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  • dtd.22-04-19 u/s 13 (2) of sAMAESI Act
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Judicial Summary: Debts Recovery Tribunal, Lucknow — SA No.33 of 2021 (Order dated 16-06-2022)

Factual and Procedural Background

The applicant (a company) filed S.A. No.33 of 2021 on 15-01-2021 seeking to quash auction/sale proceedings that arose from sale notices dated 11-11-2020 and 11-12-2020 and to restrain the opposite parties from confirming the auction or issuing sale certificates in favour of any person. The proceedings were heard and final arguments were recorded on 07-06-2022; the Tribunal pronounced its order on 16-06-2022 (Presiding Officer: A. H. Khan).

The applicant avers that it had obtained credit facilities from the respondent bank against mortgaged properties, but due to illness and business problems the account became irregular and was declared an NPA. A demand notice dated 22-04-2019 under Section 13(2) of the SARFAESI Act was received and the applicant submitted a representation and deposited Rs.41.80 lakhs up to 14-02-2020. The applicant contends that the bank did not serve possession notice, took possession without proper notice/publication/affixation, issued sale notices while proceedings before the District Magistrate (DM) were pending, and proceeded with auctions (scheduled on 09-12-2020 and 28-12-2020) despite an OTS proposal dated 04-12-2020. The applicant also alleges absence of a valuation report and sale at a "throw away" price.

The bank's response (counter-affidavit dated 29-10-2021) asserts that the application is not maintainable (initially alleging lack of a Board resolution authorising the applicant's signatory), states the account was classified as NPA on 19-04-2019 and demand notice was served on 22-04-2019, and avers that possession notice dated 26-06-2019 was issued, affixed and published, and that physical possession was taken in compliance with an order dated 16-01-2020 of the DM. The bank further avers that valuation was obtained (valuation report dated 17-06-2020), sale notices dated 11-11-2020 and 11-12-2020 were received personally by Shri Rohit Kumar (the authorised signatory per Board Resolution on record), affixed and published, auctions were held on the scheduled dates, sale certificates were issued after receipt of sale consideration and possession delivered to purchasers. The bank denies that any OTS proposal was submitted by the applicant (contrary to the applicant's claim).

Legal Issues Presented

  1. Whether the auction/sale proceedings pursuant to sale notice dated 11-11-2020 (auction of 09-12-2020) were illegal and liable to be quashed on the grounds alleged by the applicant.
  2. Whether the auction/sale proceedings pursuant to sale notice dated 11-12-2020 (auction of 28-12-2020) were illegal and liable to be quashed on the ground that the publication did not provide a clear 15-day notice (or otherwise failed to comply with mandatory requirements).
  3. Whether any procedural irregularities (such as alleged non-service/ non-publication/ non-affixation of notices or absence of valuation) observed by the applicant vitiate the sale, particularly where purchasers have deposited sale consideration and sale certificates have been issued.

Arguments of the Parties

Applicant's Arguments

  • The applicant contends it availed credit facilities and mortgaged properties; the account became NPA due to illness and business issues.
  • The bank issued a demand notice (22-04-2019) but did not properly serve possession notice; the bank took possession without serving notice, without publishing or affixing possession notices.
  • The bank issued sale notices dated 11-11-2020 and 11-12-2020 and proceeded with auctions despite pending proceedings before the DM and despite the applicant having submitted an OTS proposal on 04-12-2020 which was not considered.
  • The bank did not give clear 30 days' sale notice in respect of movable assets and sold the properties at a throw-away price without obtaining the required valuation report.
  • The applicant asserts lack of knowledge about auctions scheduled on 09-12-2020 and 28-12-2020 (apart from a message received upon some amount being credited to the loan account).

