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2015 DIGILAW 1693 (ALL)

Central Bank of India v. Himanshu Shekhar Jha

2015-07-01

V.K.MATHUR

body2015
JUDGMENT : V.K. MATHUR, J. (CHAIRPERSON) 1. This Appeal has been preferred by the appellants-Bank under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act") against an interim order dated 2nd March, 2015 passed by the learned DRT, Jabalpur by which the learned DRT has stayed the scheduled auction of the property in question. The brief facts for adjudication of the present case are that the respondent Himanshu Shekhar Jha and his wife Smt. Kiran Jha applied for loan amount of Rs. 91 lacs which was sanctioned by the appellants to the respondent under Cent Mortgage Loan on 18th September, 2013 for the purpose of personal and business needs. The respondent mortgaged his property situated at Shop No. 15, Mezzanine Floor, Shrishti Complex, Bhopal and the property which was in the name of his daughter Miss Akanksha Kashyap situated at Shop No. 14, Mezzanine Floor, Shrishti Complex, Bhopal. 2. The respondent did not repay the loan amount and the appellant-Bank' classified the account of the respondent as Non-Performing-Assets in terms of the norms laid down by the R.B.I. 3. The notice under Section 13(2) of the SARFAESI Act, 2002 was issued by the appellant on 8th October, 2014 to the respondent for a sum of Rs. 97,25,740. The appellants-Bank initiated the proceedings to take the possession of the property mortgaged by taking recourse to Section 13(4) of the SARFAESI Act, 2002. The possession of the property was taken on 6th January, 2015. The "E" auction sale notice was published on 25th January, 2015 in the Newspapers for sale of the mortgaged property of the respondent on 5th March, 2015. 4. The respondent has preferred a Securitization Application under Section 17 of the SARFAESI Act, 2002 before the DRT, Jabalpur which was registered as S.A. No. 31/2015. The said S.A. is still pending before the DRT, Jabalpur. The learned DRT vide impugned order dated 2nd March, 2015 stayed the aforesaid auction scheduled on 5th March, 2015. Being aggrieved by this interim order, the appellants-Bank has preferred the present Appeal before this Tribunal praying that the said order be quashed. 5. Learned Counsel for the appellants submitted that the learned Tribunal has erred in restraining the appellants-Bank from conducting the scheduled auction. It was submitted that the respondent-Himanshu Shekhar Jha had taken the loan of Rs. Being aggrieved by this interim order, the appellants-Bank has preferred the present Appeal before this Tribunal praying that the said order be quashed. 5. Learned Counsel for the appellants submitted that the learned Tribunal has erred in restraining the appellants-Bank from conducting the scheduled auction. It was submitted that the respondent-Himanshu Shekhar Jha had taken the loan of Rs. 91 lacs by mortgaging the property as mentioned in the sanction letter dated 18th September, 2013. The auction of the property of Shri Ganesh Warehouse is a different property and the mere mention in the sanction letter dated 18th September, 2013 that the loan amount will be remitted towards the auction amount of Shri Ganesh Warehouse cannot lead to conclusion that the loan was sanctioned towards the auction amount of Shri Ganesh Warehouse. It was also submitted that wife of the respondent Smt. Kiran Jha was not a party in the Securitization Application filed by the respondent. It was also stated that these were two different transactions which cannot be intermingled and prayed that impugned order dated 2nd March, 2015 of the learned Tribunal be set aside. 6. Learned Counsel for the respondent submitted that the respondent had taken the loan which was to be remitted towards the auction amount of Shri Ganesh Warehouse and the said transactions are connected. The learned DRT has rightly held that these matters require investigation to decide the real controversy and has restrained the Bank from conducting the auction. It was stated that the Appeal filed by the appellants be dismissed. 7. I have heard the learned Counsel for both the parties and perused the record. 8. In Mardia Chemicals Ltd. v. Union of India, 110 (2004) DLT 665 (SC) : II (2004) BC 397 (SC) : II (2004) SLT 991 : (2004) 4 SCC 311 , the Hon'ble Supreme Court observed as under: "81......The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital, liquidity and resources to help in growth of the economy of the country and welfare of the people in general which would subserve the public interest." 9. In the present case the respondent-Himanshu Shekhar Jha had taken the loan of Rs. 91 lacs from the appellants-Bank for personal and business needs by mortgaging the property situated at M-15 and M-14, Mezzanine Floor, Shrishti Complex, Bhopal. The respondent failed to repay the loan amount wherein the account was classified as Non-Performing-Asset (NPA). 10. The appellants-Bank issued a Demand Notice under Section 13(2) of the SARFAESI Act, 2002 demanding Rs. 97,25,740/- along with interest. The possession of the above mortgaged property was taken on 6th January, 2015 by taking recourse to Section 13(4) of the SARFAESI Act, 2002. The "E" Auction Sale Notice of the said property was published on 25th January, 2015 in two Newspapers for sale of the mortgaged property on 5th March, 2015. 11. It is to be noted that the mortgaged property of Shri Ganesh Warehouse which was situated at Survey No. 17/2, Village Kailakhedi, District Hosangabad (M.P.) was sold in favour of the respondent's wife Mrs. Kiran Jha and the possession of the said property was handed over to her by the appellants-Bank. 12. The mere mentioning of adjusting of loan amount towards the auction amount of Shree Ganesh Warehouse in which the mortgaged property was different situated at Survey No. 17/2, Village Kailakhedi, District Hosangabad (M.P.) cannot be a ground to stay the auction of the mortgaged property of the respondent-Himanshu Shekhar Jha situated at M-15 and M-14, Mezzanine Floor, Shrishti Complex, Bhopal. The learned DRT, Jabalpur was therefore, not justified in restraining the appellants-Bank to recover its dues from the property mortgaged by the respondent-Himanshu Shekhar Jha to secure the loan. In view of the above discussion, the Appeal filed by the appellants is allowed and impugned order of the learned DRT, Jabalpur dated 2nd March, 2015 is set aside and the appellants-Bank is given liberty to proceed against the secured assets of the respondent in accordance with law. Parties to bear their own costs.