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2014 DIGILAW 42 (ORI)

Murarinath Sharma v. Allahabad Bank

2014-01-20

A.K.GOEL, A.K.RATH

body2014
JUDGMENT A.K. GOEl, C.J. This petition seeks quashing of, the sale notice dated 13.7.2011 (Annexure-4) in respect of the property of the petitioner issued by the Allahabad Bank. 2. The case of the petitioner is that he purchased the property in question from opp. party No. 5-Pradip Kumar Tripathy by way of registered sale deed dated 15.12.2003. The said opp. party had purchased the said property through registered sale deed dated 3.5.1999 from its' earlier owner Smt. Minerva Sahoo. The petitioner took loan against the said property from the State Bank of India on 7.1.2011. The Allahabad Bank initiated proceedings against the property, in question for recovery of loan from M/s. Chandra Synthetics with whom the petitioner had no concern. 3. Counter affidavit has been filed by the Allahabad Bank claiming that M/s. Chandra Synthetics had taken loan against the said property which belonged to Pradip Kumar Tripathy who had appointed Arun Kumar Swain as his attorney. The said property was mortgaged in respect of the loan advanced to M/s. Chandra Synthetics. Pradip Tripathy-opp.party No.5 had also given affidavit dated 14.3.2003 to the Bank affirming that Arun Kumar Swain was his Power of Attorney. The Bank has annexed a copy of general power of attorney to sell or mortgage the property in question in favour of Arun Kumar Swain, the guarantor. 4. In view of the above, the triable issue of fact, whether the Allahabad Bank was the mortgagee of the property in question and could proceed against the same for recovery of the loan advanced to M/s. Chandra Synthetics on the basis of mortgage created by Arun Kumar Swain, the attorney of owner of the property, Pradip Kumar Tripathy, is involved. 5. Learned counsel for the petitioner submits that Arun Kumar Swain had no legal authority to mortgage the property in question which belonged to Pradip Kumar Tripathy who later sold the same to the petitioner. The petitioner was the bona fide purchaser without notice of the mortgagee. 6. This raises a question of title between the parties which will require adjudication before an appropriate forum. Forum of Writ Court is not appropriate for the purpose. 7. Accordingly, the petition is disposed of without prejudice to the rights and remedies of the parties before an appropriate forum. 8. 6. This raises a question of title between the parties which will require adjudication before an appropriate forum. Forum of Writ Court is not appropriate for the purpose. 7. Accordingly, the petition is disposed of without prejudice to the rights and remedies of the parties before an appropriate forum. 8. Learned counsel for the petitioner has brought to our notice that Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 lays down that the provisions of the Limitation Act, 1963 (36 of 1963), shall, as far as may be, apply to an application made to a Tribunal. He further points out that under Section 17(7) of the SARFAESI Act, 2002, the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 are applicable to any application for disposal of the application under the SARFAESI Act, which includes the application by any aggrieved party. He thus, submits that this Court may make legal position clear to avoid any confusion. 9. Since learned counsel for the Bank has not been able to dispute the above legal position, we clarify that the provisions of the Limitation Act will apply to proceedings under the SARFAESI Act, 2002. The petition is disposed of. Petition disposed of.