Bank's Arguments

  • The bank initially challenged maintainability, alleging that the SA was filed by an unauthorised person and no Board resolution was on record (the record later contained a Board Resolution authorising Shri Rohit Kumar).
  • The bank states the account was NPA on 19-04-2019 and demand notice dated 22-04-2019 was served; the applicant failed to clear dues thereafter.
  • Possession notice dated 26-06-2019 was issued to borrowers, affixed on the secured assets and published in newspapers; physical possession was taken in accordance with law after the DM's order dated 16-01-2020 (u/s 4 SARFAESI Act).
  • The bank obtained a valuation report dated 17-06-2020 prior to sale and issued earlier sale notices (24-09-2019; 16-12-2019) which failed for lack of bids; sale notice dated 11-11-2020 (for auction on 09-12-2020) and sale notice dated 11-12-2020 (for auction on 28-12-2020) were personally received by Shri Rohit Kumar (authorised signatory), affixed on the secured assets and published; auctions proceeded and sale certificates were issued after full realization; physical possession was handed over to successful bidders.
  • The bank denies receipt of any OTS proposal from the applicant that required consideration prior to sale (it disputes the applicant's claim of submitting OTS on 04-12-2020).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
L&T Housing Finance Ltd. vs. Iris Trishul Developers (Civil Appeal No.3413 of 2020; judgment dated 27-10-2020) Where the secured creditor has followed the procedure prescribed under the SARFAESI Act and the person affected has knowledge leaving no ambiguity, a trivial objection cannot invalidate the action unless the person shows substantial prejudice from the procedural lapse; factual analysis is required in each case (paras 18–20 as quoted). The Tribunal relied on this principle to hold that the objections raised by the applicant were trivial/technical and that the bank had complied with the statutory procedure; therefore the auction pursuant to the 11-11-2020 notice (auction 09-12-2020) could not be set aside on the pleaded grounds.
ARCE Polymers Pvt. Ltd. vs. M/s Alphine Pharmaceuticals Pvt. Ltd. (Supreme Court; judgment dated 03-12-2021) The Court observed (para 18 as quoted) that where borrowers engage in disingenuous conduct, give unfulfilled assurances, remain unwilling to pay, and where the property has changed hands, the borrower may be held to have waived or be estopped from challenging certain statutory requirements (specifically Sec.13(3A) of SARFAESI in that case). The Tribunal cited this authority to support the proposition that procedural objections may be waived or not permitted to be pressed where conduct and facts warrant such an outcome; it used the case to reinforce that technical objections did not invalidate the sales here.
AO, Bank of Baroda vs. M/s ARIT Solutions Pvt. Ltd. (DRAT, Allahabad; judgment dated 14-09-2020) The DRAT observed that where the auction purchaser has deposited the entire sale price and a sale certificate has been issued, a valuable right is created in favour of the purchaser; technical irregularities (typographical or procedural) may be ignored if they do not result in prejudice to the borrower. The Tribunal relied on this principle to note that sale certificates had been issued and sale consideration deposited, and therefore technical irregularities (if any) were not sufficient to upset the sales where no prejudice was shown.
Rafeeq Ahmed vs. State of U.P. & Ors. (AIR 1999 Allahabad 272) The High Court held that borrowers/guarantors who are not interested in repayment should not be permitted to misuse procedural requirements to frustrate recovery; procedural delays/irregularities that do not cause prejudice may be ignored. The Tribunal cited this decision as part of the line of authorities supporting the view that minor procedural irregularities which do not cause prejudice are not fatal to the sale process.
M/s National Rice and General Mills & Ors. vs. Bank of India & Ors. (AIR 2009 P&H 129) The Punjab & Haryana High Court held that minor irregularities or errors in the process that do not go to the root of the case and do not result in loss to borrowers should be ignored, especially where borrowers never demonstrated willingness to pay dues. The Tribunal invoked this authority to reinforce its conclusion that minor procedural defects (if any) did not invalidate the auctions in the absence of demonstrable prejudice or loss to the applicant.

Court's Reasoning and Analysis

The Tribunal's analysis proceeded in a sequential, fact-focused manner:

