w w w . L a w y e r S e r v i c e s . i n



Elegant Carpet Alam Exports and Others V/S Authorized Officer, Bank of Baroda and Others.


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- G G CARPET EXPORTS PRIVATE LIMITED [Active] CIN = U51311RJ2003PTC018185

Company & Directors' Information:- THE BANK OF BARODA LIMITED [Not available for efiling] CIN = U99999MH1911PLC007676

    Case No. S.A. 77 of 2017

    Decided On, 04 May 2017

    At, Debts Recovery Tribunal Allahabad

    By, THE HONORABLE JUSTICE: VINAY GOEL
    By, PRESIDING OFFICER

    For Petitioner: Sanjay Gupta And For Respondents: S.K. Singh



Judgment Text


1. This order of mine will dispose of Securitization Application No. 77 of 2017 filed by applicants under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

2. As applicants and respondent bank agitated about Original Application No. 282 of 2012 so I conveniently called records of decided Original Application for perusal and fair adjudication of this case,

3. The counsel for the applicants have field detailed arguments containing facts, so to avoid repetition and for the sake of brevity I would like to reproduce so submitted written submissions-

WRITTEN ARGUMENTS ON BEHALF OF APPLICANTS:-

The applicants filed aforesaid Securitization Application No. 77 of 2017 on 27.02.2017 for setting aside the entire recovery proceeding under the SARFEASI Act initiated by the Respondent Bank before publishing the sale auction notice as well publication of Sale Auction Notice dated 09.022013 on the ground that bank failed to comply the mandatory provisions of Rule 3(1) read with Rule 3(4), Rule 8(1), Rule 8(2), Rule 8(5), Rule 8(6), Rule 8(7), Rule 9(1), Rule 9(2) & Rule 9(3) of the Security Interest (Enforcement) Rules, 2002 hence the arguments of the applicants on merit of the case are as under:

1. In present case alongwith other issues some legal question is involve which required to be decide in the interest of justice. The legal question involve in the matter is as under:

a. Whether the bank can proceed in continuation of that demand notice dated 27.07.2011 which was actually not issued & Whether in earlier Securitisation Application, the demand notice dated 02.08.2011 was subject matter of the S.A. which was annexed by bank in Original Application and provides during the argument of present S.A.

Arguments are as under;

1. In E-auction Notice the Respondent bank mention that the bank auction the property in question in continuation of that demand notice dated 27.07.2011 but the same was not ever issued & served to applicants in any manner while the demand notice was published on 31.08.2011 without issuing the same even bank failed to produce any material regarding issuing & service of Demand Notice dated 27.07.2011 and issued a possession notice dated in continuation of that demand notice dated 27,07,2011 while under the provision of the act Authorised Officer of the Secured Creditor cannot proceed under SARFEASl Act, 2002 without issuing the any demand notice under section 13(2).

2. The Securitisation Application 10 of 2012 was filed before the filing of Original Application No. 282 of 2012 hence the statement of the respondent bank regarding Securitisation Application 10 of 2012 was filed during the pendency of Original Application No. 282 of 2012 is not sustainable. It is further submitted that after received back the alleged demand notice dated 27.07,2011 the respondent bank published the demand notice in daily news paper on 31.08.2011 by mention the date 27.07.2011 for demand notice hut with original application the bank filed demand notice dated 02.08.2011 in which the respondent bank mentioned that the account of the applicants was declared as NPA on 31.07.2011 and in possession notice dated 12.11.2011, the respondent bank also mentioned the date of demand notice 27.07,2011 actually which is not exist as such Securitisation Application 10 of 2012 itself infructuous due to non existence of demand notice dated 27.07.2011 and has no effect upon present Securitisation Application.

3. Previous Securitisation Application 10 of 2012 was based on the demand notice dated 27.07.2011 and that possession notice dated 12.11.2011 which was issued in continuation of that demand notice dated 27.07.2011 actually which was not issued by the bank physically to the applicants and in present Securitisation Application is based on demand notice dated 02.08.2011 which was issued by the bank and annexed with Original Application but the same was not subject matter of the Securitisation Application 10 of 2012.

b. Whether the issue which has not been decided in earlier Securitization Application on merit due to not press by the counsel treating the waiver in earlier Securitization Application constitute a bar as principal of res-judicata.

