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Judgment
S. Ravi Kumar, J
This Appeal is preferred against order dated 2.5.2016 in Securitisation Application (S.A.) No. 178/2015 on the file of Debts Recovery Tribunal No. II, Ahmedabad (DRT). Respondents herein filed S.A. No. 178/2015 to set aside action of the Bank i.e. appellant herein initiated under provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act). It is not in dispute that respondents herein availed various credit facilities from the appellant Bank in the year 2011 and as a security one of the respondents herein mortgaged his property. It is also not in dispute that accounts of the respondent herein were declared as Non-Performing Assets (NPA) in the year 2013. Thereafter Bank issued notice under Section 13(2) of the SARFAESI Act and then filed an application under Section 14 of the SARFAESI Act before District Magistrate, Surat and obtained order dated 1.7.2015, it is also not in dispute that District Magistrate, Surat, directed Mamlatdar, Surat City, Udhna, to take possession of the secured assets.
It is the contention of the respondent herein that Bank took possession of the property without waiting for 14 days period as indicated in the notice dated 21.10.2015 in compliance of direction of the Hon'ble High Court of Gujarat in Writ Petition (PIL) No. 68 of 2012, as such action of the Bank is illegal and liable to be set aside.
On the other hand, it is the contention of the Bank that District Magistrate, Surat, passed an order on 1.7.2015 and in pursuance of that order Mamlatdar issued notice on 16.7.2015 for taking possession of the secured asset which is in compliance of the directions of Hon'ble Gujarat High Court. According to it Bank never received notice dated 21.10.2015 and said notice is a concocted one to achieve their object. Bank also contended that possession is taken after complying 14 days notice therefore, objection of the respondent herein is not tenable. Learned Presiding Officer examined these contentions with reference to material on record and recorded a finding that notice dated 17.7.2013 under Section 13(2) of the SARFAESI Act is legal and valid but possession taken on 26.10.2015 is not in accordance with direction of the Hon'ble High Court of Gujarat and as physical possession was taken without expiry of 14 days notice period. Tribunal below has found fault with the action of taking physical possession of the secured property and directed the Bank to restore back physical possession to respondents herein within a period of 30 days. Now, aggrieved by the said order, Bank preferred present Appeal.
Heard both sides.
Advocate for appellant submitted that Tribunal below erred in declaring physical possession dated 26.10.2015 as illegal and directing Bank to restore back physical possession to respondents herein. Advocate for appellant submitted that Mamlatdar and Executive Magistrate, Surat City, issued 14 days notice dated 16.7.2015 a per direction of the Hon'ble High Court of Gujarat, and possession was taken long after expiry of 14 days. It is submitted that Tribunal below wrongly relied on notice dated 21.10.2015 which is said to have been issued by Mamlatdary, but Bank specifically disputed that notice and it is the specific contention of the Bank that alleged notice dated 21.10.2015 has been managed by respondents and, therefore, placing reliance on such notice is not correct. It is further submitted that notice dated 16.7.2015 and another notice dated 21.10.2015 bear same outward number and that itself supports stand of the Bank that notice dated 21.10.2015 is stage managed. Advocate further submitted that direction of the Hon'ble High Court of Gujarat giving 14 days, notice stands complied by issuing notice dated 16.7.2015, therefore, there is no necessity of issuing any second notice and this is another circumstances to support the stand of the Bank, and in view of this, objection raised by respondents herein are not tenable, therefore, impugned order dated 2.5.2016 is liable to be set aside.
On the other hand, Advocate for respondents submitted that Mamlatdar having issued notice dated 16.7.2015 did not take possession of the property in pursuance of that notice, therefore, again issued notice dated 21.10.2015 wherein it is clearly indicated that as per the judgment of the Hon'ble High Court of Gujarat notice is given to the occupier of the property and after 14 days of service of said notice procedure for taking possession and handing; over the same to the Bank will be done but, admittedly without waiting for 14 days, possession was taken on 26.10.2015 itself, therefore, action of taking physical possession is illegal and the Tribunal below has rightly set aside the said action. It is further submitted that in the panchnama for taking possession of property specific reference is made to the notice dated 21.10.2015, therefore, contention of the Bank that it is a managed notice cannot be accepted. It is further submitted that Tribunal below after verifying the case file of Mamlatdar, recorded a finding that respondents herein informed Authorised Officer of the Bank and Mamlatdar after receipt of notice dated 21.10.2015 that period indicated in notice dated 2:1.10.2015 is not completed for taking possession and on that ground physical possession notice dated 26.10.2015 is quashed and set aside and that here are no grounds to interfere with the same.