  1. Scope of challenge: The Tribunal first observed that the applicant's relief clause did not challenge the demand notice or possession notice; it sought only to quash the auction/sale proceedings pursuant to the two specific sale notices (11-11-2020 and 11-12-2020).
  2. Evidence of compliance: The Tribunal noted documentary evidence on record showing that the bank obtained a valuation report dated 17-06-2020; that the sale notice dated 11-11-2020 was personally received (signed) by Shri Rohit Kumar (the authorised signatory per Board Resolution filed in the SA); and that the 11-11-2020 sale notice was affixed on the secured asset and published in the newspaper. On this basis the Tribunal held that the bank had followed the mandatory provisions of the SARFAESI Act in respect of the 11-11-2020 sale notice and the auction held on 09-12-2020, and dismissed the applicant's challenge to that auction as devoid of merit.
  3. Challenge to the 11-12-2020 sale notice: The applicant's main contention regarding the 11-12-2020 notice was that the newspaper publication did not give a clear 15 days' time before sale. The Tribunal examined this contention, considered the precedent relied on by the applicant (E.K. Rajan v. Canara Bank from the Kerala High Court) but found the facts distinguishable: the 11-12-2020 sale notice was personally received by the authorised person, affixed on the asset and published in two newspapers. The Tribunal therefore did not accept the argument that the publication defect (as alleged) invalidated the sale.
  4. Authoritative guidance and application: The Tribunal relied on binding and persuasive authorities (including the Supreme Court's decision in L&T Housing Finance Ltd. v. Iris Trishul Developers and ARCE Polymers) which state that trivial or technical objections cannot invalidate properly conducted proceedings where the affected party had knowledge and cannot show substantial prejudice. The Tribunal also relied on DRAT Allahabad and High Court authorities which emphasize that where an auction purchaser has deposited the sale price and a sale certificate has been issued, a valuable right is created and minor procedural irregularities may be ignored in the absence of prejudice.
  5. Conclusion of analysis: Applying those principles to the facts and documents on record, the Tribunal concluded there was no illegality in the bank proceeding with the auction of 28-12-2020 pursuant to the 11-12-2020 sale notice. The Tribunal found that the alleged irregularities were not of such a nature as to vitiate the sales when weighed against the evidence of personal receipt, affixation, publication, valuation and issuance of sale certificates after realization of sale consideration.

Holding and Implications

Holding: The Tribunal dismissed the applicant's challenges to both the auction held on 09-12-2020 (pursuant to sale notice dated 11-11-2020) and the auction held on 28-12-2020 (pursuant to sale notice dated 11-12-2020) as being devoid of merits and substance. The S.A. stands finally disposed of.

Implications:

  • The direct effect of the order is that the auctions/sales challenged by the applicant are not set aside by the Tribunal; the bank's actions in conducting the auctions and issuing sale certificates (as recorded on the file) are upheld.
  • The Tribunal's decision rests on documentary evidence of personal receipt, affixation, publication, prior valuation and the legal principle that trivial or technical objections will not invalidate a sale unless the claimant shows substantial prejudice. The order does not purport to create new law but applies existing Supreme Court and other appellate authorities to the facts on record.
  • The opinion does not record any broader, novel precedent being laid down; it confines itself to applying settled legal principles to the facts before it and disposing of the S.A.

Order authored by: (A.H. Khan), Presiding Officer, Debts Recovery Tribunal, Lucknow. File to be consigned to record room.

    M S R K PAR BOILING PVT LTD v. INDIAN BANK (ALLAHABAD BANK)

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    IN THE DEBTS RECOVERY TRIBLTNAL LUCKNOW

    Present: A. H. Khan, Presiding Officer Date of order 16-06-2022

    S.A. No.33 of 2021

    Present:-

    Counsel for the applicant

    \!r.\ajiv Saran Counsel for the bank

    Mr,Vinay Shanker Counsel for Auction Purchaser

    Mr.Shashank Shukla

    1. Final arguments were heard on 07-06-2022 and case was reservecl for pronouncement of orders.

    2. The applicant has filed the present SA on 15-01 -2021praying to quash the entire auction/sale proceeding in pursuance of notice dtd.11-11-20 and ll-12-20 and to direct the opposite parties not to confirm the auction and issue sale certificate in favour of any person.

    3. The case of the applicant, in brief, is thathe had availed credit facility from respondent bank and had mortgaged the subject properties to secure the same. That due to illness and improper functioning of business, he could not rnaintain account satisfactorily and account was declared as NPA. That bank issued demand notice dtd.22-04-19 u/s 13 (2) of sAMAESI Act to which applicant submitted its representation before competent authority and also deposited an amount of Rs.41.80 Lacs till 14-02-20. That bank never served possession notice on applicant and had also filed a case u/s 14 SARFAESI Act before DM, Shravasti for taking physical possession of the secured asset and the said case has been decided in favour of bank vide order dtd.16-01-20 passed by DM. That bank had filed application u/s 14 SAMAESI Act befbre DM, Bahraich for taking physical possession of remaining mortgaged property. That bank has taken possession of the property without serving any notice and had also not published the said possession notice in newspaper and had also not affixed the same. That bank had issued sale notice dtd.l l-ll-20 despite the fact that proceeding before DM are still pending. That applicant had also submitted OTS proposal on 04-12-20 but without considering the same, bank had issued sale notice dtd.ll-12-20 fixing the auction on 28-12-20. That bank had not issued any clear 30 days sale notice in r/o movable assets and had sold the properties. That applicant had filed rvrit petition NO.4(IWB) of 2021before Hon'ble High Court which was dismissed vide order dtd.05-01-21 for want of statutory alternate remedy. That applicant has no knowledge regarding auction proceedings scheduled on 09-12-20 and 28-12-20 and when some amount was credited in the loan account, a message came in applicant's mobile. That bank had sold the

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    property at a throw away price without obtaining any valuation report as required under the SARFAESI Act.

