SHAKEENA Vs. BANK OF INDIA

JUDGEMENT

(1.) SINCE the impugned orders in these Writ Petitions are one and the same and the secured asset involved are same, further common issue involved in both the writ Petitions, hence, they are disposed of by this common order.

(2.) THE case of the Petitioners is that the petitioners availed loans from the 1st Respondent Bank by mortgaging their proper -ties; that they were directed to discharge the loan amount with interest at 11-75 p. a. within a period of 60 days; that the petitioner sent representations on 10-12-2004 and 30-12-2004, requesting the respondent bank to consider a one time settlement to settle the dues; that since there was no reply, the Petitioners filed S. A. Nos. 21 and 22 of 2005 before the DRT, which was dismissed; that the 2nd respondent sent a letter dated 11-11-2005, informing that the mortgaged property will be brought to sale after the expiry of 30 days from that date by public auction and they brought the property for auction on 19-12-2005; that the Petitioners approached the 1st respondent-Bank on 2-1-2006 and deposited three cheques for a total sum of Rs. 25,21,446/-to discharge the amount due and payable in respect of the notice issued to the petitioners; that the 1st respondent-Bank returned the said cheques on 4-1-2006, informing that the property had already been sold and the sale was to be confirmed on or before 17-1-2006; that the Petitioners filed la. Nos. 13 and 14 of 2006 for condoning the delay in filing the petition to restore the said Appeals, which were dismissed on the ground that the auction purchaser, who is the 3rd respondent herein, paid the entire sale consideration and the sale certificate was issued to him on 6-1-2006; that again the Petitioners sent a notice dated 13-1-2006, enclosing Demand Drafts for Rs. 25,00,000/- drawn in favour of the 2nd respondent and informed that the balance amount would be paid, which were received by the Respondents; that after having received the said Demand Drafts, instead of setting aside the sale, they sent another notice dated 6-1-2006, informing that the successful bidder has remitted the balance amount on 4-1-2006; that the Respondents ought to have proceeded with the taking possession of the mortgaged property within 30 days, especially when the mortgagor had paid the entire amount and hence, these Writ petitions have been filed.

(3.) THE case of the Respondents is that the Petitioners have availed various loans from the 1st respondent; that they defaulted in repayment of the dues of the said loans and consequently the Respondents invoked the provisions of SARFAESI Act to recover the dues by proceeding against the secured assets; that notices of demand under Section 13{2) was issued on 1-12-2004; that the petitioners received the said notices and submitted their reply, seeking time upto 5-2-2005 for payment of the dues, but they have not paid the dues and thereafter, the 1st respondent invoked Section 13 (4) of the sarfaesi Act and took constructive/symbolic possession of the secured assets on 8-2-2005; that the petitioners challenged the said auction initiated by the Respondents by filing Appeals in S. A. Nos. 21 and 22 of 2005 under section 17 of the SARFAESI Act before the Debt Recovery Tribunal and in the said Appeal, a conditional order of stay directing the Petitioners to pay a sum of Rs. 1. 50 Lakhs each, which was not complied with, as a result of which, the interim order granted in the said Appeal was vacated and later the said Appeals were also dismissed for default on 28-9-2005; that the 1st respondent brought the secured assets for sale and the petitioner neither objected to the same nor challenged the same; that the sale was held on 19-12-2005; that the 3rd respondent was the successful bider, who offered a sum of Rs. 42. 51. 000/- and also complied with all the terms and conditions of sale and hence, the sale was confirmed in his favour and the 3rd respondent also paid the entire sale consideration on 4-1-2006; that a sum of Rs. 12,40,000/- was given credit to the loan account of the petitioner in W. P. No. 634 of 2006 and a sum of rs. 12,52,350/- was given credit to the loan account of the petitioner in W. P. No. 635 of 2006 and their loan accounts were closed; that the sale certificate was also issued to the 3rd respondent on 6-1-2006; that the petitioners have filed Petitions to restore the s. A. Nos. 21 and 22 of 2005, which were also dismissed for non-payment of Court fee on 10-1-2006; that these Writ Petitions have been filed at that stage; that after deducting a sum of Rs. 10,000/- towards legal expenses of the 1st respondent, the balance amount of Rs. 17,48,250/- was lying with the 1st respondent; that the 1st respondent returned a sum of Rs. 17,25,000/- to the petitioner in W. P. No. 634 of 2006, which was returned; that the Petitioners forwarded demand drafts for Rs. 25,00,000/- drawn in favour of the 2nd respondent, which was received on 17-1-2006 along with a antedated letter 12-1-2006, but the 2nd respondent did not encash the demand draft.