ANILKUMAR BATLA Vs. ALLAHABADBANK

JUDGEMENT

(1.) THE challenge in this writ petition is primarily to the judgment dated January 13, 2014 passed by the Debt Recovery Appellate Tribunal (Appellate Tribunal in short), Delhi, disposing of two appeals, numbers being 447/2010 and 50/2011 in S.A. 47/2008 filed by the petitioners herein namely Anil Kumar Batla and Randhir Singh Yadav and Smt. Archana Mishra, the respondent No.2 herein, respectively, whereby the Appellate Tribunal allowed the Appeal No. 50/2011 and S.A.No. 47/2008 in favour of the respondent No. 2 and consequently, dismissed the Appeal No. 447/2010.

(2.) SOME of the relevant facts are, in the month of February, 2004, the respondent No. 1 -bank has sanctioned a credit facility of Rs. 2.10 Crores to M/s. Sudha Fashions Pvt. Ltd. Smt. Archana Mishra, respondent No. 2 herein stood as a guarantor and mortgaged her property bearing No. 353, Sector 19, Faridabad, Haryana. One Ashok Kumar Dubey, also stood guarantor and mortgaged his property. On failure to repay the loan amount, the respondent No. 1 -bank had declared the Account as Non - Performing Asset (NPA) on May 31, 2006 and thereby issued a demand notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, in short) to the borrower, guarantors/mortgagers, claiming an amount of Rs. 1,72,14,846/ -. Symbolic possession of property was taken on July 04, 2007 by the respondent No. 1 -bank. On July 22, 2008, the respondent No. 1 -bank issued notice for sale of property with reserve price of Rs. 75 lakhs and invited bids by August 29, 2008. The sale notice was published on July 26, 2008 in Delhi Edition of Newspapers namely Economic Times and the Rashtriya Sahara. Smt. Archana Mishra, respondent No. 2 filed S.A. No. 47/2008 before the Debt Recovery Tribunal -II, Delhi (DRT -II, Delhi in short) on August 19, 2008, challenging the notice and actions of the bank. Since there was no restraint order by the DRT, auction took place as per schedule on August 29, 2008. The petitioners herein were the highest bidders having bid the property for Rs. 84.2 lakhs. Their bid was accepted and after confirmation of sale and deposit of the consideration amount, the sale certificate was issued in their favour on October 03, 2008. The physical possession of the property was taken. As the property had been sold, sale consideration received by the bank, the sale certificate had been issued, the Bank filed IA 880/2008 in S.A. No. 47/2008 for dismissing the S.A. as having become infructuous. Smt. Archana Mishra, respondent No. 2 also filed an application being IA 887/2008 challenging the action, confirmation of sale and also sought a direction for de -sealing of the property. Simultaneously, it appears, the respondent No. 2 had filed a writ petition bearing No. 8968/2008 before this Court, which was dismissed as withdrawn with liberty to approach the DRT for relief available under law and a direction that status quo of the property in question be maintained. Respondent No. 2 filed IA 14/2009 before the DRT in S.A. No. 47/2008 for setting aside the sale as well as for restoring the possession of the property and redemption of mortgage on payment of Rs. 95 lakhs against the sale price of Rs. 84.20 lakhs. She simultaneously sought impleadment of the auction purchasers, the petitioners herein and for restraining the bank from handing over the possession to them. The IA 14/2009 was disposed of by the DRT with a direction that if the respondent No. 2 herein, deposits Rs. 95 lakhs within a period of 15 days, possession of the property in question be restored to her. She deposited the money on 9.6.2009. Against this order, the petitioners herein filed an appeal before the Appellate Tribunal i.e. Appeal No. 164/2009. The Appellate Tribunal, vide order dated July 2, 2009 directed the respondent No. 2 Smt. Archana Mishra, not to create any third party interest, but, the prayer for delivery of possession was not granted in favour of the petitioners herein. Thus, it is apparent that the petitioners never came in physical possession of the property. It may be stated here, the bank restored the possession to Smt. Archana Mishra, the respondent No. 2 herein. Being aggrieved by the order dated July 2, 2009, the petitioners filed a writ petition before this Court number being 10262/2009, which was disposed of by this Court with a direction to the Appellate Tribunal to dispose of appeal No. 164/2009. The Appellate Tribunal allowed the appeal filed by the petitioners herein vide order dated July 05, 2010 and Smt. Archana Mishra, the respondent No. 2 herein was directed to surrender possession of the property in question to the petitioners. Smt. Archana Mishra filed a writ petition being W.P.(C.) No. 4434/2010 before this Court against order dated July 05, 2010, on which, this Court stayed the direction for delivery of possession. Since the DRT had reserved its order in the Securitization Application for orders, this Court disposed of the writ petition on November 16, 2010 with directions which is reproduced as under:

(3.) IT is the submission of Mr. Sanjiv Kakra, learned counsel for the petitioners is that the findings arrived at by the Appellate Tribunal is based on presumptions and conjectures and contrary to the law. It is also his submission that the conclusion of the Appellate Tribunal that the newspaper Rashtriya Sahara has no East Delhi edition and its Delhi edition does not have sufficient circulation in Faridabad was on a mere statement of the counsel for the respondent No.2. He states that a newspaper published in Delhi is also circulated in Delhi -NCR and no newspaper has special publication/edition for Delhi -NCR. According to him, the conclusion of the Appellate Tribunal that the Delhi edition of Rashtriya Sahara did not apparently have sufficient circulation in Faridabad locality is perverse. He states that the requirement of the proviso to Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 [Enforcement Rules, in short] has sufficiently been complied and the contrary finding is unsustainable. He would also state that the Appellate Tribunal has not considered in proper perspective, the certificate issued by the Sales and Marketing Department of the Rashtriya Sahara, New Delhi that the Delhi edition had circulation in Faridabad which is a proof to show that the notice was properly published. He would further state that the respondent No. 2 herein had filed an amended Securitization Application, wherein, she has specifically admitted that she has knowledge about the sale of the mortgaged property by sale notice dated July 22, 2008 and as such, she cannot agitate the issue that newspaper containing the sale notice had no circulation in Faridabad inasmuch as the purpose of the notice was only to inform public at large about sale of the property.