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Allahabad High Court · body

2016 DIGILAW 1376 (ALL)

Manoj Kumar Pandey v. Authorised Officer, Bank of Baroda

2016-04-12

V.K.MATHUR

body2016
JUDGMENT : V.K. Mathur, Chairperson. The present Appeal has been preferred by the Appellants under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SRFAESI Act' against the order dated 2nd November, 2015 passed by the learned DRT, Allahabad in S.A. No. 409/2014, by which the Securitisation application of the Appellants challenging the auction sale was dismissed. 2. The brief facts of the present case are that the Appellants are the borrowers and mortgagers who had taken the housing loan from the Respondent-Bank. The Respondent-Bank sanctioned the loan of Rs 10.00 lacs to the Appellants. The Appellants failed to repay the installments regularly to the Respondent-Bank, therefore, the Respondent-Bank issued a notice dated 20th May, 2011 under Section 13(2) of the SRFAESI Act demanding a sum of Rs. 11,96,260/- including interest upto 31st March, 2011. 3. It is further stated that since the Appellants did not regularise their account, therefore, the Respondent-Bank initiated the recovery proceedings against the Appellants by taking recourse to Section 13(4) of the SRFAESI Act. The possession notice was issued by the Respondent-Bank on 25th August, 2011. It was averred that the Appellants challenged the entire proceedings for recovery before the DRT by means of S.A. No. 63 of 2013 which was disposed by the Tribunal below vide order dated 25th October, 2013. It was stated by the Appellants that after issuance of demand notice substantial amount on various dates was deposited by the Appellants. 4. It was further submitted by the Appellants that the Respondent-Bank issued the second possession notice on 30th October, 2013 for a sum of Rs. 6,74,026/- plus interest as on 30th October, 2013. The Appellants preferred a writ petition No. 68377/2013 before the Hon'ble High Court, Allahabad which was disposed of vide order dated 13th December, 2013 directing the Appellants to pay the dues of the Bank in 8 equal quarterly installments. It was further averred that since the Appellants did not pay the amount as ordered by the Hon'ble High Court, the Respondent-Bank proceeded for sale of the property in question vide auction sale notice dated 29th June, 2014 against which the Appellants preferred the Securitisation application No. 276 of 2014 which was decided by the Tribunal below vide order dated 19th August, 2014 in favour of the Appellants. 5. 5. The Appellants further stated that the Respondent-Bank again issued sale notice on 9th October, 2014 scheduling the auction of the property in question on 20th November, 2014 which was published in two newspapers and accordingly, the property in question was auctioned. The Appellants preferred the S.A. No. 409 of 2014 on 25th November, 2014 before the Tribunal below which was dismissed vide the impugned order dated 2nd November, 2015, Being aggrieved by the impugned order dated 2nd November, 2015, the Appellants preferred the present Appeal before this Tribunal under Section 18 of the SRFAESI Act. 6. The learned Counsel for the Appellants-borrowers submitted that the learned DRT has erred in dismissing the Securitisation Application S.A. No. 409 of 2014. It was contended that on account of non-compliance of Rule 8(6) and 8(7) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as "Rules"), the auction sale of the mortgaged property in favour of Respondent No. 4 auction purchaser by the Respondent Bank be set aside. It was averred that the Bank had fixed the reserve price of the mortgaged property at a low price and the property was sold at an inadequate price. The Appellants were ready to pay the dues of the Bank and as such are entitled to redeem the property. 7. The learned Counsel for the Respondent Bank and the Respondent No. 4 auction purchaser submitted that the learned DRT has rightly dismissed the Securitisation application of the Appellants. The Appellants did not comply with the order dated 13th December, 2013 of the Hon'ble High Court, Allahabad and in spite of stating the willingness to pay the dues of the Bank, failed to deposit the installments. The Appellants are not entitled to redeem the mortgaged property which was sold in public auction to the Respondent No. 4 after duly complying with the Rules 8(5) and 8(5) of the "Rules". The property was auctioned for a sum of Rs. 35.10 lacs and sale certificate was issued on 8th October, 2015. The Appellants failed to pay the dues of the Bank and did not comply with the order dated 2nd a November, 2015 of the learned DRT. It was further averred that the Respondent No. 4 is a bona fide purchaser and the Appellants are not entitled to redeem the property after confirmation of sale and issuance of sale certificate and the Appeal be dismissed with costs. It was further averred that the Respondent No. 4 is a bona fide purchaser and the Appellants are not entitled to redeem the property after confirmation of sale and issuance of sale certificate and the Appeal be dismissed with costs. 