Petitioner challenged DRAT order demanding full court fee under Rule 13(2)(1)(a). Court held tenant is not borrower/guarantor and need only pay under Rule 13(2)(1)(d). Also held no pre-deposit liability under Section 18.
Impugned order set aside; appeal restored; petitioner declared not liable to pre-deposit under Section 18.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940
OP (DRT).No. 6 of 2019
AGAINST THE ORDER/JUDGMENT IN AIR 618/2017 of DEBT RECOVERY TRIBUNAL, ERNAKULAM
PETITIONER/S:
A.M.SHANAVAS,
AGED 58 YEARS
S/O.A.MEERASAHIB, T.C.10/1606(8), SAMANUAYA, MARKET LANE, VATTIYOORKAVU, THIRUVANANTHAPURAM.
BY ADV. SRI.N.SASI
RESPONDENT/S:
1 THE AUTHORISED OFFICER, UNION BANK OF INDIA, UNION BANK OF INDIA CONSORTIUM UNION BANK OF INDIA, ERNAKULAM, MAIN BRANCH, M.G.ROAD, ERNAKULAM-682012.
2 K.VENUGOPALAN NAIR S/O.KRISHNA PILLAI, T.C.25/1497, S.S.KOVIL ROAD, THAMPANOOR, THIRUVANANTHAPURAM-695001.
3 THE DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI, 4TH FLOOR, INDIAN BANK BUILDING, OPP.ETHIRAJ COLLEGE, EGMORE, CHENNAI-680008.
BY ADV. SRI.SADCHITH.P.KURUP
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 01.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP (DRT).No. 6 of 2019
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JUDGMENT
The petitioner in this case impugns Exhibit-P4 order of the Debts Recovery Appellate Tribunal (herein after referred to as DRAT for short), whereby, they have been asked to pay the full court fee under Rule 13(2)(1)(a) of the Security Interest (Enforcement) Rules (herein after referred to as “Rules” for short). According to the petitioner, he is neither the borrower nor the guarantor of the loan; but that he is a tenant under the owner of the property and, therefore, entitled to the benefits under the judgment of this Court in Jagdev P.K v. Indian Bank, Kollam and another [2018(3) KHC 131].
OP (DRT).No. 6 of 2019
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pay court fee only under Rule 13(2)(1)(d) of the Rules. In fact, this is also a statutory mandate since Rule 13(a) stipulate that a tenant will only pay court fee as per Rules 13(2)(1)(d) or 13(2) (10(c). Obviously, therefore, the order of the DRAT impugned in this writ petition, obtains no legs to stand on. In fact, I have followed Jagdev P.K(supra) in various other judgments including W.P.(C).No.36254 of 2018 and I have also concluded therein that the Rule applicable in the case of a third party, including a tenant, is either Rule 13(2)(1)(d) or 13(2)(1)(c).
OP (DRT).No. 6 of 2019
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Act and Rules.
After I completed the dictation of this judgment, the learned counsel appearing for the petitioner pointed that both in Jagdev P.K (supra) as well as in my judgment in W.P. (C).No.36254 of 2018, the requirement of making pre-deposit under Section 18 has also been found unnecessary, except in the case of a borrower or a guarantor. I notice that this issue has also been considered in Jagdev P.K (supra) and I, therefore, declare that the petitioner herein is not liable to make any predeposit under Section 18 either.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Dxy
OP (DRT).No. 6 of 2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SA.NO.166/2017 WITHOUT ANNEXURE FILED BEFORE THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE ORDER BY THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM IN SA.NO.166/2017 DATED 02/09/2017.
EXHIBIT P3 TRUE COPY OF THE AIR(SA)NO.618/2017 WITHOUT ANNEXURE FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI.
EXHIBIT P4 TRUE COPY OF THE ORDER BY THE DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI IN AIR (SA)NO.618/2017 DATED 05/12/2017.
2 issues framed by the court
Whether a tenant of the secured asset, not being a borrower or guarantor, is liable to pay court fee under Rule 13(2)(1)(a) or Rule 13(2)(1)(d) of the Security Interest Enforcement Rules.
Whether a tenant is liable to make pre-deposit under Section 18.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
A.M.SHANAVAS
THE AUTHORISED OFFICER, UNION BANK OF INDIA
K.VENUGOPALAN NAIR
THE DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI
DEVAN RAMACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