I have perused material papers including written arguments of the Bank. The main question is whether 14 days notice was given to the respondents herein prior to taking physical possession in compliance of the direction of the Hon'ble High Court of Gujarat. With regard to issue of notice dated 16.7.2015 there is no dispute. It is also not in dispute that possession was not taken immediately after expiry of 14 days after issuance of first notice dated 16.7.2015. Main contention of the Bank is that Mamlatdar has not issued notice dated 21.10.2015 and said notice is managed by the respondents herein and having taken such a plea burden is on the Bank to prove it. Except taking a plea and making allegations. Bank has not produced any material to show that Mamlatdar has not issued any notice dated 21.10.2015 and it was managed notice as contended learned Presiding Officer to appreciate the contentions of the parties with regard to notice dated 21.10.2015 issued a notice to the Mamlatdar on 7.1.2016 to produce record pertaining to this case and in compliance of that order, office of Mamlatdar produced entire record in Case No. 52 of 2014 before the Tribunal below on 10.2.2016 through Mr. Prashant D. Rasani, Revenue Talati. It appears that learned Presiding Officer has sought clarification from the Revenue Talati about these notices who informed that notice dated 16.7.2015 was issued by Ms. N.H. Patel, the then Mamlatdar-cum-Executive Magistrate, Surat City, Udhna and the second notice dated 21.10.2015 was issued by Mr. V.D. Patel, Mamlatdar-cum-Executive Magistrate, Surat City, Udhna. So it is clear from the record that notice dated 21.10.2015 is emanated from the office of Mamlatdar, Surat City in which it is clearly stated that possession of the property will be taken after expiry of 14 days of service of notice, therefore, entire contention of the Bank that notice dated 21.10.2015 is a managed one and it is not a genuine one is falsified from the record of Mamlatdar. When the record of the Mamlatdar establish that there was a second notice issued on 21.10.2015 contention of the Bank with regard to correctness of this notice cannot be accepted and Tribunal below rightly discarded said contention of the Bank. Further as seen from Panchnama a specific reference was made about notice dated 21.10.2015. When Bank is relying on Panchnama for taking possession on 26.10.2015 and when a reference is made about notice dated 21.10.2015 minimum expected from the Bank is to first verify from the office of Mamlatdar as to the correctness of this notice before making any kind of allegations with regard to notice dated 21.10.2015 that too while asserting through reply affidavit before the Tribunal.
Mamlatdar, Surat, recorded proceedings in Case No. 52 of 2014 as Executive Magistrate in discharge of his official functions. It is well settled principle that every official proceeding and entries in the Government records are true and genuine untill it is established that they are made up entries. In other words there is a presumption in favour of Government records as to genuineness but it is a rebuttable presumption. As seen from record Bank neither rebutted the presumption nor established with evidence that notice dated 21.10.2015 is a brought-up one.
In my view, Bank acted irresponsibly and raised a plea like a private person in respect of Government records without verifying correctness and genuineness of such record. When the learned Presiding Officer has recorded a finding with regard to notice dated 21.10.2015 after verification of revenue records of Mamlatdar, Bank without producing any further material as to the correctness and genuineness of notice dated 21.10.2015, preferring Appeal and reiterating the very same stand, in my view, is nothing but abuse of process of law for which the Bank has to be penalised with exemplary costs.
For these reasons. I am of the view that Tribunal below rightly declared possession taken on 26.10.2015 is illegal as it is in direct contravention of the orders of the Hon'ble High Court of Gujarat in Writ Petition No. 68 of 2012 and the appeal is nothing but the abuse of process of law, therefore, Appeal is liable to dismissed.
For the reasons stated above, Appeal is dismissed with exemplary costs of Rs. 20,000/- (Rupees Twenty thousand only).