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State Bank of Patiala vs Shri Homraj Meghraj Hiranvar decided on 22.10.13 by District Magistrate, Nagpur Mr Saurav Rao
DRT Solutions Citation – DRTS-022-State Bank Patiala vs Homraj Meghraj-2013
The entire judgment is in Marathi and its English translation is available below.
We have now numbered the Judgments published on this web site as DRTS-00. Accordingly all the judgments published so far have been numbered. This judgment has been numbered as DRTS-022.
The important extract from the said judgment in English is as under:-
“The notice u/s 13 (2) sent by bank was returned "not claimed ".hence the bank should have followed rule 3 of sarfasi act for proper service of notice .Following procedure should have been followed by the bank:-
a) Affixing of notice at the premises of guarantor
b) Publishing of notice , one in vernacular language & one in English newspaper.
In this case, bank has not submitted any document showing affixation of notice at the premises of guarantor & notice has been published in English language and in Marathi language papers. Hence bank has not followed procedure mentioned in rule 3 of sarfasi act. Before apporoaching to this office u/s 14 of sarfasi act , bank should have followed rule 3 of sarfasi act for service of notice to the guarantor, which they have not done, hence the application of bank for taking possession of secured asset is dismissed.”
Comments by DRT Solutions
The above mentioned Nagpur District Magistrate Judgment lays down that since the Bank has not followed the prescribed procedure, the application u/s 14 is dismissed.
Utility of this Judgment –
As mentioned by us in the 284th issue of our Weekly Mail, the borrower should endeavor to secure opportunity to present his reply by way of counter affidavit before the CMM/DM questioning the affidavit presented by the Bank. If proper representation and objections have been raised against the notice u/s 13(2) mentioning wrong doings committed by the Bank as well as the situation of ‘No Debt Due’, it will not be possible for the Magistrate to accept the said application by the bank u/s 14 until and unless the application u/s 17 is finally decided by the DRT.
In the Court of District Magistrate, Nagpur’s Office
Case No. 41/2011
Applicant: State Bank of Patiala, Nagpur.
Non-applicant: Shri Homraj Meghraj Hiranwar, Nagpur.
Under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
(Order passed dated : 22/10/2013)
The Authorised Officer, State Bank of Patiala, Nagpur, has filed an application under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, against non-applicant Shri Homraj Meghraj Hiranwar, for taking possession of his mortgaged property.
According to application filed by the Authorised Officer, State Bank of Patiala, Nagpur, State Bank of Patiala, Nagpur, has given loan to M/s. Kasliwal Trading Co. Pvt. Ltd., through its Director Shri Sanjay Kaluram and Smt. Sangita Sanjay Jain for business, for which the Non-applicant Shri Homraj Meghraj Hiranwar, has given his own immovable property for mortgage to the Applicant State Bank of Patiala, Nagpur, which is got securitized. Non-applicant Shri Homraj Meghraj Hiranwar’s immovable property has been mortgaged by the applicant State Bank of Patiala, Nagpur, the particulars of which are described below :-
Description of Property
Mouza: Wadi, Khasra No. 237/1, 239/2, Ward No. 5, Gram Panchayat House No. 4776, Plot No. 35 and house constructed thereon, Tahsil Nagpur (Gra), District: Nagpur, which is bounded as under :-
To the East : Road.
To the West : Road.
To the North : Plot No. 34.
To the South : Plot No. 35-A.
The above described property which is situated within Nagpur District immovable property according to aforesaid Act and being securitized property, The non-applicant having failed to repay the loan and interest accrued thereon, the Applicant State Bank of Patiala, Nagpur, has sought assistance for taking possession of aforesaid property.
The Applicant Bank, has sent a ‘demand notice’ dated 14/09/2009 under Section 13(2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the non-applicant whereby asked to deposit the outstanding loan amount along with interest accrued thereon within 60 days. However, the aforesaid notice sent to the non-applicant returned unserved. Therefore, the Applicant Bank published the aforesaid notice on 31/10/2009 in “Loksatta” and “Indian Express” local daily in English language in both the newspapers.
