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2012 DIGILAW 67 (KAR)

Devi Traders v. Deputy Commissioner

2012-01-19

ASHOK B.HINCHIGERI

body2012
ORDER Ashok B. Hinchigeri, J. 1. The petitioner has raised the challenge to the first respondent's order dated 17-6-2006 (Annexure-O) in exercise of the power conferred by Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act for short). By the said order, the first respondent-Deputy Commissioner has authorised the Tahsildar and Taluka Executive Magistrate, Gulbarga to take the possession of the property in question and hand it over to the Authorised Officer of the second respondent-Bank. The petitioner had availed of the financial assistance from the respondent 2. As a security for the repayment of the loan, the petitioner mortgaged the property in question to the respondent 2. As the petitioner committed default in the payment of the loan and the interest accrued thereon, the second respondent-Bank resorted to the proceedings under SARFAESI Act. The outstanding balance is stated to be Rs.8,61,690/-, as on the date of the issuance of the impugned order. The respondent 2 sought the assistance of the respondent 1. Invoking Section 14 of the SARFAESI Act, the respondent 2 passed the order authorising the Tahsildar and Taluka Executive Magistrate, Gulbarga to take the possession of the property in question and handover its possession to the Authorised Officer of the second respondent-Bank. It is this order, which is called into question. 2. Sri Sanganagouda V. Biradar, the learned Counsel for the petitioner submits that the property in question is undersold. Though its market value is Rs.35,00,000/-. It is sold at about Rs.20,00,000/-. He submits that there is discrepancy in the numbers shown in the impugned order and the notice on one hand and between impugned order and the loan documents on the other hand. As the petitioner did not have the notice of the proceedings, he could not effectively resist the same, so contends Sri Sanganagouda V. Biradar. He submits that the petitioner is also trying to sort out the issue with the respondent 5. 3. Per contra, Ms. Hema L. Kulkarni, the learned Counsel for the respondent 2 denies that there is underselling. She submits that nothing survives for any consideration of this petition in view of the subsequent development of auctioning the house property in question in favour of the respondent 5 and collecting the entire sale consideration of Rs. 20,50,000/-. She submits that after deducting the petitioner's dues of Rs. She submits that nothing survives for any consideration of this petition in view of the subsequent development of auctioning the house property in question in favour of the respondent 5 and collecting the entire sale consideration of Rs. 20,50,000/-. She submits that after deducting the petitioner's dues of Rs. 8,61,690/- the balance sale consideration is credited to the account of the petitioner. She further submits, on instructions, that the petitioner has also withdrawn the amounts so credited to its account. 4. It is the Court's anxiety that nobody's property be undersold. If the petitioner has any grievance over the auction sale, it has to challenge the same in the appropriate proceedings. The auction or its confirmation are not called into question in these proceedings. 5. As per as the discrepancy in the description of the property is concerned, I find it to be too slender a ground for my interference, because the identity of the property is not in dispute. The grievance over the alleged mis-description of the property has to be ventilated before the Deputy Commissioner by seeking the rectification in the description of the property. The Deputy Commissioner has to hear the petitioner, second respondent-Bank and the fifth respondent-purchaser before passing any order on the rectification application, if any. Depending on the outcome of the rectification exercise, the rectification deed may have to be filed with the jurisdictional Sub-Registrar. The submission made by Ms. Hema Kulkarni, at this juncture, that there is absolutely no error in the description of the property in the impugned order is placed on record. 6. The office is directed to return the sum of Rs. 4,00,000/- stated to have been deposited by the petitioner in these proceedings, to the petitioner. This petition is accordingly disposed of. No order as to costs.