8. Heard the learned Counsels for the parties and perused the record of the case. 9. In the present case, the Respondent Bank had issued demand notice under Section 13(2) of the SRFAESI Act on 20lh May, 2011 for a sum of Rs. 11,96,260/-. The Appellants, in spite of stating their willingness to pay the balance dues of the Bank did not comply with the direction and order dated 13th December, 2013 of the Hon'ble High Court, Allahabad and failed to pay the installments. Thereafter, the Respondent Bank issued notice to the Appellants under Rule 8 (6) of the "Rules" on 9th October, 2014 which was published in two newspapers on 10th October, 2014 scheduling the public auction of the mortgaged property on 20lh November, 2014 wherein the property was auctioned to the Respondent No. 4. 10. It is relevant to refer to the writ petition filed by the Appellants before the Hon'ble High Court, Allahabad which was writ C. No. 68377 of 2013, Manoj Kumar Pandey v. Bank of Baroda challenging the recovery proceedings which was decided on 13th December, 2013 by Division Bench with the following directions: - " However, in the present case the Petitioners accept the liability and are ready to deposit the entire amount. However, appreciating the eagerness and willingness of the Petitioner-borrower to pay the entire outstanding amount, this Court, as a one time measure, in exercise of its equitable jurisdiction under Article 226 of the Constitution of India hereby directs that subject to the following conditions, the recovery proceedings initiated by the Bank shall remain stayed and no coercive steps shall be taken against the Petitioners : (i) The entire amount shall be repaid in eight equal quarterly instalments, First instalment be paid on or before 31st January, 2014 and thereafter within every three month. On payment of first instalment, the Bank will not take physical possession of the property inasmuch as it pertains to the Petitioners. On payment of first instalment, the Bank will not take physical possession of the property inasmuch as it pertains to the Petitioners. (ii) After payment of first instalment, Bank shall provide a complete copy of statement of account to the Petitioners mentioning the outstanding liability, after due adjustment of amount, if any paid, to the Petitioners, which shall be sent by registered post to the address of the Petitioners as available on the record of the Bank as on date. (iii) The Petitioners shall deposit the entire amount with Respondent-Bank. (iv) In case of default in any of the conditions, the present order shall stand automatically vacated. It is also provided that in case the Respondents find that there has been some concealment with regard to the factual position, the Respondents are free to move a stay vacation application before this Court. It is further provided that in case this is the second writ petition and is not the first writ petition, the present order shall not be given effect to. With the aforesaid directions, the writ petition is disposed off." 11. The Appellants failed to comply with the above directions of the Hon'ble High Court and did not deposit the entire amount with the Respondent Bank as per instalments. The Respondent Bank proceeded into the matter and auctioned the mortgaged property on 20th November, 2014 to the Respondent No. 4 - auction purchaser for consideration of Rs. 35.10 lacs and the sale was confirmed on 20th November, 2014. The Respondent Bank issued the sale certificate to the Respondent No. 4 auction purchaser on 8lh October, 2015. 12. It is also relevant to note conduct of the Appellants borrowers that in spite of accepting the liability and willingness to pay the entire outstanding dues of the Respondent Bank, the Appellants did not comply with the specific directions dated 13th December, 2013 of the Hon'ble High Court, Allahabad. The Appellants, thereafter, preferred Securitisation Application No. 409 of 2014 under Section 17(1) of the SRFAESI Act, 2002 before the DRT, Allahabad challenging the auction sale process. The S.A. was registered on 25th November, 2014 after removal of defects whereas the auction sale was confirmed by the Respondent Bank on 20th November, 2014. 13. The Appellants, thereafter, preferred Securitisation Application No. 409 of 2014 under Section 17(1) of the SRFAESI Act, 2002 before the DRT, Allahabad challenging the auction sale process. The S.A. was registered on 25th November, 2014 after removal of defects whereas the auction sale was confirmed by the Respondent Bank on 20th November, 2014. 13. The learned Counsel for the Appellants submitted that the impugned order passed by the learned DRT is illegal inasmuch as there has been non-compliance of Rule 8(5) and 8(6) of the "Rules". In this regard, the Respondent Bank had obtained the valuation report of the mortgaged property from the approved valuer on 25th August, 2014 wherein the value of the property was assessed at Rs. 32,63,000/- (Annexure 1 of the reply of the Bank in S.A.). The Respondent Bank sent a notice under Rule 8(6) of the "Rules" on 9th October, 2014 to the Appellants-borrowers by speed post mentioning the date of auction on 20th November, 2014 wherein reserve price of Rs. 33.00 lacs and the description of the immovable property was stated (Annexure No. 3). The auction notice was published on 10th October, 2014 in two leading newspapers one in vernacular language scheduling the auction sale on 20th November, 2014. Accordingly, the Respondent Bank sent 30 days notice to the borrower regarding the sale of the immovable secured assets which is due compliance of Rule 8(5) and 8(6) of the "Rules". Thus, the contention of the learned Counsel for the Appellants regarding non-compliance of Rule 8(5) and 8(6) of the "Rules" cannot be accepted. 