B. H. Sudhlr Varma v. A. P. State Financial Corporation
2003-09-26
D.S.R.VERMA
body2003
DigiLaw.ai
D. S. R. VARMA, J. ( 1 ) THIS writ petition is filed seeking a declaration that the action, of the respondents 1 and 2 in proceeding under Section 29 of the State Financial Corporations act (for short "the Act") against the property, bearing Plot No. 443, A 21, H. No. 8-2-293/82/ l-III/443/a/21 in S. No. 120 (New) of shaikpet and 101/1 of Hakimpet Village, admeasuring 964 square yards, situated at road No. 86, Jubille Hills Co-operative House building Society Limited, Jubille Hills, hyderabad, offered by the petitioner as collateral security, as illegal and arbitrary. ( 2 ) THE undisputed facts are that the petitioner is a guarantor. The principal borrower had obtained a loan for a particular sum. The property of the petitioner, who is a guarantor, was mortgaged as a collateral security. The principal borrower fell in dues and was declared as defaulter. Invoking the provisions under Section 29 of the Act, the proceedings have been initiated by the A. P. State financial Corporation (for short "the corporation" ). A notification had been issued. Thereafter, the property of the petitioner was put to sale and eventually the respondent no. 4 was held to be a successful bidder and the property was also registered in his name. ( 3 ) SECTION 29 of the Act is the relevant provision to be invoked in case of default. A division Bench of this Court in Srinivasa kandasari Sugars v. Govt. of A. P. , AIR 1976 ap 93 held that Section 29 of the Act is a comprehensive provision and the normal procedure, which has to be followed in case of seizure etc. , has to be followed. Accordingly, the respondent No. 1 issued a paper notification on 18-1-2003 in local Telugu daily news papers wherein the name of the petitioner was shown as "b. H. Sundera sarma" whereas the name of the petitioner in B, H. Sudhir Varma. The name B. H. Sundera Sarma cannot be at any stretch of imagination be written and understood as b. H. Sudhir Varma. ( 4 ) IT is the established principle that while the property is to be seized and got it to be auctioned, notice has to be issued. But, in the instant case, in the public notification, the name of the petitioner had been totally wrongly mentioned. Admittedly, while initiating proceedings, publication of notification is the first step.
( 4 ) IT is the established principle that while the property is to be seized and got it to be auctioned, notice has to be issued. But, in the instant case, in the public notification, the name of the petitioner had been totally wrongly mentioned. Admittedly, while initiating proceedings, publication of notification is the first step. This is not only to facilitate the principal borrower but also the guarantor who mortgaged his valuable property, to take necessary steps, if any, either by repaying loan amount, or negotiate for one time settlement or by even participating personally in the auction proceedings by bringing persons who can offer better price. This valuable right had been deprived to the guarantor/petitioner, whose property was put to sale by wrongly mentioning his name in the public notification. Hence, I am of the considered view that the corporation had stumbled fatally at the threshold itself. When the very root of the procedure is erroneous, any amount of care or adherence to the rules and procedure prescribed, does not validate the invalid action initially initiated by the corporation. Therefore, I am of the view that on this ground alone, the proceedings initiated by the corporation under Section 29 of the act have to be held as vitiated. ( 5 ) YET another conspicuous fact that could be seen from the counter-affidavit filed by the respondent No. 1 is that initially the corporation had arrived at a figure of Rs. 63. 68 lakhs towards the value of the property of the petitioner. But, it appears that the respondent No. 4, who is the highest bidder among three participants, had quoted a sum of Rs. 46. 25 lakhs. The realizable value of the property estimated by the Corporation itself is more than 63. 00 lakhs and when there is a substantial deficiency in the value quoted by the tenderers, the corporation ought to have made another attempt by making re-notification, and tried to fetch higher amount to the extent possible. Such an higher offer could have been made by the petitioner who is the guarantor to protect his property. ( 6 ) FROM the counter-affidavit filed by the corporation it is to be seen that the 4th respondent initially offered an amount of rs. 46. 25 lakhs during negotiations. It appears that he informed the Corporation that the actual extent of the land available is 839 sq.
( 6 ) FROM the counter-affidavit filed by the corporation it is to be seen that the 4th respondent initially offered an amount of rs. 46. 25 lakhs during negotiations. It appears that he informed the Corporation that the actual extent of the land available is 839 sq. yards as against the notified extent of 964 sq. yards and accordingly he sought for reduction of the price. From the counter it appears that the Corporation liberally considered the said request and the price was reduced to Rs. 41. 25 lakhs. It is to be noted that it is for the 4th respondent to verify the extent, before making an offer. Having offered rs. 46. 25 lakhs, subsequently he made a request to the Corporation to reduce the price in view of the so called change in the extent of the land. From this it appears that even the Corporation also did not verify the extent of land. ( 7 ) FROM the above it is to be seen that the actual amount now fixed by the Corporation at Rs. 41. 25 lakhs, is less by about rs. 2,00,000/- as against the amount originally quoted and further it is by Rs. 5,00,000. 00 against the amount fixed during negotiations. ( 8 ) THE auction conducted by the Corporation appears to be a mere formality. In fact, these grounds need not be discussed inasmuch as, as already recorded by this Court, the proceedings initiated at the very threshold are defective and cannot be cured. ( 9 ) THE Apex Court in State Financial corpn. v. M/s. Jagadamba Oil Mills, AIR 2002 SC 834 observed that the proceedings shall be reasonable and transparent. If the proceedings are transparent, the Apex Court held that the Courts shall not interfere in the procedure adopted by the financial institutions. ( 10 ) BUT, here is the case where a gross and incurable error had crept in while following the established procedure, by printing the name of the petitioner wrongly and proceeding in tremendous pace while disposing of the property of the petitioner, undisputedly, for a considerably low price. Hence, the procedure adopted, by the Corporation, in this regard cannot be held to be transparent, reasonable and beyond doubt and hence the same is liable to be held as arbitrary apart from being vitiated on the first ground.
Hence, the procedure adopted, by the Corporation, in this regard cannot be held to be transparent, reasonable and beyond doubt and hence the same is liable to be held as arbitrary apart from being vitiated on the first ground. ( 11 ) IT is left to the wisdom of the head of the Corporation to think of expediency of conducting an enquiry, in the instant case, if necessary, in any other case also. ( 12 ) FOR the foregoing reasons, the writ petition is allowed and the Impugned proceedings/notification, dated 18-1-2003, initiated under Section 29 of the Act, by the respondents 1 and 2, only insofar as the property of the petitioner is concerned, are liable to be set aside and are accordingly set aside and all the consequential proceedings, including sale etc. , are also set aside. However, there shall be no order as to costs. ( 13 ) IT is on record that the respondent no. 4 is the auction purchaser. This Court passed an order in W. P. M. P. No. 13620 of 2003, dated 16-6-2003, to the effect that any sale would be subject to the result of the writ petition. In such an event, the respondent No. 4 being the auction purchaser is entitled for refund of amount paid to the corporation with interest at 6 per cent per annum from the date of deposit till the date of interim order of this Court in W. P. M. P. No. 13620 of 2003, dated 16-6-2003. Petition allowed.