Sanjay Kumar And Ors vs Authorised Officer And Ors

CWJC No. 2135 of 2018

Heard learned counsel for the petitioner as well as learned counsel for the respondents.

The present writ petition has been filed for quashing of auction sale notice published in the Hindi daily newspaper “Dainik Bhaskar†dated

24.01.2018 (Annexure-1) as well as the judgment dated 17.10.2017 passed by the Presiding Officer, Debts Recovery Tribunal, Patna in S.A. No. 140

of 2017 (Annexure-2).

Learned counsel for the petitioner has sought to challenge the validity of the impugned judgment of the Debts Recovery Tribunal, inter alia, on the

ground that the notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (for short, “SARFAESI Actâ€) as well as Section 13(4) of the SARFAESI Act had not been validly served and hence, the impugned action

in respect of auction which is said to be fixed today is wholly arbitrary. It is stated that the notice under Section 13(2) dated 04.04.2017 had not been

validly served having been received by one Paras Nath Singh, as will be evident from the certificate dated 25.09.2017 issued by the Postal

Department (Annexure-5). It is stated that the said Paras Nath Singh is neither a borrower nor a guarantor in respect of the loan in question. It has

further been submitted that the Bank has illegally proceeded with substituted service of notice without following the procedure with regard to the

alleged refusal of service of notice under 13(4) of the SARFAESI Act.

Learned counsel for the respondent-Bank, on the other hand, submits that the notice under Section 13(2) of the SARFAESI Act was admittedly

served on the addressee as evident from two other certificates, both dated 05.09.2017, issued by the Superintendent of Post Offices, Sasaram to the

effect that the registered letters had been delivered to the addressee on 07.04.2017. Similarly, the issue relating to the procedure required to be

adopted upon refusal of the notice u/s 13(4) has also been disputed by the respondent-Bank.

Learned counsel for the respondent-Bank has also drawn the attention of this Court to the written report filed before the Officer Incharge Nagar

Thana, Sasaram, Rohtas by the respondent Bank of Baroda as well as by Punjab National Bank, Sasaram Branch alleging various acts of fraud and

diversion of funds by the petitioner and his family members. It is pointed out that the petitioner and his family members have indulged in serious acts of

conspiracy and fraud in having offered security by way of three immovable properties, out of which two immovable properties had already been sold

prior to being so offered by way of security.

Having heard learned counsel for the parties and on careful consideration of the materials available on record, this Court is not inclined to interfere

in the matter.

As far as issue of validity of service of notice under Section 13(2) of the SARFAESI Act is concerned, the different certificates issued by the

postal department will require further investigation into disputed facts, which this Court is not inclined to enter into in its writ jurisdiction. There are

serious accusations of fraud having been committed by the petitioner in conspiracy with his close family members. Moreover, the impugned judgment

dated 17.10.2017 of the Debts Recovery Tribunal, Patna (Annexure-2) is admittedly amenable to statutory appeal before the Debts Recovery

Appellate Tribunal under Section 18 of the SARFAESI Act which has not been availed of by the petitioner even after lapse of about four and half

months since the judgment was passed in the presence of the petitioner. The issue relating to the procedure for service of the notice u/s 13(4) in case

of its refusal can well be agitated in appeal.

In the above circumstances, the writ petition stands dismissed.

CWJC No. 2159 of 2018

The facts in the present case are almost identical to the facts of CWJC No. 2135 of 2018, with the difference that the petitioner herein is a

guarantor and mortgager of the loan in which Sri Sanjay Kumar (petitioner of CWJC No.2135 of 2018) is the main borrower. It is submitted that the

present petitioner has also conspired in diversion of funds along with the said Sri Sanjay Kumar and his family members as his name specifically

appears in the written report by Punjab National Bank filed before the Officer Incharge Nagar Thana, Sasaram, Rohtas on 06.07.2017.

In the above view of the matter, no case for interference by this Court is made out. This writ petition also stands dismissed.