SMT SUSHMA TRIPATHI v. INDIAN BANK (ALLAHABAD BANK)

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DRT, ALLAHABAD SA 12S of2020 IJI

5. The first and second intended sale notices became infructuous as no bidder turned up but the respondent Bank has sold the property on the basis of the third intended sale notice dated 05.01.2021. It is further submitted that in the notice dated 05.01.2021, intended sale notice is mentioned which cannot be termed as sale notice as per the provisions contained in SARF AESI Act and Rules made thereunder. It is further submitted that intended sale notice dated 05 .01.2021 has not been affixed on the secured assets but it was published in two newspapers. It is further submitted that in the publication there is a mentioning of sale notice U/s 8

(6) while in the sale notice dated 05.01.2021 there is mention of

"intended sale notice". It is further submitted that in the sale certificate dated 28.01 .2022, the respondent Bank has mentioned that they have handed over the physical possession of the property to the auction purchaser which is total incon-ect and the physical possession of the property in question is still with the S. Applicant by virtue of the order of this Tribunal dated 07.04.2022.

6. It is further submitted that the pasted sale notice dated 14.09.2020 is resembling with the sale notice dated 05.01.2021 as there is no difference between these two pasted sale notices. It means the photographs filed by the respondent Bank is of intended sale notice dated 14.09.2020. The property has been sold on 30.01.2021 and whether the auction purchaser has deposited entire amount or not is not known to the S. Applicant. It is further submitted that on the basis of the intended sale notice dated 05 .01.2021, the property could not be sold as there is no such provision in SARF AESI Act and Rules. The format prescribed under the SARF AESI Act, 2002 and Rules have not been complied with by the respondent Bank.

7. It is further submitted by the learned counsel of the S. Applicant that the respondent Bank obtained the order of the CMM, Kanpur on 29.03.2022, it is a fact that opportunity of hearing was given by the learned CMM, Kanpur before passing the order dated 29.03.2022. Request is made that since the proper procedure has not been followed by the respondent Bank while taking symbolic possession and physical possession of the property in question, therefore, the SA may be allowed and entire SARF AESI actions initiated by the Bank may be quashed and set aside.

8. It is submitted by the Ld. Counsel of the respondent Bank that entire SARF AESI actions initiated by the respondent Bank are in accordance with the provisions as prescribed in SARF AES! Act, 2002 and Rules. The account of the S. Applicant had been declared NP A on 29 .10.2019 as per the guidelines of the Reserve Bank of India. Thereafter, the respondent Bank has issued the demand notice on 18.11 .2019 (Annexure CA-04) which was served upon the S. Applicant. No representation has been filed therefore, the respondent Bank has issued the symbolic possession notice on 07.02 .2020 (Annexure CA-05) which was served, affixed and published in newspaper (photocopies of affixation and publication filed) and also admitted by the Ld. Counsel of the S. Applicant. Further, the respondent Bank has got the property valued on 01.02.2020 and 02.06.2020 (Annexure CA-09) and on the basis of the said valuation report, the reserve price of the property in question ~

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DRT, ALLAHABAD SA 125 of2020 !JI has been fixed. Further, the respondent Bank has also issued the first notice on 01.07.2020 (Annexure CA-10), it is a fact that at top of the said notice the word ''Notice of intended sale" is mentioned while in the body the entire required descriptions such as date, place, reserve price and description of property etc. are mentioned. In second sale notice dated 14.09.2020 word ''Notice of intended sale" is mentioned at the top but in the body entire relevant description has been given. However, no sale could take place on the basis of sale notice dated 01.07.2020 and 14.09.2020 as no bidder turned up. Therefore, these intended sale notices became infructuous.

9. The respondent Bank has issued third sale notice on 05.01.2021 fixing 30.01.2021 for sale, it is fact that at the top of this notice also the word "Notice of intended sale" is mentioned but in the sale notice dated 05.01.2021 the date of Demand Notice, date of taking physical possession and outstanding dues, date of auction sale etc. are mentioned. It is further submitted that in the top it is mentioned that "Notice of intended sale"

issued under Rule 6 (2) and 8 (6) of the Security Interest (Enforcement), Rules, 2002. Further, vide this sale notice, 15 days ' time was given and the property has been auction sold after 15 days.

10. It is further submitted that sale notice dated 05.01.2021 was served to the S. Applicant (postal receipt filed), proper affixation was made (photocopy of affixation filed) and the same was also published in two newspapers (photocopy of publication filed) is also admitted by the learned counsel of the S. Applicant. It is further submitted that in para 8 of the reply, it is clearly mentioned that the notice dated 05.01.2021 has been pasted on the main gate of the premises and photographs were taken (photographs filed). It is further submitted that the property has been auction on 30.01.2021 and the entire sale proceeds of Rs. 106.35 lacs has been deposited by the auction purchaser on 01.02.2021 i.e. on the next working day. Thereafter, the respondent Bank has issued the sale certificate on 28.01.2022. It is a fact that in the sale certificate it is mentioned about the delivery of possession of the scheduled property but it is written due to format only. It is submitted by the learned counsel of the respondent Bank that the word "Notice of intended sale" has also been challenged before the Hon 'ble High Court which was withdrawn by the S. Applicant. On the basis of the above submissions, the Ld. Counsel of the respondent Bank has requested that since the respondent Bank has meticulously followed the proper procedures as laid down under the SARP AESI Act,2002 and Rules made thereunder, therefore, the SA filed by the S. Applicant may be dismissed with costs.

