State Bank of India, Indore v. Shripad Madhao Kapil and Others
2012-04-11
R.K.GUPTA
body2012
DigiLaw.ai
JUSTICE R.K. GUPTA.:— They are heard. This is an Appeal preferred under section 18 of the SRFAESI Act, 2002 challenging the order dated 30th September, 2010 passed by the DRT in S.A. No. 72/2008 and also the order dated 18th April, 2011 passed in Review Application No. 05/2010, by which the Review Application has been dismissed and the order passed on 30th September, 2010 was upheld, by which the Tribunal has allowed the Securitisation Application preferred by the respondent No. 1. 2. The facts leading to the present case are that the Respondent No. 1 is the borrower and according to the Appellant-Bank, the account was irregular and was declared as NPA, therefore, notice under section 13 (2) of the SRFAESI Act, 2002 was issued by the Bank on 19th May, 2006" 3. The Respondent No. 1 being a borrower since has not liquidated the dues as per the notice issued under Section 13 (2) of the SRFAESI Act, 2002, therefore, action was taken by the Appellant-Bank under section 13 (4) of the SRFAESI Act, 2002. Firstly, the symbolic possession of the property was taken and thereafter, the physical possession of the property was also taken. The property was put to auction and the date for auction of the property was fixed for 17th March, 2007. 4. The Respondent No. 2 was the highest bidder as he submitted the highest bid for a sum of Rs. 12,05,001/-, therefore, the property as such was knocked down in favour of the Respondent No. 2. Finally the amount was deposited by the Respondent No. 2 on 26th January, 2008 as against the date of auction dated 17th March, 2007. The sale certificate was also issued by the Bank in favour of the Respondent No. 2 on 12th September, 2008. The Respondent No. 2 thereafter resolved the said property to the 'Respondent Nos. 3 and 4. Initially, they were not party before this Tribunal and they were made Respondents in the present Appeal and after when they were impleaded as Respondents, then notices were issued to them, but they did not appear and they were proceeded exparte. Subsequently, on their behalf Mr. Sajid Akhtar, Advocate appeared. He also appeared for the Respondent No. 2 and the matter has been heard. 5.
Subsequently, on their behalf Mr. Sajid Akhtar, Advocate appeared. He also appeared for the Respondent No. 2 and the matter has been heard. 5. The Tribunal has allowed the Securitisation Application filed by the Respondent No. 1 and as a consequence of the same, auction has been set aside and the property which was sold in auction in favour of the Respondent No. 2 was directed to restore the possession of the property to the Respondent No. 1. The Tribunal has passed the said order on the three grounds. The Tribunal firstly held that in the present case, the date when the account was declared as NPA, was not disclosed and was not even disclosed, therefore, the Bank could not have proceeded to issue the notice under section 13 (2) of the SRFAESI Act, 2002, therefore, all the consequential actions taken by the Bank including taking over the possession and auctioning of the property has been held to be bad in law. The Tribunal further held that after when the notice was received by the Respondent No. 1 borrower, an objection/representation was submitted by him by virtue of section 13 (3-A) of the SRFAESI Act, 2002 and without deciding the objection/representation, the authorized officer proceeded to take possession of the property and further proceeded to auction of the property therefore, without deciding the objection so raised by the Respondent No. 1, no action under section 13 (4) would have been taken by the Bank. 6. The another reason given by the Tribunal for allowing the Securitisation ______________