At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE RAJASEKHAR MANTHA
For the Petitioner: Satadeep Bhattacharya, S.S. Bhutoria, Amit Sureka, Advocates. For the Respondents: None.
The facts of the case are that the writ petitioner participated in an auction conducted by the respondent bank under Section 13(4) of the SURFAESI Act, 2002. The title deed of the property based on which the bank asserts its rights on the secured asset is a certified copy of the original. The original is stated to have been lost and/or destroyed.
The petitioner participated in an auction despite notice of such defect in the title of the property. It is stated at the bar that after initially withdrawing its bid from the proceedings, the borrower once again participated in the auction, on the banks assurance that it should obtain an endorsement from the Registrar of Assurances concerned on the certified copy that the same shall be valid as an original title deed and in place of the original title deed. It is not understood as to under what law the endorsement to that effect could be issued by the Registrar of Assurances and to what effect such endorsement would be in law.
Be that as it may, the bank after accepting the 25% of the bid value, as submitted by the writ petitioner, extended the time for putting in the balance 75%. The same according to me is a violation of Rule 9 of the Security Interest (Enforcement) Rules since the borrower has not consented to such extension.
The borrower in any event is not even a party to the writ application.
The matter is being moved in Vacation Bench on an urgency. I find that a party seeking to move an application in vacation and that too on an urgent basis should have addressed this elementary issue of non-joinder of the borrower as a party.
It is submitted by learned Advocate appearing for the petitioner that the borrower would be added as a party and be served and it is prayed that the matter may be placed before the Regular Bench.
Such leave is granted, however, upon payment of costs assessed at 500 GMs payable by the writ petitioner to the State Legal Services Authority within a period of seven days from the re-opening of this Court after the Chri
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stmas Vacation. The matter may be listed seven days from the re-opening of this Court as stated hereinabove but the writ petition shall be entertained only upon evidence of payment of costs, as a condition precedent.