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Judgment
Heard the learned counsel for the parties.
The appellant was respondent no. 2 in the writ
petition filed by Allahabad Bank (hereinafter referred to as the
Bank) being C.W.J.C. No. 25525 of 2013, which was disposed of
by the learned Single Judge on 03.11.2014.
The Bank had challenged certain orders of the
Presiding Officer, Debts Recovery Tribunal (respondent No. 4)
and prayed for the following reliefs :
"That this petition is being filed for the issuance of writ, in the nature of certiorari for quashing the order dated 29.08.2013, passed in M.A. No. 320/2013 by the respondent no. 1 and also the order dated 26.06.2013 passed in M.A. No. 484/2012 which has arisen out of the order dated 13.09.2012, passed in S.A. No. 97/2012 by the Presiding Officer of the Debts Recovery Tribunal, Patna as contained in Annexures 4, 8, 9 of this petition, whereby and whereunder the learned Tribunal was pleased to reject the prayers of the petitioners and further directed them to comply the order dated 26.06.2013, passed in M.A. No. 484/2013."
The Bank had assailed the impugned order
basically on the ground that the appellant was a loanee of the
Bank. A loan of Rs. 3 lakhs was sanctioned in the year 2005, but
no substantial amount was deposited by the loanee for more than
six years thereafter. The Bank thus, initiated proceedings under
the SARFAESI Act (hereinafter referred to as the Act) and a
notice under Section 13(2) of the Act was given to the appellant,
but having not repaid the Bank''s dues, proceeding under Section
13(4) of the Act was initiated by the Bank taking symbolic
position of the property in question and thereafter auction sold.
The plea taken by the Bank was that the sale of mortgaged asset
of the appellant had already been completed way back in the year
2011 and the successful auction purchaser, who is respondent no.
5, had thereafter sold the same to respondent nos. 6 and 7 in the
year 2012, as such, a 4th party right had already been created.
Against the said auction of the year 2011, the
appellant moved the Tribunal in S.A. 97/2012 wherein the
Presiding Officer by order dated 13.09.2012 directed the
appellant to pay the entire amount within a specified period and
also pay 9% interest and 5% penalty on the auction purchase
money and Rs. 1 lac as additional compensation to the auction
purchaser, if 3rd party is not created (emphasis supplied).
It may be noted that already a 4th party right had
been created by the auction purchaser by execution of Sale Deed
No. 17579 dated 09.06.2012 in favour of respondent nos. 6 and 7
much before the order came to be passed in SA 97/2012. Again
an opportunity was given to the appellant by the Tribunal under
order dated 26.06.2013, passed in M.A. 484/2012 wherein the
appellant was again given liberty to pay the entire amount due to
the Bank within a specified period, although, it was noticed by
the Tribunal in its order dated 26.06.2013, passed in MA
484/2012, which arose out of SA 97/2012 dated 13.09.2012 that
3rd party (purchaser) had already appeared. When the Bank
moved before the Tribunal in MA 320/2013 for recall of the
order dated 26.06.2013, passed in MA 484/2012 and 13.09.2012,
passed in SA 97/12, the Tribunal again rejected the same by
order dated 29.08.2013. This is what brought the Bank before
this Court by filing writ application.
Learned counsel for the appellant challenged the
order dated 03.11.2014, passed in the writ application stating
therein that there is violation of Rule 8(1) of the Security Interest
(Enforcement) Rules, 2002 (hereinafter referred to as the Rules),
as the notice for sale of immovable secured assets as per Section
13(4) of the Act and 8(1) of the Rules has not been followed and
the possession notice has not been properly affixed. He further
submits that there is violation of Rule 8(2) of the Rules also,
which vitiates the entire auction proceedings. For this
proposition, he relied on the judgment of the Hon''ble Supreme
Court in the case of Mathew Varghese Vs. M. Amritha Kumar
and others since reported in (2014) 5 SCC 610 relying on
paragraphs 29.4, 31, 33.3, 34, 35, 42, 53 stating therein that by
non-observance of the provisions of Rules 8(1), 8(2) of the
Rules, the Bank violated his right of redemption by denying him
adequate opportunity and time to repay the borrowed sum and
such action of the Bank acting surreptitiously in selling the
property without informing them, has been set aside by the
Hon''ble Apex Court.
From perusal of the order of the Hon''ble Apex
Court in the case of Mathew Varghese (supra), the contention of
the appellant is of no avail as the order of the Hon''ble Supreme
Court was passed on an entirely different set of facts where one
day after the SARFAESI action was upheld by the Tribunal
against the borrower, the Bank sold the property of the loanee the
very next day without any intimation to the borrower. The facts
of the present case is entirely different. The appellant had been
given SARFAESI notice way back in the year 2010-11 and he
had ample opportunity to save his property at the relevant time.
Yet another challenge was made that the
property was undervalued as the valuer has valued the property
for Rs. 9,52,000/- for land and building in the month of January,
2011 and being a six year old construction together with the land,
the reserve price was Rs. 7,62,240/-, whereas the property was
worth more than Rs. 30 lakhs.
The learned Single Judge has taken into
consideration this aspect of the matter as well, because he has
minutely examined the technical valuation report dated
10.01.2011 and has taken note of the fact that the property of the
appellant has been sold to respondent no. 5 at Rs. 8.1. lakhs,
which was the highest bid which took place way back in the year
2011, who had purchased the property in question, which was
resold to respondent nos. 6 and 7 by a registered sale deed dated
09.06.2012 before the order dated 13.09.2012 was passed by the
Tribunal in the first round of litigation in SA 97/2012
whereunder the Tribunal had given an opportunity to the
appellant to pay the entire dues as well as the interest, penalty
and compensation to the auction purchaser (respondent no. 4) if
3rd party is not created, which was already created. In fact, a 4th
party right had also been created by that time.
All these aspects have been gone into by the
learned Single Judge thoroughly and extensively, hence, the
order of the learned Single Judge does not suffer from any error.
Appeal is dismissed.