11. The Ld. Counsel of the respondent auction purchaser submitted that the auction purchaser bonafidely participated in the auction sale and being successful bidder deposited entire amount in time. Request is made that the respondent Bank may be directed to handover the physical possession of the property in question.

12. Considered the rival contentions of the parties and perused the records.

13. The Tribunal has to examine as to whether any of the measures referred to in sub-sectio~ section 13 of SARF AES! Act, taken by

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ORT, ALLAHABAD SA 125 of2020 IJJ the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.

14. The perusal of records reveals that after classifying the account of the S. Applicant NPA on 29.10.2019 as per the guidelines of the Reserve Bank of India, the respondent Bank initiated recovery proceedings against the S. Applicant by issuing Demand Notice on 18.11.2019 and since inspite of service, the S. Applicant failed to clear the dues, therefore, the respondent Bank issued Symbolic Possession Notice dated 07 .02.2020 and the symbolic possession notice was served, affixed and published in the newspaper as admitted by Ld. Counsel of S. Applicant. The respondent Bank issued first sale notices dated 01.07 .2020 but the sale could not be materialized due to non-participation of the bidder and, as such, the respondent Bank again issued Sale Notice dated 14.09.2020 but again the sale could not be held as no bidder participated. Thereafter, the respondent Bank issued third sale notice on 05.01.2021, fixing 30.01.2021 for sale of the property in question. The property has been auction sold on 30.01.2021 and the entire sale proceeds has been deposited by the auction purchaser on the next working day. The respondent Bank has issued the sale certificate dated 28.01.2022. There is admission of the learned counsel of the S. Applicant that the sale notices and possession notice were served upon the S. Applicant and it was also published in two newspapers.

15. So far as the sub1nission of the Ld. Counsel of the S. Applicant regarding discrepancy of mentioning of "intended sale notice" in all the sale notices including the sale notice dated 05.01.2021 and in the publication of the same mentioning of sale notice U/s 8 (6), is concerned, it is true that there is a mention of "intended sale notice" in the sale notices, but in the sale notice dated 05.01.2021, all the required information such as date of Demand Notice, date of taking symbolic possession and outstanding dues, date of auction sale etc. are mentioned. Therefore, only on account of mentioning the word "Notice of intended sale" in the notice dated 05.01.2021, the same cannot be held to be defective as there is also a mention that "Notice of intended sale" issued under Rule 6 (2) and 8 (6) of the Security Interest (Enforcement), Rules,

2002.

16. Regarding submission of the Ld. Counsel of the S. Applicant that the pasted sale notice dated 14.09.2020 is resembling with the sale notice dated 05.01.2021 and there is no difference between these two pasted sale notices, is concerned, the Bank has specifically mentioned in paragraph 8 of it' reply that the sale notice dated 05.01.2021 has been pasted on the main gate of the premises and the respondent Bank has also filed the photographs of the pasting. Hence, this objection of the S. Applicant is also not tenable.

17. The other objection raised by the Ld. Counsel of the S. Applicant that in the sale certificate dated 28.01.2022, the respondent Bank has mentioned that they have handed over the physical possession of the property to the auction purchaser which is total incorrect as the physical ~

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DRT, ALLAHABAD SA 125 of2020 IJJ possession of the property in question is still with the S. Applicant by virtue of the order of this Tribunal dated 07 .04.2022, is concerned, the Ld. Counsel of the bank very fairly conceded that it was due to format and it cannot be attributed to any procedural lapse on the part of the Bank.

18. The Hon'ble Supreme Court of India, in the case of Velji Khimji and Company Vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Limited & Ors. (2008) 9 SCC 299 has held that the sale cannot be set aside unless some fraud or collusion has been proved. In the present case, no fraud or collusion has been brought to the notice of the Tribunal by anyone.

19. In view of above facts and circumstances and SARFAESI Act and Rules and having regards to the judgment of the Hon'ble Supreme Court of India, as the S. Applicant is failed to establish any procedural lapses on the part of the respondent Bank while taking measures under SARF AESI Act, 2002 and as the respondent Bank has meticulously followed the proper procedures as laid down under the SARF AESI Act, 2002 and Rules made thereunder, therefore, the SA filed by the S. Applicant is liable to be dismissed.

ORDER

The SARF AESI Application filed by the S. Applicant is hereby dismissed with no orders as to costs.

A copy of this order be furnished to the parties as per Rules. I.A. pending if any, is also disposed off accordingly. Judgment signed, sealed, dated and pronounced in the open court on this 10th Day of November, 2022.

Dictated & Corrected by me.

[B~r [~l4fu6:b

Presiding Officer Presiding Officer

Debts Recovery Tribunal, Allahabad Debts Recovery Tribunal, Allahabad

VK