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2017 (2) TMI 562 - HC - Indian LawsProceedings initiated by the Bank against the schedule property under the SARFAESI Act - whether no notice was given to the writ petitioner, under the SARFAESI Act, 2002, including the offer given to other owners, and release of the property, etc. - Contentions that the property was purchased for valuable consideration from Mr.V.Sampath, Managing Director of M/s.Blue Jaggers Estates Ltd, has been made - Held that:- The main condition to be satisfied for preferring an application, under Section 17(1) of the SARFAESI Act, 2002, is that the applicant must be an aggrieved person. Expression "any person" employed in Section 17(1) of the Act and Rule 13(2) of the Security Interest (Enforcement) Rules, 2002, can have reference, only to the borrower or guarantor or any person aggrieved or affected by any action taken under Section 13(4) of the SARFAESI Act, 2002 and that law is not designed, enabling all the persons to challenge the proceedings of the SARFAESI Act, 2002. Therefore, with due respect, we are of the considered view that the interpretation that any person, not being a borrower, but owner of the property, totally unconnected with the debt, but his property at peril, would fall within the residuary clause (e) of Rule 13(2)(1) of the Rules, relatable to any other person, would not be a proper interpretation to the words, "any person", occurring in Rule 13(2)(1)(e) of the Rules. Indisputably, the writ petitioner has filed an application, under Section 17 of the SARFAESI Act, 2002, challenging sale certificate and vide order, dated 14.03.2013, DRT-III, Chennai, has dismissed the same. As stated supra, the contention of the Bank that while preferring an application under Section 17(1) of the SARFAESI Act, 2002, the writ petitioner has paid the requisite court fee, has not been disputed. We have also extracted the heading, under which, the writ petitioner has pursued his further remedy, under Section 18 of the SARFAESI Act, which is an appeal. As per Rule 13 of the Rules, 2002, the amount of fee payable to an appeal to the appellate authority, against any order, passed by the DRT, the same has to be accompanied with the fees, provided at Clauses (a) to (d) to Rule 13(2)(1). In the light of the decisions and discussion, case of the writ petitioner would squarely falls under Rule 13(2)(1)(c) and (d) of the Rules, 2002. The writ petitioner is required to pay the prescribed Court fee. According to the 3rd respondent-Bank, the writ petitioner has to pay the maximum fee of ₹ 50,000/-, for entertaining the appeal, under Section 18 of the SARFAESI Act, 2002. As observed, the writ petitioner seemed to have paid deficit court fee and therefore, vide order, dated 10.09.2014, the DRAT, Chennai, has directed the writ petitioner to pay the balance court fee. At this juncture, the reasoning of the DRAT that waiver application has not been filed, may not arise. First, the petitioner has to pay the required court fee. The question, whether he is entitled to seek for waiver, is another issue, if any application is filed. But payment of court fee cannot be avoided by the writ petitioner, who claims to be the owner of the property and aggrieved by the action, under Section 13(4) of the SARFAESI Act, 2002. In the light of the discussion and decisions, we find no force in the contention of the petitioner.
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