. Section 21 of the Act contemplates that the amount of pre-deposit has to be made when the appeal is filed against the amount of debts so due as determined by the Tribunal under Section 19. In the present case, the appeal is not against the order determining the debt due dated 31.08.2009, but is against the order dated 04.09.2013 rejecting the recall application for setting aside an ex parte decree."

10. It is further submitted that in the present matter, the OA was filed by the respondent Bank in the year 2014 and the order was passed by this Tribunal in the year 2017. Since the OA was filed in the year 2014 and the amendment was introduced in the year 2016, therefore, the amendment incorporated subsequently cannot be applicable in this OA as the rights to appeal of the appellants have accrued on the date of filing. In this regard, the Ld. Counsel for the appellants has relied upon the judgment passed by the Hon'ble Supreme Court of India passed in I. A. No. 99210 of 2021 in Civil Appeal No. 1842 of 2021 decided on 15.02.2022 in the matter of ECGC Limited Vs. Mokul Shriram EPC JV. Ld. Counsel for the S. Applicant has has relied upon the judgment, passed by the Hon'ble Supreme Court of India in Civil Appeal No. 117 of 2005

decided on 13.01.2015 in the matter of Videocon International Ltd. Vs. Securities & Exchange Board of India. The relied paragraph No. 26 and 27 of the said judgment is reproduced as under:- *"26. As illustrated above, an appellate remedy is available in different packages. What falls within the parameters of the package at the initial stage of the lis or dispute, constitutes the vested substantive right, of the concerned litigant. An aggrieved party, is entitled to pursue such a vested substantive right, as and when, an adverse judgment or order is passed. Such a vested substantive right can be taken away by an amendment, only when the amended provision, expressly or by necessary intendment, so provides. Failing which, such a vested substantive right can be availed of, irrespective of the law which prevails, at the date when the order impugned is passed, or the date when the appeal is preferred. For, it has repeatedly been declared by this Court, that the legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps, are connected by an intrinsic unity, and are regarded as one legal proceeding.*

*27. Where the appellate package, as in the present case, is expressed differently at the "pre" and "post" amendment stages, there could only be two eventualities. Firstly, the pre-amendment appellate package, could have been decreased by the amendment. Or alternatively, the post-amendment package, could have been increased by the amendment. In the former situation, all that was available earlier, is now not available. In other words, the right of an individual to the appellate remedy, stands reduced or curtailed. In the latter situation, the amendment enhances the appellate package. The appellate remedy available prior to the amendment, stands included in the amendment, and some further addition has been made thereto. In the latter stage, all that was available earlier continues to subsist. The two situations contemplated hereinabove, will obviously lead to different consequences, because in the former position, the amendment would adversely affect the right, as was available earlier. In the latter position, the amendment would not affect the right of appeal, as was available earlier, because the earlier package is still included in the amended package."*

11. It is further submitted by the Ld. Counsel for the appellants that in view of the judgment, passed by the Hon'ble Apex Court, the right to appeal of the appellants was accrued in the year 2014, therefore, the amendment made in the year 2016 is not applicable, therefore, no pre-deposit is required to be made for maintaining the appeal.

12. Ld. Counsel for the respondent Bank submitted that the order of the Recovery Officer dated 01.02.2023 is ex-parte and no recall application has been filed by the appellants for recalling the said ex-parte order dated 01.02.2023. It is further submitted that the appellants are borrowers, therefore, the appellants cannot claim rights of the legal heirs of deceased as it was not agitated before the Recovery Officer. It is submitted that the amendment was made in the RDB Act, 1993 in the year 2016 and it is effective since the date of its notification. It is further submitted that the judgment was passed in OA in the year 2017, therefore, the amendment is fully operative. It is further submitted that the OA was decreed for an amount of Rs. 3,51,49,488/- and as of today, the total outstanding is almost Rs. 7.00 crores and as per section 30 (A) of the RDB Act, 1993, the appellants borrowers are required to deposit 50% of the total dues. Request is made that since the appellants have not deposited 50% of the total dues in view of the section 30 (A) of the RDB Act, 1993, therefore, the appeal is not maintainable and the same is liable to be dismissed.

13. Considered the rival submissions advanced on behalf of the Ld. Counsels for the parties and perused the records.

14. This Tribunal has to see whether the Court Fee of Rs. 250/- deposited by the appellants is sufficient or not? And, further that without making pre deposit of 50% of the total outstanding dues, whether the appeal is maintainable or not?

15. On perusal of record, it appears that the respondent Bank had filed the Original Application No. 328 of 2014 which was decided by this Tribunal in the year 2017 and the matter was sent to the Recovery Officer for execution of decree. During the execution proceedings, the defendants/ borrowers (appellants in the present matter) filed objections which was decided by the Ld. Recovery Officer vide order dated 01.02.2023 whereby, the objections filed by the appellants were rejected and against the said rejection, the appellants have filed the present appeal with Court Fee of Rs. 250/- only and no pre-deposit as provided in Section 30 (A) of the RDB Act, 1993 has been made.

16. The submissions of the Ld. Counsel for the appellants is that in section 30 of the RDB Act, 1993, no fee has been provided while the fees is provided in the Rules and the Rules cannot override the Act. Further, since this appeal has been filed by the appellants against the interim order dated 01.03.2023, passed by the Recovery Officer, therefore, the payable Court Fee will be Rs. 250/- only which has paid and the same is sufficient.