Arguments are as under:

1. That order 09.09.2014 passed by this Hon'ble Tribunal in Securitisation Application 10 of 2012 it is noted that the counsel for the applicants argued the only one ground regarding agriculture land but not argued the other ground hence this Hon'ble Tribunal treated other ground as tantamount of the waiver on the part of applicants but in facts this Hon'ble Tribunal treated other ground as tantamount of the waiver on the part of applicants only to the extent of process challenged by the applicants in Securitisation Application 10 of 2012.

2. That with due respect of the Hon'ble Tribunal as well as counsel for the applicants of the Securitisation Application 10 of 2012, it is being submitted that Securitisation Application filed by the any aggrieved person under section 17(1) of the SARFEASl Act, 2002 will be decide in pursuance to provision made under section 17(2) of the SARFEASl Act, 2002 and ground is taken in the Securitisation Application if not argued by the counsel, can not constitute waiver on the part of applicants due to provision provide by the statute under section 17(2) of the SARFEASi Act, 2002 and the Securitisation Application filed by the any aggrieved person under section 17(1) of the SARFEASl Act, 2002 will he decide on merit of the case according to material available on record.

3. Earlier Securitisation Application 10 of 2012 was based on the demand notice dated 27,07.2011 actually which was not issued by the bank physically to the applicants and in present Securitisation Application is based on demand notice dated 02.08.2011 which was issued by the bank and annexed with Original Application as well as the applicants are challenging the E-auction Notice dated 04,02.2017 on the ground that respondent bank proceeded further in continuation of demand notice dated 27,072011, which was not exist and under SARFEAS1 Act, 2002 bank can not initiate entire recovery proceeding by mentioning that demand notice which is not exist as such the ground taken in present Securitisation Application is neither barred by principal of estoppel & res judicata and nor barred by principal of Explanation IV of the res judicata hence the applicants have every right to challenge the measures taken under section 13(4} of the SARFEASl Act, 2002 before DRT by filling Securitization Application under section 17(1) of the SARFEASl Act, 2002 with all grounds available with them if fresh cause of action arises.

4. That in present Securitisation a pure legal question involve that whether bank can proceed further by issuing the possession notice 12.112011 under SARFEASl Act, 2002 in continuation of that demand notice dated 27.07.2011, actually which was not issued and whether bank proceeded further on the basis of demand notice dated 02.08.2011 which is under question in present Securitisation Application hence Principal of Res-judicata & Principal of Issue Estoppel is not application in present Securitization Application because Principal of Res-judicata & Principal of Issue Estoppel binding upon parties but not binding upon the court to decide the issue again for correctness of application of law.

2. Non compliance of Rule 3(1) read with Rule 3(4). Rule 8(1) & 8(2) of the Security Interest (Enforcement) Rules. 2002

a. During the arguments Counsel for the respondent bank accepted that Respondent bank did not issued demand notice dated 27.07.2011 and informed to Hon'ble Tribunal that respondent bank issued a demand notice dated 02.08.2011 under section 13(2) of the SARFEASl Act, 2002 but could not proceeded further in continuation of that demand notice dated 02.082011 and also failed to prove service of demand notice dated 02,082011 to the applicants in order to compliance of Rule 3(1) read with rule 3(4) of the Security Interest (Enforcement) Rules, 2002 as such all consequential action, if taken would be rendered bad in law once the fact of non-service is proved.

b. In Mardia Chemicals case in para No. 38 it mention that "The secured creditor must serve a notice in writing to the borrower" while though in section 13(2) the language used by the Legislature is " the secured creditor may require the borrower by notice in writing" but Apex court in paragraph mentioned "must serve a notice in writing" hence section 13(2) of the Act calls for its strict compliance and the demand notice has to be served upon the borrower, strictly in the manner prescribed in Rule 3 of the Security Interest (Enforcement) Rules, 2002 and the sixty days period starts running only from the date of service of demand notice issued under section 13(2) and not from any earlier date but in present case respondent bank produced the postal receipt hut failed to disclosed the date of service of demand notice hence all further proceedings of the bank is not sustainable under the provision of Law.

c. Demand raised by the bank in Demand Notice dated 02.08.2011 is incorrect and the section 13(3) of the SARFEAl Act, 2002 provided that the notice "shall give details of the amount payable" and it is significant to note that the Legislature has used the expression "shall give details of the amount" and not "shall give the final amount payable" or "shall give total amount due" or the like. The word "details" used by the Legislature before "the amount payable" is very significant and it means the Legislature clearly intended that in the notice under section 13(2) the details of calculation of principal and interest with all debit and credits must he mentioned but respondent bank failed to do the same.

