Smt. Rameshwari Devi vs Canara Bank

R. D. Khare, Chairperson

A mention has been made on behalf of the appellant stating that there is urgency in the matter, as 02.12.2022 has been fixed for taking over the physical possession of the property in question by moving incorrect affidavit before the Chief Metropolitan Magistrate mentioning therein that no proceeding is pending before any court of law, whereas the Civil Suit No. 1206/2017 is pending before the Additional District Judge (S.D.), Agra and S.A. No. 210/2021 is also pending before the DRT, Allahabad.

Learned counsel for the appellant submits that the appellant is neither borrower nor guarantor in the present case and it is vehemently argued that a fraud was committed by the borrower in connivance with the respondent-Bank, notice of which was also taken in the criminal side and charge-sheet has already been filed by the police authority before the concerned court and a civil suit was also filed by the appellant before the Civil Court, in which the parties are also appearing. Since there is no interim protection granted by the Civil Court, therefore, the respondent-Bank has sold the property in question, which is a residential accommodation, in which the appellant resides and by making falls statement before the CMM, the Bank has obtained the order dated 22.09.2011 and in pursuant thereto, possession of the property in question is likely to be taken by the Bank tomorrow itself.

The report of the Registrar dated 01.12.2022 shows that no pre-deposit has been made. It has also been mentioned that dues of the Bank as on 30.11.2016 was Rs. 70,75,567.60 along with interest. It is contended that the property has been sold by the Bank for Rs. 56.10 lacs, which is more than 75% of the amount due. It is thus argued that waiver application deserves to be allowed.

Learned counsel for the respondent-Bank submits that a Writ-C No. 33065/2022, which was filed by son of the appellant before the Hon’ble High Court, has been dismissed. It is contended that once the property, which is under mortgage, has been sold and the sale certificate has been issued in favour of the Auction Purchaser, it is obligation of the Bank to take possession of the property in question and handover the same to the auction purchaser, but the appellant has filed the present appeal only to stall the proceedings of the Bank.

Learned counsel for the respondent-Bank further submits that the CMM/DM has power under section 14 of the SARFAESI Act to assist the secured creditor in obtaining the possession as well as the documents related to the secured asset even with the help of any other subordinate to him as per the judgment passed by the Hon’ble Apex Court in Balkrishna Rama Tarle Dead through LRS & Anr. Vs. Phoenix ARC Private

Limited and others, decided on 26.09.2022. The Hon’ble Apex Court has held that the powers exercisable by CMM/DM under section 14 of the SARFAESI are ministerial and section 14 does not involve any adjudicatory process qua the points raised by the borrowers against the secured creditor for taking possession of the secured assets. It is thus contended that CMM/DM cannot go into the merits of the case and is only to see the compliance of all the formalities by the secured creditor referred to in the proviso in section 14(1) of the SARFESI Act. Therefore, the present proceeding drawn by the appellant is not maintainable.

In reply, the learned counsel for the appellant submits that the impugned orders have been obtained by the respondent-Bank on the basis of false averment made before the Tribunal below and before the concerned authority stating that no proceedings are pending before any court of law. It is also contended that the only relief, which is being pressed, is for direction to the Tribunal below to consider and decide the S.A. within the time as specified by this Tribunal and in the meantime, the possession of the appellant may be protected, as the appellant is an old lady of 70 years.

After hearing the learned counsels for the parties, the present appeal is finally disposed off with direction to the DRT, Allahabad to consider and decide the S.A. No. 210/2021 most expeditiously in accordance with law, preferably within three months from the date of production of certified copy of this order. Till then, all the parties are directed to maintain the status qua qua the property in question as it exists today. It is made clear that the said relief shall automatically stand vacated after expiry of the aforesaid period of 3 months.