17. In this regard, this is to be seen that the Rules 7 (2) of the Debts Recovery Tribunal (Procedure) Rules provides the amount of fee payable as under:- <table border="1"> <thead> <tr> <th>S. No.</th> <th>Nature of Application</th> <th>Amount of Fee payable</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Application for recovery of debts due under section 19 (1) or section 19 (2) of the Act</td> <td></td> </tr> <tr> <td></td> <td>(a) Where amount of debt due is Rs. 10 lakhs</td> <td>Rs. 12,000/-</td> </tr> <tr> <td></td> <td>(b) Where the amount of debt due is above Rs. 10 lakhs.</td> <td>Rs. 12,000/- plus Rs. 1,000/- for every one lakh rupees of debt due or part thereof in excess of Rs. 10/-</td> </tr> </tbody> </table>

<table border="1"> <tr> <td></td> <td></td> <td>lakhs, subject to a maximum of Rs. 1,50,000/-</td> </tr> <tr> <td>2.</td> <td>Application to counter-claim under section 19 (8) of the Act –<br/><br/>(a) Where amount of claim made is Rs. 10 lakhs<br/>(b) Where the amount of claim made is above Rs. 10 lakhs.</td> <td>Rs. 12,000/-<br/><br/>Rs. 12,000/- plus Rs. 1,000/- for every one lakh rupees of debt due or part thereof in excess of Rs. 10/- lakhs, subject to a maximum of Rs. 1,50,000/-</td> </tr> <tr> <td>3.</td> <td>Application for Review including review application in respect of the counter-claim<br/>(a) Against an interim order<br/>(b) Against a final order excluding review for correction of clerical or arithmetical mistakes</td> <td>Rs. 125/-<br/>-50% of fee payable at rates as applicable on the applications under section 19 (1) or 19(8) of the Act, subject to a maximum of Rs. 15,000/-.</td> </tr> <tr> <td>4.</td> <td>Application for interlocutory order</td> <td>Rs. 250/-</td> </tr> <tr> <td>5.</td> <td>Appeals against orders of the Recovery Officer<br/>If the amount appealed against is<br/>(i) Less than Rs. 10 lakhs<br/>(ii) Rs. 10 lakhs or more but less than Rs. 30 lakhs.<br/>(iii) Rs. 30 lakhs or more</td> <td>Rs. 12,000/-<br/>Rs. 20,000/-<br/>Rs. 30,000/-</td> </tr> <tr> <td>6.</td> <td>Vakalatnama</td> <td>Rs. 5/-</td> </tr> </table>

17. The perusal of the above fee structure goes to show that if an appeal is against the orders of the Recovery Officer wherein the amount appealed is less than Rs. 10/- lakhs, the court fee payable is Rs. 12,000/- and if the amount appealed is Rs. 10/- lakhs or more but less than Rs. 30/- lakhs, the amount of court fee payable is Rs. 20,000/- and where the amount of appeal is Rs. 30/- lakhs or more, the fee payable is Rs. 30,000/. Furthermore, there is no whisper in entire Rule 7 (2) with regard to payment of court fee on interim orders passed by the Recovery Officers. These Rules have been framed by the legislature to regulate the proceedings of the DRTs which are the integral part of the RDB Act, 2002. In the present matter, the decree was passed for a sum of Rs. 3,51,49,488/- which is obviously more than Rs. 30 lakhs, therefore, the Court Fee payable on the same would be Rs. 30,000/- and the amount of Rs. 250/- deposited by the appellants is not sufficient.

18. With regard to pre-deposit, the Section 30 A of the RDB Act, 2002 provides as under:- **[30A. Deposit of amount of debt due for filing appeal against orders of the Recovery Officer.**

Where an appeal is preferred against any order of the Recovery Officer, under section 30, by any person from whom the amount of debt is due to a Bank or Financial Institution or consortium of Banks or Financial Institutions, such appeal shall not be entertained by the Tribunal unless such person has deposited with the Tribunal 50% of the amount of debt due as determined by the Tribunal.]

19. On perusal of the section 30A of the RDB Act, 1993, it is crystal clear that if any person from whom the amount of debt is due to the Bank or Financial Institution or consortium of Banks or Financial Institutions, prefers an appeal against any order which includes interim/final orders of the Recovery Officer, the appeal would not be entertained unless, he deposits 50% of the amount of debt due as determined by the Tribunal. In the present matter, the amount has already been decided by this Tribunal and the appellants are borrowers and as per decree an amount of Rs. 3,51,49,488/- is due to the Bank against the borrowers, therefore, they are required to make deposit of 50% of the amount due as determined by this Tribunal earlier and without depositing the same, the appeal cannot be entertained.

20. I respectfully bow down the order/judgment relied upon by the appellants but as the facts and circumstances of that case was different therefore, in the present matter, the same are not applicable.

21. In view of above, since the appellants who are borrowers have neither deposited proper court fee and nor have shown their intention to deposit the same and further they have neither deposited 50% of the amount due as pre-deposit to comply section 30A of the RDB Act, 1993 nor have shown their intention to deposit the same, therefore, in my considered view the appeal is not maintainable and is liable to be dismissed. It appears that appellants have filed this appeal for frustrating the execution proceedings, therefore, they are liable for costs.

Order

The appeal filed by the appellants is, hereby, dismissed being not maintainable.

It is made clear that order passed in this appeal shall not prejudice to any order of Hon'ble Higher Court in any manner.

Pending IAs/orders, if any, stands disposed off/vacated.

Copy of this order be supplied to the parties as per Rules.

Judgment signed, sealed, dated and pronounced in the open court on this 30^th Day of March, 2024.

Dictated & Corrected by me.

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

VK