d. Distinction between non-service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action 'illegal' whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot he held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused.

e. It is a settled principle of law that no person can be deprived of his property or any interest in the property saves by authority of law. Article 300-A of the Constitution recognizes this constitutional right of a person, which was till 1978 recognised as the fundamental right of a citizen-indeed whether fundamental or constitutional the fact remains that it has always been recognised as a right guaranteed under the Constitution in favour of a citizen/person and hence no person cannot be deprived of this valuable right which Constitution has given to him save by authority of law.

f. That claim of the respondent bank adjudicated by this Hon'ble Tribunal in Original Application No. 282 of 2012 decided on 08.09.2014 whereby the claim of the respondent bank was adjudicate Rs. 15610193.90 plus interest @ 12% per annum charged with monthly rest from the date of institution of Original Application No. 282 of 2012 i.e. 29.08.2012 but after issuing the demand notice in format of Form No. 1 for aforesaid amount on 26.052015, the respondent bank decided to continue with alleged demand notice dated 27.07.2011 & possession notice dated 12.11.2011 for publication of E-auction Notice dated 04.02.2017 in arbitrary manner without reducing the demanded amount by Rs. 57 Lakh which has already been deposited with bank while after adjudication the claim by the ld. DRT in the Original Application respondent bank has no right to proceed further in continuation of demand notice already issued before filing of Original Application or during the pendency of Original Application.

g. The respondent bank failed to produced any possession notice which was issued in continuation of demand notice dated 02.08.2011 hence the compliance of Rule 8(1) & 8(2) of the Security Interest (Enforcement) Rules, 2002 in continuation of demand notice dated 27.07.2011 cannot be treated as valid compliance in the eye of law.

3. Non compliance of Rule 8(5), Rule 8(6) & 8(7) of the Security Interest (Enforcement) Rules. 2002

a. Against allegation of the applicants regarding noncompliance of Rule 8(5) of the Security Interest (Enforcement) Rules, 2002, the respondent bank produce a valuation report date 24.12.2014 before hon'ble Tribunal during the arguments of the case on 15.03.2017 while the bank proceeded in the month of March, 17 hence such valuation report cannot be treated as valid compliance in the eye of law of the Rule 8(5) of the Security Interest (Enforcement) Rules, 2002.

b. Against allegation of the applicants regarding noncompliance of Rule 8(6) read with Rule 8(1) of the Security Interest (Enforcement) Rules, 2002, the respondent bank annexed notice for sale dated 06.02.2017 issued in compliance to Rule 8(6) to the applicant at page No. 21 with written objection dated 02.03,2017 which clearly shows that respondent bank failed to issue the 30 days clear notice in compliance to Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 read with section 13(8) of the SARFEASl Act, 2002 before publication of sale notice and respondent bank also failed to prove the compliance of Rule 8(7) of the Security Interest (Enforcement) Rules, 2002 by showing affixation upon every alleged mortgaged property.

4. That from aforesaid arguments it is clear that respondent bank failed to comply the provisions of Section 13(2), 13(3). 13 (3-A) & 13(4) of the SARFEASl Act, 2002 as well as all Sub-Rule 8&9 of the Security Interest (Enforcement) Rules, 2002 hence entire proceedings of the bank is liable to be set aside and respondent bank has no any right to debited any charges in the account of applicants while the applicant is liable to get a compensation from respondent bank for initiation of recovery proceeding under SARFEASl Act, 2002 in arbitrary & whimsical manner.

That this written argument taken on record and decided the Securitisation Application No. 77 of 2017 according to provisions of law by considering the aforesaid facts in the interest of justice.

4. Whereas bank has failed to file any written submission and in reply bank submitted that earlier bank filed O.A. No, 282 of 2012 (Bank of Baroda Vs. Elegant Carpets & others) which was decreed vide judgment dt. 8.9,2014 and during the pendency of the said O.A. borrowers filed S.A. No. 10 of 2012 and in the said S.A. borrowers raised following issues:-

(i) The bank had made a publication of the demand notice under section 13(2) of the SAREASI Act on 30.8.011 which was illegal. (refer para 12 of the S.A. No. 10/12),

(ii) The bank had wrongly declared the account of the borrowers as non-performing asset. (Refer para 13 of the S.A. No. 10 of 2012)

(iii) The objection of the borrowers dt. 3.10.2011 was rejected by the bank vide letter dt. 11.10.2011 in an arbitrary manner and superficial manner. (Refer para 14 of S.A. No. 10/12).

