HOTEL PARAS GARDEN Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) THIS Court has issued notice for final disposal on 29/08/2012. Accordingly, we have heard Shri Sadavarte, learned counsel for the petitioners, Shri Almelkar, learned counsel for respondent Nos. 1 and 2 and Shri Ghate, learned counsel for respondent No. 3 finally, by issuing Rule and making it returnable forthwith. We have also perused the orders dated 14/02/2013 and 27/06/2013 passed by us in this matter.

(2.) PETITIONER No. 1 a Hotel establishment and Petitioner No. 2, its proprietor, question before this Court, recovery of loan by Respondent No. 1 Secured creditor in Recovery Proceedings No. 9 of 2006. The prayer is, as Bank and Recovery Officer failed to comply with the mandatory provisions of Rules 48, 49, 50 and 52 of Second Schedule appended with the Income Tax Act, 1961, and did not adopt fair and proper procedure, the sale of subject property by auction, be quashed and set aside and property should be restored back to the petitioners. In the alternative, prayer is to condone delay in preferring an application under Rule 61 of the above mentioned Second Schedule and to direct the Recovery Officer to accept the said application for setting aside of sale dated 28.03.2012 and to set it aside. The petitioners also seek a direction to allow it to deposit the amount in terms of said provision within a period of 30 days of issuance of appropriate writ, order or direction by this Court. Respondent No. 3 before this Court claims to be the auction purchaser and is placed in possession by Respondent Nos. 1 and 2.

(3.) PETITIONER No. 2 borrowed sum of Rs.15 lakh from Respondent No. 1 and mortgaged the property as described in para 2 of writ petition i.e. Survey No. 7/4 located at Mouza Kastakhed, Tahsil - Balapur, District Akola, which holds a Hotel building of Hotel Paras Garden, in favour of Respondent No. 1 Bank. Said property is mentioned as subject property hereafter. Petitioner No. 2 claims that he met with an accident and became paralysed, therefore, he was required to close down the establishment and shifted to his native place i.e. District Jalgaon. He had notified this change in address to Respondent No. 1 Bank. He never received notice of Recovery proceedings or any other notice at his Jalgaon address. For the first time he got a notice dated 01.05.2012 on 18.05.2012. By this notice, he was called upon to hand over possession after auction.