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2016 DIGILAW 461 (GAU)

Eastern Fire Protection Engineers v. Vijaya Bank

2016-05-25

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Heard on admission. The petitioner has filed an appeal under Section 18 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, before the Debts Recovery Appellate Tribunal, Kolkata, against the order dated 9.3.2016 passed by the Debts Recovery Tribunal, Guwahati. The order dated 9.3.2016 reads as under: “Case record is called out as per previous order. The learned counsel Sri S Mitra for the misc. applicant is present and submits. The learned counsel Sri B Sarma for the respondents No.1 & 2 is present and submits. No one has appeared for and on behalf the respondents No.3 & 4 though the Ld. Counsel Sri M Dutta was present on the last date of hearing. Today is the date fixed for necessary order. The learned counsel for the respondents No.1 & 2 has filed written objection on the Misc. Application No.38/2016. A copy of the same has been served upon the learned counsel for the applicant. The applicants have filed this misc. application No.38/2016 for stay of e-auction sale notice dated 16.02.2016 to be held on 18.03.2016. The say of the applicant is that the applicant No.1 through applicant No.2 has availed the loan from the respondent No.1 and applicant No.3 stood as guarantor and credit facility was secured by hypothecation of impugned assets. The further say of the applicant is that the applicants have never created any secured interest over the said load in favour of the respondents by depositing original title deed of their property. The further say of the applicant is that account was classified as NPA on 31.12.2013 and respondents issued demand notice under section 13(2) of the SARFAESI Act, 2002 and Rules made thereunder. The respondents had taken possession on 03.05.2014, but the respondents did not publish the possession notice in the 2 (two) leading newspaper within stipulated time. The further say of the applicant is that the applicants had filed SARFAESI Application No.12/2014 challenging the possession notice dated 03.05.2014, but the said application was dismissed for default. Again the applicant had filed application No.6/2015 and same was also dismissed for default. The applicant had again filed application No.55/2015 which is still pending before this Tribunal. The further say of the applicant is that the applicants had filed SARFAESI Application No.12/2014 challenging the possession notice dated 03.05.2014, but the said application was dismissed for default. Again the applicant had filed application No.6/2015 and same was also dismissed for default. The applicant had again filed application No.55/2015 which is still pending before this Tribunal. The applicants has also submitted that respondents inspite of having knowledge that the impugned property also mortgaged with IDBI bank by suppressing such materials facts issued auction notice dated 16.02.2016 fixing on 18.03.2016 as date of auction. The further say of the applicant is that boundary of the schedule property has been published in the auction notice is wrongly shown as on the North the Land is bounded by Nizara Path and not Jawahar Nagar Road, as such wrongful description of immovable property has been given. The further say of the applicant is that as per Rule 8 Sub Rule (6) of SARFAESI Rule, 2002, the authorized officer shall serve Notice of thirty days for sale of immovable secured asset of the borrower before effecting sale of the immovable property. But no such notice has been served upon the applicants. The say of the applicant is that in view of the such gross and serious infirmities, the applicants will suffer irreparable loss and injury if the auction sale to be conducted on 18.03.2016 is not stayed. The respondents No.1 & 2 have filed the written objection and submitted that the application has not been supported by affidavit and hence the application is liable to be dismissed. The say of the respondents no.1, 7, 2 is that the applicants have created mortgage by executing Regd. Memorandum of Mortgage being Deed No.1918, Serial No.6553 dated 02.06.2011 wherein photograph and finger impression of the applicants are give (Annexure-A). The further say of the respondents No.1 & 2 is that the respondents have taken actions as per provisions of SARFAESI Act, 2002 and rules made thereunder and has not violated any of the provisions. The demand notice u/s 13(2) of SARFAESI Act, 2002 was issued and thereafter possession was taken on 03.05.2014 and same was duly received by the applicants on 03.05.2014 itself (Annexure-F). The possession notice dated 03.05.2014 was duly published in the 2 (two) leading newspapers on 09.05.2014 (Annexure-D & E). The demand notice u/s 13(2) of SARFAESI Act, 2002 was issued and thereafter possession was taken on 03.05.2014 and same was duly received by the applicants on 03.05.2014 itself (Annexure-F). The possession notice dated 03.05.2014 was duly published in the 2 (two) leading newspapers on 09.05.2014 (Annexure-D & E). The applicants have already admitted that they had filed SARFAESI Application No.12/2014 and 6/2015 which were dismissed for default. During the argument, the learned counsel for the respondents No.1& 2 ahs submitted that Application No.55/2015 was also dismissed by this Tribunal on 04.03.2016. The further say of the respondents No.1 & 2 that they have given the same boundary of the property in the e-auction notice which were mentioned by the applicants themselves in the Regd. Mortgage Deed and in the Affidavit dated 07.11.2008 filed by the applicants (Annexures-A & G). They have also submitted that e-auction notice dated 16.02.2016 was duly served upon the applicants on 17.02.2016 itself (Annexure-J) and also duly published in 2 (two) leading newspapers (Annexure-H & I). They have also submitted that when they came to know that the applicants had taken loan from other banks by creating mortgage of the same immovable property, they have lodged FIR on 20.12.2014 (Annexure-B). The further say of the respondents No.1 & 2 is that there is no merit in the application and same should be dismissed with cost. It is observed that the applicants have admitted the sanction and availment of loan. It is also observed from the record that impugned property has been mortgaged to the respondents No.1 & 2 by way of Register Deed as security for the loan availed by the applicants No.1& 2. It is also observed that the account was classified as NPA and demand notice u/s 13(2) of the SARFAESI Act, 2002 has duly been issued. The respondents No.1 & 2 have taken possession on 03.05.2014 which was duly served upon the applicants and same was also published in 2 (two) leading newspaper on 09.05.2014. It is also observed that Application No.12/2014, 6/2015 and 55/2015 have already been dismissed for default. It is also observed that boundary mentioned in the e-auction notice is the same which has been provided and mentioned in the Regd. Mortgage Deed and in the Affidavit dated 07.11.2008 filed by the applicants. It is also observed that Application No.12/2014, 6/2015 and 55/2015 have already been dismissed for default. It is also observed that boundary mentioned in the e-auction notice is the same which has been provided and mentioned in the Regd. Mortgage Deed and in the Affidavit dated 07.11.2008 filed by the applicants. It is further observed that e-auction sale notice dated 16.02.2016 has duly been served upon the applicants on 17.02.2016 itself and e-auction sale notice has been published in the 2 (two) leading Newspapers. It is also observed that respondents No.1 & 2 have also lodged FIR against the applicants for committing a fraud for taking loan from other banks by mortgaging the same immovable property as security. It is also observed in the e-auction notice that in the terms and conditions it has been clearly mentioned that the property will be sold “as is where is and as is what is basis.” In view of the above, I don’t find that the respondents No.1 & 2 have not prima facie violated any of the provision of the SARFAESI Act, 2002 and rules made thereunder. The applicants have failed to make out any prima facie case for intervention of this Tribunal at this stage and to stay e-auction sale notice. In view of the above, M.A. No.38/2016 (In Application No.17/2016) is devoid of merit and is liable to be dismissed.” According to the petitioner, as the post of Chairman of Debts Recovery Appellate Tribunal, Kolkata, is vacant since last one year, all appeals are pending without consideration. The petitioner submits that if auction of property will not be stayed, great irreparable loss will be caused. The above quoted order of the Debts Recovery Tribunal reveals that the petitioner has committed fraud by mortgaging one property with different banks for obtaining loans illegally. In fact, First Information Report has also been registered against the petitioner. The fact that the petitioner did mortgaged the same property with different banks for obtaining loans illegally could not be denied by its counsel. This being the situation, we are not inclined to entertain the present petition under Article 226 of the Constitution of India. It is accordingly dismissed.