    4. Bank had filed its counter affidavit on29-10-21wherein it is stated that the SA is not maintainable as no Board Resolution of the company has been filed by the applicant and the SA filed by an unauthorised person is liable to be dismissed. That account of the applicant was classified as NpA on 19-04-19 and thereafter demand notice dtd,.22-04-19 was served upon applicants however no further measures were taken by bank during lockdorvn period and applicant failed to deposit the dues ofthe bank. That possession notice dtd.26-06-19 was issued for all the mortgaged properties to all borrowers including the applicant and was also affixed on secured assets as well as published in newspapers. That bank has taken physical possession of the properties in accordance with law in compliance of order dtd.16-01-20 passed by DM u/s 4 SARFAESI Act and has also obtained valuation report before putting the properties to sale. That earlier sale notice dtd.24-09-19 and 16-12-19 could not materialize for want of bids and therefore 3'd sale notice dtd.l 1-11-20 was issued fixing date of auction as 09-12-20 and the said sale notice was personally received by Shri.Rohit Kumar under his signature. The said sale notice was also affixed on secured asset and also published in newspaper. In the auction held on 09-12-20, two properties were auctioned in favour of highest bidder and after receiving full sale amount, sale certificate was issued on 24-12-20 and possession was also handed over. That no OTS proposal was ever submitted by applicant and therefore there is no question of considering the same. That for the remaining three properties, bank again issued sale notice on ll-12-20 fixing the auction on 28-12-20 and the said sale notice was again personally received by Mr.Rohit Kumar. The sale notice dtd.ll-12-20 was also affixed on secured asset and published in trvo newspapers also. That all the three properties were sold out in the auction held on 28-12-20 and since highest bidders have deposited the entire sale amount, sale certificates were issued by the bank and physical possession of the said properties has also been delivered to them. That the right of redemption is available to the before issuance of sale notice but in the present case, the entire sale proceedings have been concluded. That there is no illegality in the action of the bank and all mandatory provisions of SARFAESI Act and rules made thereunder have been duly followed by the bank.

    5. Duly considered submissions and perused the records. Counsel tbr the applicant and auction purchasers have filed written arguments which are on record.

    6. Perusal of Para 7 Relief Clause reveals that applicant has not challenged demand notice and possession notice and had only praved to quash the entire auctiorVsale proceeding in pursuance of notice dtd. l1-11-10 and 11-12-20. It is seen that before putting the properties to sale, bank had 0 --(-

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    obtained valuation report dtd.17-06-20 (Annex.cA-3) from approved valuer. Perusal of Annex.cA-4 reveals that notice for sale dtd.rl-il-20 (page 66 to

    68) was received by Mr.Rohit Kumar personally by putting his signature. The said Mr.Rohit Kumar is the authorised signatory of the Applicant company by virt,e of Board Resolution dtd,.r2-or-2r filed at page 4gA of the SA. The said sale notice was affixed on the secured asset (page 69 to 77 ) and was also published in newspaper (page 7g to g0) of Annex.cA-4 filed by the bank alongwith counter affidavit. Thereafter bank had issued notice fbr sale on ll-12-20 (Annex.CA-6 page g2 & g3) which was sent to applicant vide postal receipt dtd.rr-r2-2} (page g4) and the same was affixed on secured asset (Page 85 to 93) and was also pubrished in two newspapers (Page 94 to 96) of Annex.CA-4.

    7. with regard to sale notice dtd.ll-lr-2O the only contention of the applicant in the SA is that despite proceeding pending before DM, bank had issued the sale notice dtd.lr-11-20. The said sale notice dtd.1l-11-20 was personally received by the authorised person of the Applicant company who has filed the present SA also by virtue of Board Resolution passed in his favour. Further, sale notice dtd.l l-11-20 was affixed on secured asset and was also published on l3-l l-20. Thus, there is no dispute with regard to sale notice dtd.ll-ll-20 and it has to be held that bank had followed all the mandatory provisions of SARFAESI Act and there is no illegality in the action of the bank in conducting the auction on 09-12-20 pursuant to sale notice dtd.l l-11-20 and accordingly challange to the same is dismissed beino devoid of merits and substance.

