SUNITA NISHAD Vs. DEBT RECOVERY APPELLATE TRIBUNAL

JUDGEMENT

(1.) This writ petition has been filed by the petitioners Sunita Nishad and her husband Om Prakash, challenging the order dtd. 22/10/2019 passed by the Debt Recovery Appellate Tribunal Allahabad, (DRAT) in Appeal No.18 of 2018, filed by the Bank of Baroda through which the order dtd. 20/8/2018 passed by the Debt Recovery Tribunal, Lucknow (hereinafter referred to as 'DRT') has been set aside and auction sale dtd. 11/12/2017 and possession notice dtd. 5/10/2016 has been affirmed and physical possession of House No. 13/88, Sector-13, Indira Nagar Vistar Yojna, Lucknow, has been directed to be delivered to Smt. Mamta Yadav, the respondent no.4 in this petition. The petitioners had earlier filed Writ Petition No. 31115 (MB) of 2017 before this Court challenging the auction notice dtd. 11/12/2017, which petition was disposed off by this Court directing the petitioners to approach the DRT as the proceedings were under the SARFAESI Act.

(2.) The brief facts necessary for deciding the case, as mentioned in the Writ Petition No. 35050 of 2019 are that the State Government launched a scheme called 'Kamdhenu Dairy Scheme' with intention to promote dairy farming in the State of U.P. to maintain its status as the highest milk producing state in the country. One Jai Prakash, the brother of petitioner no.2 and the brother-in-law of the petitioner no.1, applied for a term loan of five years and was sanctioned Rs.90.00 lakhs by the Bank of Baroda under the State Sponsored Scheme. The petitioner no.1 and the petitioner no.2 being relatives of the borrower Jai Prakash and already being customers of Bank of Baroda, Gomti Nagar Branch, were shown as guarantors of the loan fraudulently by the bank, which used the original papers relating to petitioner's jointly owned property at Indira Nagar, which was already mortgaged to the bank in a housing loan, as surety for the agricultural loan of the borrower. It has been stated in paragraph 10 to 13 that the petitioner no.1 was never consulted by the bank, nor did she sign any papers for extension of mortgage and she never stood as guarantor or surety for the loan taken by Jai Prakash. Petitioner no.1 and petitioner no.2 had taken a housing loan from HDFC Bank on 30/7/2011 of Rs.32.00 lakhs for buying the house situated at Indira Nagar and the loan had to be repaid with interest to HDFC initially, but due to lower rate of interest being offered by Bank of Baroda, the petitioners got their loan transferred on 23/1/2015 to the respondent no.3, Bank of Baroda, which granted them a loan of Rs.29,50,000.00 and the papers relating to the house situated at Indira Nagar were submitted by the petitioners to the said bank in January, 2015 itself. In March 2015, when Jai Prakash applied for loan of Rs.90,00,000.00 under Kamdhenu Dairy Scheme, the papers relating to Indira Nagar House property had already been deposited in the bank as the house was mortgaged for repayment of housing loan, which had to be done in 217 monthly installments. The loan account of the borrower Jai Prakash Yadav was declared NPA by the bank on 30/6/2016 and a Demand Notice was issued under Sec. 13(2) of the SARFAESI Act on 21/7/2016.

(3.) It has been stated that the petitioner no.1 never received such Demand Notice under Sec. 13(2) of the SARFAESI Act. On 5/10/2016, possession notice was issued by the bank under Sec. 13(4) of the SARFAESI Act, 2002 and it took symbolic possession of the property, but no such notice was ever served upon petitioner no.1, and the petitioner had no knowledge of taking over of the property by the bank. On 27/1/2017, a letter of redemption was sent by the bank to the petitioners through speed post. Thereafter summons were issued by the District Magistrate, Lucknow under Sec. 14 of the SARFAESI Act, 2002, on 21/3/2017.