K. RADHAKRISHNAN Vs. INDIAN BANK ERA PURAM BRANCH NO. 9 FIRST TRUST LINK ST MANDAVELLIPAKKAM CHENNAI 28 & ORS.

JUDGEMENT

(1.) The petitioner has come forward to challenge the order passed in I.A.No.475 of 2015 in AIR (SA) 385 of 2015 dated 09.05.2017 of Debts Recovery Appellate Tribunal, Chennai, and also sought direction to the seventh respondent to number the appeal in AIR (SA) 385 of 2015 and to decide the same on merits.

(2.) The brief facts of the case are as follows:- The property bearing Old No. 15, New No. 23 A, Pycrafts 1st Street, Royapettah, Chennai -14 was owned by late Kamakshi Ammal, who died intestate on 1998 leaving behind her legal heirs, viz., the petitioner, K.Pandarinathan (third respondent herein) and three others. For the loan availed by the third respondent herein for his business purpose, the deceased Kamakshi Ammal stood as a guarantor by creating an equitable mortgage over the said property. The first respondent bank filed a suit in O.S.No.7789 of 1997 on the file of the City Civil Court claiming a sum of Rs. 2,81,253/- against them and obtained an exparte preliminary decree and subsequently, filed O.A.No.35 of 2005 before Debt Recovery Tribunal-1, Chennai and obtained an exparte decree. Therefore, the petitioner filed petitions before Debt Recovery Tribunal-1 seeking to condone the delay (MA.208 of 2006), set aside the exparte decree (MA.209 of 2006), implead (MA.210 of 2006) and stay (MA.211 of 2006). The Debt Recovery Tribunal- I, Chennai, dismissed the petition to condone the delay. An appeal preferred against the order of Debt Recovery Tribunal- I, Chennai, has also been dismissed by the Debts Recovery Appellate Tribunal, Chennai. In the mean while, challenging the Possession Notice dated 07.03.2009, the petitioner preferred S.A.No.1 of 2010 before the Debt Recovery Tribunal-1, Chennai, and the same has been dismissed on 28.04.2005. Against which, the petitioner preferred an Appeal before the Debts Recovery Appellate Tribunal, Chennai, in AIR (SA) 385 of 2015 along with Waiver Application in I.A.No.475 of 2015. On Waiver Application, the Debts Recovery Appellate Tribunal, Chennai, vide its order dated 09.05.2017, has directed the petitioner to deposit Rs. 10 lakhs with the Registrar of Debts Recovery Appellate Tribunal, Chennai, as a pre-condition to entertain the said Appeal. Challenging the same, the petitioner is before this Court.

(3.) The learned senior counsel appearing on behalf of the petitioner would submit that either 13(2) demand notice dated 13.12.2008 or 13(4) Possession Notice dated 07.03.2009 were not issued on the legal heirs of the deceased Kamakshi Ammal, except on the legal heir, ie., Principal Borrower K.Pandarinathan. Non-issuance of 13(2) notice takes away the valuable rights of the other legal heirs to send a representation under Section 13(A) of the SARFAESI Act. The mortgage was not at all created by the deceased guarantor in favour of the first respondent Bank. Since the notice issued, on third respondent, under Section 13(2) dated 13.12.2008 has already been set aside by the Debt Recovery Tribunal - I in S.A.No.192 of 2010 dated 18.11.2015, the respondent bank cannot proceed further and the statutory requirement of pre-deposit under Section 18(1) of the SARFAESI Act may not arise.