    8. with regard to Sale notice dtd.ll-r2-zo, the main contention of the counsel for applicant is that in the publication of sale notice dtd.l5-12-20 made by the bank, no clear 15 day's time has been given to the applicant and therefore the sale is bad in law. He has relied on the judgment passed by Hon'ble High court of Kerala in the case of E.K.Rajan vs. Ao, canara bank and stated that clear 15 days notice was required to be given by the bank before putting the property to sale. perusal of the said judgment and other judgments relied by the applicant reveals that the facts ofthe present case are different from the said cases. In the present case, Sale notice dtd.lr-12-20 has been personally received by the authorised person of the Applicant company who has filed the present sA also by virtue of Board Resolution passed in his favour. The said sale notice dtd.ll-12-20 was duly affixed on secured asset and was also published in the newspapers.

    9. Hon'ble Supreme Coun in the case of tWs L&T Housing Finance Ltd. vs. Irzlls Trishul Developers - Civil Appeal No.34l3 of 2020 vide judgment dtd.27-10-20 has held as under :-

    Para 18 - It may be relevant to note that the respondents (borrower) did not deny advancement of loan, execution of facility agreement, their

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    liability and compliance of the procedure being followed by the secured creditor (appellant) prescribed under the SARFAESI Act. Para 19 - In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of SAMAESI Act by secured creditor, in our considered opinion, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudice if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions. Para 20 - Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SAMAESI Act.

    10. In the case of ARCE polymers pvt. Ltd. vs. iws Alphine Pharmaceuticals Pvt. Ltd. the Hon'ble Supreme Court vide its judgment dtd.03-12-21 in Para 18 has held that "...........The bank proceeded with the auctions under SARAESI Act on 28-03-18 and 14-06-18. The borrowers then kept silent. As the earlier auctions failed the bank issued notice dtd. 20-08- 19 informing the borrower about the 4th auction to be held on I I -09- I g at a reduced reserve price. The borrower challenged the action taken by the bank after the subject property had changed hands and 3d par1.. interest had been created. Taking into consideration the entire facts of the case, rvhich perspicuously reflect disingenuous conduct on the part of the borroyer ro gain indulgence, un fulfilled assurances and promises, their unwillingness ro pay, and in the light of the law laid down by this Court, we are of the view that the borrower has waived and is estopped from challenging violation of Sec.13(3A) of the SARFAESI Act and hence the first issue is decided in favour of the bank....."

    1 1. In the case of AO, Bank of Baroda Vs. IWs ARIT Solutions pvt. Ltd., Hon'ble DRAT, Allahabad vide its judgment dtd. 14-09-20 in para 19 has held as under :-

    "Para19- It is also to be seen that the auction purchaser has deposited the entire sale price and the sale Certificate has been issued, thus a

    valuable right has been created in favour of the auction purchaser. On the other hand, the SA applicant is not entitled for any relief on account of technical irregularity in affixation of the demand notice and the typographicat error in issuance of the sale notice, which can be ignored in view of the

    'f.,

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    principle laid down by the Hon'ble Allahabad High Court in Rafeeq Ahemd Vs. State of U.P. & Ors. AIR 1999 Allahabad272. lnthe said judgment, the Hon'ble High Court has held that if the borrowers/guarantors are not interested in repayment of the loan, they should not be permitted to play with the procedure of law. Further, the Hon'ble Punjab & Haryana High Court in the case of M/s National rice and General Mills & Ors. Vs. Bank of India & Ors., AIR 2009 P&H 129 has held that if any minor irregularities or error occurred in the process and those do not go to the root cause of the case and had not resulted in any loss to the borrowers, are to be ignored, particularly when they have never shown their inclination to pay the dues with interest."

    12. In view of above settled position of law, I do not find any illegalityin the action of the bank in proceeding with the auction ot28-12-20 pursuant to sale notice dtd.11-12-20 and therefore challange to the same is dismissed being devoid of merits and substance.

    13. There being no other issue for adjudication, the presentSA stands finally disposed of.

    File be consigned to record roorn.

    (A.,H. Khan)

    Presiding OfficeL

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    M S R K PAR BOILING PVT LTD v. INDIAN BANK (ALLAHABAD BANK)
    (Jun 16, 2022)