Syed Nazmul Hasan & Anr. vs Authorized Officer, Bank Of Baroda & Anr.

JUSTICE R. D. KHARE, CHAIRPERSON

The present appeal has been filed under section 18 of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") against the judgment and order dated 26.06.2014, whereby the Securitization Application No. 220/2011 filed by the appellant has been dismissed.

Brief facts of the matter are that the appellant was granted a housing loan of Rs. 6.00 lacs by the respondent-Bank, for which the appellant mortgaged his house no. 38, plot of Khasra No. 163, Bahadurpur, Lucknow by depositing original title deed with the Bank. Since the appellant did not maintain the financial discipline, therefore, the account was classified as NPA and after issuance of demand notice and possession notice, the respondent-Bank issued auction sale notice scheduling the auction of the property in question on 18.03.2011, which was published in the newspapers on 13.02.2011. It appears that the appellant had requested the Bank vide letter dated 15.03.2011 stating therein that he is ready to pay full amount of the dues of the Bank. The property was sold on 18.03.2011 to the respondent no. 2 and after deposition of the sale consideration, the sale certification was issued and the sale deed was also executed on 22.03.2012.

It transpires that the appellant challenged proceedings of the bank by filing a writ petition no. 2889 of 2011 before the Hon'ble High Court, Lucknow Bench, which was dismissed vide order dated 29.03.2011 on the ground of alternative remedy and further directed that in case the petitioner files appeal within a period of two weeks from the date of receipt of a certified copy of this order, the same shall be considered and disposed off expeditiously on merits. Accordingly, the present appeal was filed by the appellant on 05.04.2011 before the Tribunal below, stating inter-alia that neither the demand notice issued by the Bank under section 13(2) of the SARFAESI Act was received nor the same was sent by the Bank and further, he came to know about the sale notice on 13.02.2011, when the same was published in the Hindustan Newspaper. The Tribunal below vide order impugned has dismissed the S.A. of the appellant. Being aggrieved by the said order, the present appeal has been filed by the appellant.

Learned counsel for the appellant submitted that no notices under sections 13(2) and 13(4) of the SARFAESI Act, 2002 were served upon the borrower. It was further contended that the respondent-Bank has sold the property in question in very low price, but the Tribunal below without considering these facts has dismissed the S.A. of the appellant vide order impugned, therefore, the findings recorded by the Tribunal below in the same are perverse, hence the order impugned is not sustainable. It was, therefore, prayed that the order impugned may be set aside and the appeal may be allowed.

Learned counsel for the respondent-Bank submitted that there was delay in filing the S.A. by the appellants and all the notices have duly been served upon them, which has been recorded by the Tribunal below in the order impugned. It was, therefore, prayed that the appeal filed by the appellant may be dismissed with heavy costs.

Learned counsel for the respondent-auction purchaser submitted that he is bona fide purchaser of the property in question as he has deposited entire sale consideration with the respondent-Bank in accordance with the Act and Rules made thereunder. It was thus prayed that the order impugned passed by the Tribunal below does not call for any interference by this Appellate Tribunal, therefore, the appellant filed by the appellant may be dismissed with heavy costs.

I have considered the contentions of the learned counsels for the parties and perused the record.

Admittedly, a housing loan of Rs. 6.00 lacs was granted by the Bank and the same availed by the appellant. It has been contended on behalf of the appellant that no notice under section 13(2) of the SARFAESI Act was served and he came to know about the proceedings of the Bank, when the auction sale notice was published in the Hindustan newspaper on 13.02.2011. In this regard, the finding of the Tribunal below that the appellant has not raised any objections or illegalities committed by the Bank under the SARFAESI Act and the only contention of the appellant in the S.A. is that he is ready to deposit the dues of the Bank is contrary to the record, as it is evident from para 9 of the S.A. of the appellant, which is at page no. 20 of the memo of appeal, wherein it is clearly pleaded that no notice under section 13 of the SARFAESI Act, 2002 has been received by the appellant nor the same has been sent by the bank and the Bank has published the sale notice in Hindustan Newspaper on 13.02.2011, from which the appellant came to know that the Bank wants to sell the property in question illegally at throw-a-way price.

It is true that the appellant has not whispered even a single word about the possession notice under section 13(4) of the SARFAESI Act, but the question with regard to service of demand notice as well as the process of auction sale was well before the Tribunal below for its adjudication, but the Tribunal below without considering these aspects of the matter has dismissed the S.A. of the appellant by passing the order impugned. Thus, it is a fit case to be remanded back to the Tribunal below for considering and deciding it afresh.

The contention of the respondent-bank that the S.A. filed by the appellant was barred by time, is not tenable, because the said issue has already been decided by the Tribunal below while passing the order impugned. If the Bank had any grievance against the said part of the order impugned, by which the delay has been condoned, the Bank ought to have challenged the same by filing the appeal before the competent court, but it did not do so, therefore, the Bank cannot be permitted to raise the said issue in the present appeal, which has been filed by the appellant-Borrower.

In view of the aforesaid, the order impugned is set aside and the case is remanded back to the Tribunal below for deciding it afresh in accordance with law after affording proper opportunity of hearing to the parties concerned without being influenced by the observation made hereinabove. Consequently, the appeal filed by the appellant is allowed with no order as to costs.

A copy of this judgment be forwarded to the parties as well as the DRT concerned and be also uploaded on the e-drt portal.