Rajesh Kumar & Anr. vs Kotak Mahindra Bank Ltd. & Ors.

Heard the learned counsels for the parties on the restoration application.

Learned counsel for the applicants submits that the applicants are neither borrower nor guarantor or mortgagor to the loan granted by the Bank to the borrowers, in which the respondent no. 2 was partner and mortgaged his ½ share of the property in question. It is further contended that the applicant had purchased the property through a registered agreement to sale from the respondent no. 2, who was the sharer of ½ portion of the property in question. It is also contended that the property in question was auctioned for a sum of Rs.155.00 lakhs in favour of the respondents no. 3 to 5 and the applicants have no concern with the debt due to the respondent no. 1, therefore, the applicants are liable to pay the court fee on half of the auctioned amount, which comes to Rs.78.00 lakhs and on the said amount, the applicants being third party have already deposited the court fee and as such, no further court fee is required to be paid by the applicants. It is therefore prayed that the restoration application may be allowed and the main Appeal Dy. No. 353/2019 may be restored to its original number.

Learned counsels for the appearing respondents submit that the applicants are purchasers of the property, which was mortgaged by the respondents-borrowers with the respondent-Bank and as such, they can be said to have been stepped into the shoes of the borrowers, therefore, they cannot be treated as third party and also cannot be held to be liable for the dues payable by the respondent no. 2, from whom they have purchased the property. It is therefore, prayed that the restoration application filed by the applicant may be rejected for want of court fee.

I have considered the rival contentions of the learned counsels for the parties and considered the material available on record.

Admittedly, the applicants are neither borrower nor guarantor or mortgagor to the financial assistance granted by the respondent-Bank to M/s Piyush Industries, in which the respondent no. 2 was a partner, but the applicants are the purchaser of half portion of the property in question of respondent no. 2. The respondent no. 2 and his brother Devendra Kumar Mishra were partners of M/s Piyush Industries and both the partners had created equitable mortgage over the property in question in favour of the respondent-Bank in order to secure the aforesaid facility. As per the Act and Rules made thereunder, the liability of borrower, co-borrower, guarantor or mortgagor is joint and several. In the present case, the respondent no. 2, from whom the applicants have purchased their share in the property in question, had mortgaged the said share in favour of the respondent-Bank towards credit facilities granted in favour of M/s Piyush Industries, in which he was one of the partners, therefore, the applicants are liable to pay the dues, to which respondent no. 2 is liable, thus the contention of the applicants that they are liable to pay the court fee on half of the auction amount is not tenable. Hence the application filed by the applicants for restoration of the appeal, which was dismissed for want of court fee, is liable to be rejected. Accordingly, the same is rejected with no order as to costs.