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2014 DIGILAW 3 (ORI)

Prafulla Ku. Dora v. R. M. , Bank of Baroda

2014-01-02

A.K.GOEL, A.K.RATH

body2014
JUDGMENT : A. K. Rath, J. This case has a chequered history. Petitioner No.1 availed a loan of Rs.7,00,000/- in the year 2007 for construction of a house. Against the loan, certain properties in the district of Angul were kept as mortgage. Since the petitioners could not repay the monthly installments, the account was declared as N.P.A. Thereafter, the bank took recourse to the provisions of the SARFAESI Act and took symbolic possession of the property. On 29.11.2010 notice was issued to petitioner No.1 for sale of the mortgaged property. The sale notice was also published in the daily newspaper on 30.11.2010. The date of sale was fixed to 8.12.2010 and the reserve price was fixed at Rs.14,85,000/-. By letter dated 9.12.2010, petitioner No.1 was informed that the property had been sold in public auction for a sum of Rs.14,87,000/-. Challenging the action of the Bank, petitioner No.1 filed the writ petition, being W.P.(C) No. 25625 of 2011, to set aside the auction sale of the mortgaged property. By order dated 23.9.2011, this Court directed the petitioners to hand over a draft of Rs.8,64,450/- to the learned counsel for the Bank. Basing on the submission of the learned counsel for the petitioners that the petitioners had prepared a draft covering the entire loan amount, it was, inter alia, directed that in the event the petitioners will not succeed in the writ petition, the said amount along with interest accrued thereon shall be refunded to the petitioners. After hearing the learned counsel for the petitioners and learned counsel for the Bank, this Court by order dated 13.8.2012 disposed of the writ petition granting liberty to the petitioners to prefer an appeal before the Debts Recovery Tribunal under Section 17 of the Act. But then the amount deposited by the petitioners in compliance of the order dated 23.9.2011 was refunded to them with accrued interest within fifteen days from the date of the order. After disposal of the writ petition, the petitioners filed an appeal, which was registered as S.A.No.30 of 2012 along with an application for condonation of delay. In an elaborate order, the learned Tribunal dismissed the appeal on 24.6.2013. The same is impugned in the present writ application. 2. We have heard Mr. Nayak, learned counsel for the petitioners and Mr. Niamati, learned counsel for the Bank. 3. Mr. In an elaborate order, the learned Tribunal dismissed the appeal on 24.6.2013. The same is impugned in the present writ application. 2. We have heard Mr. Nayak, learned counsel for the petitioners and Mr. Niamati, learned counsel for the Bank. 3. Mr. Nayak, learned counsel for the petitioners submits that the learned Tribunal committed manifest illegality and impropriety in dismissing the appeal on the ground of delay. He further submits that in view of the authoritative pronouncement of different High Courts, the learned Tribunal ought to have condoned the delay and heard the matter on merits. 4. We are giving our anxious consideration to the matter in issue and perused the impugned order. Though the learned Tribunal did not condone the delay but then decided the appeal on merit. As would evident from the said order, the Bank prior to auction of the property had obtained the valuation report on 3.5.2010. Prior to that, valuation report was also obtained on 1.5.2007 wherein the valuation of the property was assessed at Rs.15,25,000/-. The same was accepted by the petitioners. Prior to the auction a fresh valuation report was also obtained wherein the property was valued at Rs.17,45,000/- and the distressed value was assessed at Rs.14,85,000/-. The petitioners had not filed the valuation report before the learned Tribunal to buttress their plea that valuation of the property was more than Rs.48,00,000/-. Relying on the valuation report submitted by the Bank, the learned Tribunal further came to hold that by cogent evidence the bank had established that valuation of the property at the time of auction was Rs.17,15,000/- and the distressed sale value was assessed at Rs.14,85,000/- and thus there was no illegality committed by the bank to put the property in auction. The Tribunal further came to hold that on the request of the petitioners vide their letter dated 1.3.2013 to release the balance amount after closing the account, the bank had paid a sum of Rs.6,90,110.00 on 22.3.2013 and the petitioners had confirmed that the no other amount was to be received by them. Thus, submission of Mr. Nayak, learned counsel for the petitioners that the learned Tribunal dismissed the appeal on the ground of delay has no legs to stand even no material is produced before us to show that the property was put to auction by playing fraud. Thus, submission of Mr. Nayak, learned counsel for the petitioners that the learned Tribunal dismissed the appeal on the ground of delay has no legs to stand even no material is produced before us to show that the property was put to auction by playing fraud. Therefore, no case is made out by the petitioners to interfere with the impugned order passed by the learned Tribunal. 5. The writ petition is accordingly dismissed. Petition dismissed.