14. If the facts of the present are seen, it is apparent that the Appellants have been a defaulter in the repayment of loan account in spite of the Hon'ble High Court order dated 13th December, 2013 to pay the due amount in instalments, The auction notice was served and published in two leading newspapers scheduling the date of sale on 20th November, 2014. The Appellants-borrowers did not even choose to pay the dues or raise any objections. 15. In Indian Bank v. Blue Jaggers Estates Limited, (2010) 8 S.C.C. 129 , the Hon'ble Supreme Court has observed as under : "25. The Court cannot lose sight of the fact that the Bank is a trustee of public fund. It cannot compromise the public interest for benefiting private individuals. 15. In Indian Bank v. Blue Jaggers Estates Limited, (2010) 8 S.C.C. 129 , the Hon'ble Supreme Court has observed as under : "25. The Court cannot lose sight of the fact that the Bank is a trustee of public fund. It cannot compromise the public interest for benefiting private individuals. Those who take loan and avail financial facilities from the Bank are duty-bound to repay the amount strictly in accordance with the terms of the contract. Any lapse in such matters has to be viewed seriously and the bank is not only entitled but duty-bound to recover the amount by adopting all legally permissible methods. Parliament enacted the Act because it was found that legal mechanism available till then was wholly insufficient for recovery of the outstanding dues of Banks and Financial Institutions." 16. In the present case, merely because the fixation of the reserve price of the property was stated by the Appellants to be less, in the absence of challenge at the relevant time would not be sufficient to set aside the auction sale. The auction cannot be held bad on the ground that it has fetched inadequate price. In the present matter, the sale price was not less than the reserve price and the Respondent No. 4 auction purchaser had immediately paid 25% of the amount of sale price and thereafter paid the balance amount within stipulated time. The learned Counsel for the Appellants has also not pleaded any ground of fraud or submitted any evidence in this regard. Thus, it cannot be held that there was non-compliance of the "Rules" to set aside the auction sale of the property. 17. The Appellants-borrowers had not exercised any right of redemption under Section 13(8) of the SRFAESI Act and there were no efforts at all on the part of the Appellants to settle their dues even after the order dated 13th December, 2013 of the Hon'ble High Court, Allahabad and after the service of sale notice dated 9th October, 2014 which was duly published in two leading newspapers on 10th October, 2014. The Appellants even after the order dated 2nd November, 2015 of the learned DRT below to pay the dues within 15 days failed to comply with the said order. The Appellants even after the order dated 2nd November, 2015 of the learned DRT below to pay the dues within 15 days failed to comply with the said order. As such when the Appellants had not approached the Respondent Bank with regard to the repayment of due amount to redeem the mortgage property, the Appellants have lost their right of redemption. 18. In the facts and circumstances of the present case, once of the sale certificate was issued to the Respondent No. 4 auction purchaser after accepting the bid and the sale was confirmed as per provisions of the SRFAESI Act, the auction purchaser who is a bona fide purchaser having invested substantial amount in the year 2014 has become the absolute owner of the property and as such the right in relation to the property vests with the auction purchaser. The sale of the secured asset in public auction as per the provisions of the SRFAESI Act, which has come to logical end after issuance of the sale certificate, is a complete and absolute sale for the purpose of SRFAESI Act as held in the case of Smt. Sadhana Shukla v. Debts Recovery Appellate Tribunal, Allahabad, 2015 (1) D.R.T.C. 489 (All.). 19. Thus, the auction sale of the mortgaged property by the Respondent Bank consequent to the issuance of sale notice is held to be legally valid. The Appellants-borrowers in the present case have also forfeited their right of redemption of the mortgaged property. 20. In view of the above discussions, there is no illegality in the impugned order dated 2nd November, 2015 passed by the learned DRT, Allahabad dismissing the Securitisation application filed by the Appellants-borrowers. The Appellants, in the facts of the case, have forfeited the right to redemption. 21. Consequently, there is no merit in the present Appeal which is dismissed with no order as to costs.