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Judgment
R. S. Kulhari, Chairperson
This appeal has been preferred by the appellant against the order dated 29.10.2014 passed by the DRT Allahabad, whereby the application for condonation of delay was rejected and consequently, the S.A. was dismissed.
The essential facts in brief are, that the respondent-Bank granted certain credit facility to M/s Krishna General Stores under the proprietorship of the appellant. The appellant mortgaged the immovable property to secure the loan. The loan was not repaid as per terms of the agreement. Hence, the Bank issued demand notice dated 19.11.2010 under section 13(2) of the SARFAESI Act followed by the possession notice dated 08.02.2012 under section 13 (4) of the said Act and symbolic possession of the property was taken. Thereafter, the sale notice was issued on 01.02.2013 fixing the date of auction on 12.03.2013. However, the reserve price was re-fixed by another intimation letter dated 11.03.2013. The date of auction was re-fixed for 09.04.2013 and the same was published in Danik Jagran Newspaper dated 22.03.2013. The property was auctioned in favour of the respondent No. 2 on 09.04.2013.
The appellant filed the S.A. on 04.03.2014 challenging the auction held on 09.04.2013 stating that the appellant received the notice dated 30.01.2014 issued by the ADM on 16.02.2014 requiring his appearance on 17.02.2014, thus the proceedings were challenged thereafter. An application for condonation of delay in filing the S.A. was also filed. The Tribunal below vide impugned order observed that all proceedings of the Bank were within the knowledge of the appellant, who has filed all the documents with the S.A. and no sufficient explanation has been given for the delay of about 10 months and accordingly, the application for condonation of delay as well as the S.A. was dismissed. Being aggrieved by the said order, the present appeal has been filed.
Learned counsel for the appellant submitted that although, the sale notice dated 01.02.2013 was served fixing the date of auction on 12.03.2013, but re-fixation of the auction dated 09.04.2013 was not intimated. Hence, the appellant was not aware about the auction conducted on 09.04.2013. After receipt of notice from the ADM, the appellant enquired from the Bank, then it came to his knowledge that the property has already been sold and the documents annexed with the S.A. were provided by the Bank's Officer to the appellant. Thus, there was no delay from the date of knowledge of the sale and the delay, if any, was properly explained. The Tribunal below has erred in not condoning the delay. The party should not be deprived to get the matter adjudicated on merits on the ground of delay.
On the other hand, the learned counsel for the Bank contended that the appellant himself has admitted the service of demand notice, possession notice as well as the sale notice and has also stated that the date of auction was re-fixed on 09.04.2013. All the documents were attached with the S.A., which were dispatched by the Bank to the appellant at the relevant time. No explanation has been given for inordinate delay of more than 10 months, therefore, the application was rightly dismissed.
Learned counsel for the auction purchaser has adopted the arguments as advanced on behalf of the Bank and has drawn the attention of this Tribunal, particularly to the pleadings made by the appellant in paragraphs No. 6 to 9 of this appeal to show that the appellant has accepted the receipt of intimation at every stage.
Having heard the learned counsels for the parties and on perusal of record, it is undisputed that the auction was held on 09.04.2013 on the basis of the sale notice dated 01.02.2013 and the S.A. was filed on 04.03.2014. As per section 17 of the SARFAESI Act, sale notice or the auction was required to be challenged within 45 days and the delay caused in filing the S.A. beyond the limitation is required to be sufficiently explained.
In the instant case, the appellant has admitted at para 5(K) & 5(L) of the S.A. that he was duly served the possession notice dated 08.02.2012 and the sale notice dated 01.02.2013. At para 8 of the memo of appeal, it is stated that "by another intimation published in Dainik Jagaran Newspaper dated 22.03.2013, it was intimated by the Bank that the earlier date as 12.03.2013 has been re-fixed as 09.04.2013". The copy of newspaper was also submitted before the DRT as well as before this Tribunal. Apart from this, the appellant has admitted at para 4 of his written arguments submitted before the DRT as under.
"That in due course the auction proceeding was not materialized and accordingly, it was adjourned on 12.03.2013 to 09-04-2013 as per corrigendum as published on 22-03-2013 in Dainik Jagran Newspaper."
Thus, it is crystal clear that the appellant has admitted the receipt of relevant documents at the relevant time and was aware of every step taken by the Bank including the auction dated 9.04.2013. Hence, it cannot be said that the appellant was having no knowledge about the auction held on 9.4.2013.
The contention that the documents were provided by the Bank Officer appears to be an afterthought concocted story. The Bank Officer is not supposed to deliver any documents without any endorsement to the borrower. There is nothing on record that the documents were given by the Bank Officer after receipt of notice from the ADM. The appellant has not stated any reason much less the sufficient one for not challenging the auction within 45 days. Thus, the Tribunal below has rightly dismissed the application filed for condonation of delay and consequently dismissal of the S.A.
In view of the above, the appeal is liable to be dismissed. Accordingly, the same is dismissed with no order as to costs.
A copy of this judgment be forwarded to the parties as well as to the DRT concerned and be also uploaded on the e-DRT portal.