(iv) The bank had issued possession notice under section 13(4) which was illegal, unjust and improper. (Refer para 16 of S.A. No. 10/12).

(v) It was also contended that the mortgaged property was agricultural land and could not be sold in order to satisfy the dues of the bank. (Refer para 15 of S.A. No. 10/12).

5. The said S.A. No. 10 of 2012 was dismissed vide order dt. 9.9.2014 and in the said S.A. applicants only took one ground, thus all other grounds taken in the S.A. were treated as not pressed and tantamount to waiver on the part of the applicants. In this present S.A. applicants are precluded from taking all such other grounds because those grounds were already deemed to have been waived in view of order dt. 9.9,2014 and process uptil service of possession notice cannot be challenged in this S.A.

6. As during the course of hearing bank itself conceded about some defects in sale notice so I find no merits to discuss further pleadings relating to Rule 8(5) of the Security Interest (Enforcement) Rules, 2002 onwards as made in the reply of the bank.

7. At the time of arguments counsel for the bank reiterated the averments made in the reply and further submitted some judgments on the issue of res judicata.

8. I have heard the Ld. Counsel for the parties and also gone through the records. Admittedly, there are three demand notices i.e. notice dt. 27.7.2011 referred in sale notice and possession notice published by the bank for demand of Rs. 1.39.87.984.00. demand notice dt. 2.8,2011 annexed at page 565 to 567 as Exhibit A-120 in O.A. filed by the bank for claim of Rs. 1,39,87,984.00 publication of demand notice dt. 30.8.2011 in newspaper for claim of Rs. 1,39,87,984.00.

9. Admittedly, during pendency of the O.A. applicants preferred one securitization application which was decided on 9.9.2014. By that time bank had already issued possession notice that date of demand notice as 27.7.2011 and by that time applicants/defendants had knowledge about the pleadings made in the O.A. and documents annexed thereto, but applicants/defendants have failed to raise any such allegations at the time of filing arguments and got order dt. 9.9.2014 vide which their S.A. was dismissed. The ag

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itation regarding non receipt of demand notice and non compliance of Rule 8(1) and 8(2) of the Security Interest (Enforcement) Rules, 2002 in this S.A. are hit by principles of waiver, res judicata and constructive res judicata and estoppel. All such grounds were very much available to the applicants in earlier S.A. but they either failed to argue at the time of final hearing or omitted to take such grounds in effective and proper manner. Thus I feel fair to say that now applicants have no right to re-agitate such grounds in this S.A. particularly when amount of demand in all the so referred notices is same and bank published demand notice dt. 27.7.2011 in newspapers on 30.8.2011. The demand notice dt. 27.7.2011 was published on 30.8.2011 and if in subsequent proceedings bank has mentioned date of demand notice as 27.7.2011 instead of date of publication of demand notice i.e. only an irregularity not a material irregularity to call quashing of process under Securitization Act, 2002. Even otherwise, applicants in their earlier S.A. specifically agitated about publication of demand notice in newspaper (grounds reproduced supra in para 4) regarding publication of demand notice dt. 30.8.2011 but failed to take up issue to its concluding end in that S.A., so now their attempt to challenge process on the ground of service of demand notice is hit by principles of res judicata, waiver and estoppel. The order dt. 9.9.2014 has attained finality as there is nothing on record that applicants challenged said order before competent court under section 18 of Securitization Act, 2002. 10. The bank is directed not to debit charges of publication of defective sale notice in the account of borrower as bank itself conceded about certain defects in the auction notice. 11. The bank in its own discretion may proceed on the demand notices and possession notices already issued in accordance with law. Let copies of this order be supplied to the parties as per Rules. The S.A. is dismissed accordingly.
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15-06-2018 Alhaj Dr. Md. Meraj Alam Versus Rehena Begum High Court of Gauhati
16-05-2018 R. Balakrishna Bhat & Others Versus Bank of Baroda & Others Supreme Court of India
16-05-2018 Manager, Bank of Baroda Jodhpur Park Branch Versus Susanta Saha National Consumer Disputes Redressal Commission NCDRC
27-04-2018 Nafiz Alam Nurul Hudda Shaikh & Others Versus The State of Maharashtra High Court of Judicature at Bombay