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2018 DIGILAW 922 (KAR)

Nishar Ahmed Abubakkar S/o Mr. Abubakkar v. Dena Bank Represented By Its Authorized Officer

2018-08-27

DINESH MAHESHWARI, KRISHNA S.DIXIT

body2018
ORDER : 1. By way of this writ petition, the petitioner seeks to question the orders dated 02.11.2016 and 05.05.2017, as passed in RA(SA) No.196/2010, whereby the Debts Recovery Appellate Tribunal (‘DRAT’), Chennai, has declined to interfere in the order dated 26.03.2010 passed by the Debts Recovery Tribunal (‘DRT’), Bengaluru, in SA.No.572/2009; and has also declined to entertain the review application. 2. The relevant background aspects of the matter are that the petitioner had availed financial assistance from the respondent – Bank in the form of Housing Loan to the tune of Rs. 75 lakhs and Cash Credit facility to the tune of Rs. 10 lakhs while mortgaging two immovable properties. The petitioner having failed to repay the loan amount as per schedule, the accounts in question were categorized as non-performing asset. The Bank adopted the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (‘SARFAESI Act’) and ultimately, issued possession notice dated 07.09.2009. The proceedings adopted by the Bank were sought to be questioned by the petitioner before the DRT, while asserting that the Bank had not supplied the details of loan account and repayment; that he was not served with notices; and that the notice published in the newspaper was vague and lacking in material particulars. The challenge to the Bank’s action before the DRT was rejected, inter alia, with the following observations: “4. On verification of the pleadings put forth by the appellant as well as the respondent bank and also the documents available on record, in this particular case it is a fact that the respondent bank initiated the proceedings under the Securitisation Act by issuance of demand notice as well as the possession notice which were not served upon the appellant. As such it were published in accordance with law. Further there are no latches on the part of the respondent bank while initiation of the proceedings under the Securitisation Act. Further in this case the appellant failed to establish what are the material irregularities said to have been committed by the respondent bank while initiation of the proceedings under the Securitisation Act. As such the present appeal preferred by the appellant is liable to be dismissed.” 3. Before the DRAT, again, the issues were raised on behalf of the petitioner about want of proper service of the notices. As such the present appeal preferred by the appellant is liable to be dismissed.” 3. Before the DRAT, again, the issues were raised on behalf of the petitioner about want of proper service of the notices. The DRAT found no case for interference, while observing, inter alia, as under: “10. Considering the records produced by the parties and after hearing the rival contentions, I am of the opinion that the Notices under Section 13(2) and 13(4) of the Act are not suffered from any material irregularities causing prejudice to the Appellant. These were sent at the addresses given by the party to the Bank. Prima facie the liability of repayment of both the loans is on the one and the same person having knowledge of steps and proceedings initiated by the Authorised Officer of the Respondent Bank right from the beginning. It is true that in the impugned Order, these documents could have been dealt with or appreciated with much details, however, there appears no lapse on the part of the Authorised Officer of the Respondent Bank in issuing Notices under Sections 13(2) and 13(4) of Act. 11. In all, the Appellant failed to repay the loans in spite of repeated demand, the Authorised Officer of the Respondent Bank took recourse by initiating the proceedings under SARFAESI Act by issuing Notices under Sections 13(2) and thereafter under Section 13(4) of the Act by broadly following the Act and Rules made there under. It appears that the Appellant had tried to avoid the service of notices made on him by the Post. 12. As discussed above, I find no infirmity in the Order passed by the Ld. Presiding Officer, DRT, Bengaluru. Hence, the Appeal filed by the Appellant is liable to be dismissed. Accordingly, the Appeal RA (SA) 196/2010 is dismissed.” 4. The review petition was also dismissed after the 5. Seeking to challenge the orders aforesaid, learned counsel for the petitioner has strenuously argued that there had been no intention of the petitioner to create the mortgage deed in this matter; that the respondent sent the notices at incomplete address of the petitioner and hence, they were not served; and that for want of service of notice and for want of compliance of the requirement of Security Interest (Enforcement) Rules, 2002, the proceedings in question deserve to be set aside. 6. 6. Having given thoughtful consideration to the submissions made and having examined the record, we are unable to find any reason to consider interference in the orders impugned. 7. The material placed on record makes it clear that the notices for proceedings under the SARFAESI Act were sent to the petitioner at three different addresses as follows: Tribunal found no case for interference. "(i) Mr A Nishar Ahamed, S/o Sri Abubakkar, No.18, 2nd Cross, Manjunatha Nagar, Magadi Road, Bangalore -560 023. (ii) Mr. Nishar Ahamed, BDA No.9, Sy No.34 of Madiwala, I Stage, B T M Layout, Madivala Dollars Scheme, Bangalore (v) Mr A Nishar Ahamed, Proprietor -M/s New Metro Home Appliances, Srinivasa Complex, Opp. New Manjunatha Stroes, Bhavani Road, Hebbagodi Post, Bangalore -560 099." 8. The notices sent to the petitioner at his Magadi Road address were returned unserved with the remark “left not known”. The notices sent at the other two addresses were returned with the remarks either of “incomplete” or of “insufficient” address. 9. It is not the case of the petitioner that the respondent – Bank had stated such addresses at its own whims and imaginations or that the aforesaid were not the addresses given by him to the respondent – Bank. In the given set of facts and circumstances, the notices for the petitioner were published in the newspapers. The petitioner has chosen not to place the copies of such newspaper publications on record. Viewed from any angle, we are unable to find any error or material irregularity in the proceedings adopted by the respondent – Bank. 10. Interestingly, the present writ petition has been filed by the petitioner, while stating his particulars and address as under: "MR. NISHAR AHMED ABUBAKKAR Son of Mr. Abubakkar Aged about 45 years Prop. M/S New Metro Home Appliances, Carrying on business at No.1851, 12th Main Road, II Phase R P C Layout Vijayanagar, Bangalore -560 040." The address so given by the petitioner in this writ petition does not appear compatible with the addresses that he had given earlier to the Bank. 11. In an overall view of the matter, conduct of the petitioner does not inspire confidence where he has admittedly remained in default in repayment of loan amount and has, by its own action of not furnishing complete and specific address, only shown want of bonafides. 12. 11. In an overall view of the matter, conduct of the petitioner does not inspire confidence where he has admittedly remained in default in repayment of loan amount and has, by its own action of not furnishing complete and specific address, only shown want of bonafides. 12. In any case, the DRT and the DRAT have examined the contentions of the petitioner on relevant considerations before finding no case for interference. The orders impugned do not appear suffering from any jurisdictional error so as to entertain this petition. 13. In view of the above, this petition fails and is, therefore, dismissed. No costs.