M N YUVAKUMAR Vs. INDIAN BANK

JUDGEMENT

(1.) This writ petition is filed under Articles 226 and 227 of the Constitution of India aggrieved by the order dated 11.04.2017 in RA(SA) No.151 of 2011 passed by the Debt Recovery Appellate Tribunal, Chennai by which the order dated 23.01.2009 in ASA No.232 of 2008 passed by the Debts Recovery Tribunal, Bengaluru, is set aside.

(2.) The petitioner claims that he is the owner in possession of the property bearing site No.220, Khatha No.189/188/220 at Coffee Board Layout, Hebbal Kempapura Village of Byatarayanapura CMC, Yelahanka Hobli, Bengaluru, measuring 40 x 30 feet (for short 'the schedule property'). The 2nd respondent - M/s. Arihant Sarees had availed financial assistance from the 1st respondent - Indian Bank. It is stated that the schedule property was offered as collateral security for the financial assistance granted to respondent No.2 by respondent No.1. The 2nd respondent failed to repay the financial assistance taken which resulted in initiating recovery proceedings by the 1st respondent - Indian Bank. It is stated that the 1st respondent - Indian Bank initiated recovery action under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the 'SARFAESI Act'). The Bank had issued sale certificate dated 30.11.2007, which was registered on 26.12.2007 in respect of the schedule property. It is the claim of the petitioner that no notice from the 1st respondent - Indian Bank either under Sec. 13(2) of the SARFAESI Act or possession notice was issued to the petitioner herein. When it came to the knowledge of the petitioner that the schedule property has been sold, he challenged the same before the Debt Recovery Tribunal (for short 'the DRT') in ASA No.232 of 2008. The petitioner states that physical possession of the property is with the petitioner and Bank has not taken possession of the schedule property. It is also stated that the petitioner filed a private complaint in PCR No.21735 of 2006 before the 4th Additional Chief Metropolitan Magistrate Court, Bengaluru, against respondent Nos.1, 3 and other three persons, on the ground that they have played fraud in obtaining the property as collateral security for the loan availed by 2nd respondent. It is stated that the value of the property is more than Rs.40,00,000.00 and sale has been conducted for a sum of Rs.24,59,000.00. It is stated that the sale has taken place in total violation of the Securitization Rules 2002, 30 days sale notice as required under the Rules, has not been issued. Therefore, the entire procedure is vitiated. While accepting the property as collateral security, the Bank has not followed proper procedures. The DRT by its order dated 23.01.2009 allowed the appeal filed by the petitioner in ASA No.232 OF 2008 holding that the second publication of sale notice issued by the Bank is without giving 30 days time and was of the view, that there is violation of Rule 8 of the Securitisation Rules. Aggrieved by the same the 1st respondent - Indian Bank filed appeal before Debt Recovery Appellate Tribunal, Chennai, (for short 'the DRAT') in RA(SA) 151 of 2011. The DRAT by its order dated 11.04.2017 allowed the appeal and set aside the order of the DRT dated 23.01.2009 and affirmed the sale dated 31.07.2007. Aggrieved by the same, the petitioner is before this Court in this writ petition.

(3.) Heard learned counsel for the petitioner and learned counsel for respondent No.1 and learned counsel for respondent No.4. Perused the petition papers.