On 23/11/2011, The Authorised Officer, State Bank of Patiala, Nagpur, has filed an application under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in this office the case was registered. Accordingly, in pursuance of the above, this Tribunal has sent summons (Intimation Notice) to the applicant and non-applicant on 31.12.2011 of aforesaid matter having been registered that means given opportunity for submission of their say. Non-applicant personally and his Advocate remained present. To them, this Tribunal has given sufficient opportunity for filing their reply however, the applicant or his advocate have not filed their reply in this matter. Likewise, on final hearing date, they did not remain present before this Tribunal. But on 30/09/2013, filed reply as follows :
“Applicant Bank’s Demand Notice under Section 13(2) sent to the non-applicant was not served on the non-applicant same with an endorsement “Not Claimed” returned to the Applicant Bank. Bombay High Court in Laxmi –Versus- Bhimrao’s case held that this type of service is not a valid service. Applicant Bank Demand Notice’s copy has not affixed at the address of business of the non-applicant. Similarly, the aforesaid notice in highly circulated two local dailies out of which one local language has not been published. Applicant Bank has not published the possession notice in local dailies, however, actual physical possession has not been taken. Applicant Bank, has neither sent possession notice to the non-applicant nor aforesaid notice was done chaspa outside portion of the property of the non-applicant”.
Applicant Bank’s Advocate remained present on the date of final hearing. She requested this Tribunal that, the Applicant Bank, has sent a ‘demand notice’ to the non-applicant under Section 13(2) which was not served hence, the aforesaid notice published on 31/10/2009 in “Loksatta” and “Indian Express” in “English” language in both the local daily newspapers thereby the notice was served. To Non-applicant, for regularizing their loan account and repayment of entire loan several opportunity was given but the non-applicant failed to make the repayment of the entire loan amount, hence, the applicant bank has right to take actual physical possession of the property of the non-applicant which was mortgaged with the bank. This Tribunal has no legal impediment to allow the applicant and prayed that the application of the applicant bank may kindly be allowed.
Accord to Rule 3 of the aforesaid Act, “Demand Notice” for any reason whatsoever could not be served, in that event where the Secured Debtor or its (Agent) normally resides or for personal gains does works, to that house or building’s outside door or any other conspicuous place copy of the “demand notice” should be affixed and in two or more daily newspapers out of which in one daily newspaper in vernacular which is highly circulated in that locality should be published is mentioned therein.
However, while perusing the documents filed along with the application filed by the Applicant Bank, there is no acknowledgement bearing signature of the non-applicant of “demand notice” dated 14/09/2009 sent to the non-applicant is filed on record. The Applicant Bank in this matter has not filed any proof to show that copy of aforesaid Demand Notice having been affixed on the house or building’s outside door of the non-applicant normally resides or for personal gains does works, or at any other conspicuous place. Likewise, the Applicant Bank has not filed any proof in order to show that the contents of the “demand notice” in two daily newspapers out of which in one daily newspaper in vernacular which is highly circulated in that locality published in pursuance of Rule 3 before filing of application under Section 14 of the Act. On perusal of the documents filed along with the application, it appears that The Authorised Officer of the Bank has not served the demand notice to the non-applicant in pursuance of the Rule 3.
Therefore, I Saurabh Rao, Collector and District Magistrate, Nagpur, in terms of the power conferred under Section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, exercise my power and pass the following order :
The application filed by Authorised Officer, State Bank of Patiala, Nagpur, on the basis of aforesaid reasoning is rejected (disallowed) and proceedings at this stage stands closed.
The aforesaid order passed on this 22/10/2013 under my signature and seal.
District Magistrate, Nagpur
(By consent of Hon’ District Magistrate)
Translated by: Adv. A.S. Murty.
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