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Raj Engineering Works and Others. V/S Indian Overseas Bank

    S.A. No. 255 of 2018

    Decided On, 01 January 2020

    At, DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM

    By, THE HONORABLE JUSTICE: DUPPALA VASUDEVA RAO
    By, (PRESIDING OFFICER)

    For Petitioner: B. Sreenivasa Reddy And For Respondents: K.M. Gupta



Judgment Text


1. This SA is filed by the Applicants with a prayer (a) to declare that the Public Notice for e-Auction for Sale of Immovable Properties' dated 08.06.2018 issued by the Respondent Bank fixing the date of auction on 30.06.2018 under the provisions of SARFAESI Act and Rules, 2002 against the schedule properties as null and void; (b) to declare that all consequential measures in pursuant to the auction dated 30.06.2018 in pursuant to the e-auction Sale Notice dated 08.06.2018 issued by the Respondent Bank against the schedule properties under the provisions of SARFAESI Act and Security Interest (Enforcement) Rules, 2002 as illegal and arbitrary; (c) to Set aside all the measures initiated u/s. 13(2) & 13(4) of the SARFAESI Act and Rules, 2002 against the schedule property by the Respondent Bank; (d) Order to re-deliver the schedule property to the Applicants henceforth; (e) to declare that the reserve price fixed by the Respondent Bank is low and the same is without any justification; (f) to declare that the issuance of impugned notices including taking physical possession of schedule property under the SARFAESI Act and Rules, 2002 while the OTS proposal pending is without any justification and consequently direct the Respondent Bank to consider the OTS proposals and settle the account; (g) to direct the Respondent Bank to pay costs including the damages and compensatory costs of Rs. 20 lakhs to the Applicants.

2. According the facts of the case, it is submitted that the Applicant No. 1 is the partnership firm engaged in the business of mining excavation near Ranchi, Jharkhand State and in the course of the business, the applicants have approached the Respondent Bank, in the year 2012 for availing Cash Credit facilities to the extent of Rs. 93 lakhs and on the request of the Applicants the Respondent Bank has sanctioned the same. While availing the said financial assistance the Applicants have executed certain documents in favour of the Respondent Bank and at the same time the officers of the Respondent Bank have obtained signatures of the Applicants as well as the guarantors on a bunch of the blank printed documents for the reasons best known to them. It is submitted that after availing the said facility the Applicants were regular in repayments towards interest and as on date they have paid approximately an amount of Rs. 40-50 lakhs and the same is borne by the record available with the Respondent Bank. It is further submitted that due to the market conditions the Applicant firm ran into temporary liquidity crunch for last several months forcing the Applicants to delay making payments to the Respondent Bank. However, the Applicants have been making every effort to raise funds to pay the legitimate dues so as to regularize it. Applicants further submitted that the Authorized Officer of the Respondent Bank has issued the Demand Notice dated 19.04.2016 u/s. 13(2) of the SARFAESI Act, 2002 alleging that it has granted loan facility by way of financial assistance to the Applicants against the asset creating a security interest in favour of the Respondent Bank. The Respondent Bank has also alleged that the Applicants have acknowledged the liability by executing various documents from time to time and the operation and conduct of the alleged financial facilities have become irregular and the debt has been classified as non-performing asset in accordance with the directives/guidelines issued by the Reserve Bank of India. The Respondent Bank further demanded the applicants to pay an amount of Rs. 93,61,165/- as on 31.03.2016 within the period of 60 days from the date of receipt of said notice. Applicants further submitted that the Respondent Bank has not furnished any details of the facilities and the amount allegedly payable by the Applicant herein along with the said demand notice. It is submitted that serving the Demand Notice to all the parties with a malafide intention initiated measures u/s. 13(4) of the Act, 2002 by way of issuing a Possession Notice dated 03.10.2015 against the alleged secured assets mentioned therein wherein, the Authorized Officer of the Respondent Bank sated that the barrower having failed to pay the amount, notice thereby given to the borrower in specific and public in general that bank has taken possession of the properties described therein in exercise of powers conferred on him u/s. 13(4) of the said Act read with Rule 9 of the said Rules on 28.07.2016. While issuing the said notice, the Authorized Officer of the Respondent Bank further cautioned the borrower in particular and the public in general not to deal with the property and any dealings with the property will be subject to the charge of the Respondent Bank for an amount of Rs. 98,32,416.50 ps. and interest and expenses thereon. It is submitted on 19.07.2017, some of the officials claiming from the Respondent Bank along with an Advocate Commissioner appointed by the learned CMM Court in Crl MP. No. 441/2017, Vijayawada, have visited the schedule property with an intention to take physical possession of the scheduled property. It is further submitted that aggrieved by the said measures, the Applicants have approached this Tribunal by way of filing an application u/s. 17 of the SARFAESI Act vide SA No. 296/2017 and subsequently the SA was dismissed for default. Upon coming to know about the said dismissal order, the Applicant have filed IA, to set aside the same vide MA and the same is pending for adjudication. It is further submitted that while the above MA of 2018 is pending on the file of this Tribunal, the Respondent Bank in a hurried manner issued an e-auction Sale Notice dated 29.05.2018 wherein, the Authorised Officer brought the schedule property for auction on 30.06.2018. A copy of the Public Notice for e-Auction for Sale of Immovable Properties' dated 08.06.2018 along with postal envelop is annexed hereto as Annexure A-1 for perusal of Tribunal. It is humbly submitted that issuing the above said notices and initiating the measures by the Respondent Bank under the Act and Rules, 2002 against the schedule properties are highly objectionable and unwarranted. As a matter of fact, the Applicant's account does not fall within the purview of definition of 'non-performing asset' under the Act as the secured assets cannot classified as sub-standard or doubtful or loss assets in as much as the assets or account of the Applicant has not lost their current market value. The Applicant further submitted that the notices issued under the provisions of SARFAESI Act, 2002 and Security Interest (Enforcement) Rules 2002 is quite unwarranted besides being illegal and contrary to the guidelines issued, by the Reserve Bank of India. It is further submitted that the Respondent Bank has not served the Possession Notice allegedly said to have issued on 28.02.2016 on the Applicants and the same was neither affixed at the conspicuous place of scheduled property nor published in two leading Newspapers as stipulated u/r 8(1) & (2) of the Security Interest (Enforcement) Rules, 2002. It is further submitted that without following the procedure the Respondent Bank took physical possession of the schedule property. The Authorised Officer has failed to draw conduct the inventory and panchanama and further failed to serve copy of said proceedings on the Applicants herein. Moreover, the Respondent Bank has not taken any steps to preserve the schedule and in absence of the said procedure the physical possession taken by the Respondent Bank is invalid and the same is illegal and deserves to be set aside by this Tribunal. Applicants further submitted that while issuing the e-auction Sale Notice which was served on the Applicant reveals that the last date for submission of ON LINE application for bid with EMD as 20.06.2018 and whereas contrary to the same, the Authorised Officer of the Respondent Bank informed the general public through the paper publication of e-Auction Sale is that the last date of submission of bids is 27.06.2018 which is without any justification. It is submitted that the said malafide action of the Respondent Bank is also highly objectionable and improper. It is further submitted that the Respondent Bank has not followed the procedure contemplated u/r 8 & 9 of the Rules, 2002 against the schedule property while issuing the impugned notices and same is not maintainable under the Rules, 2002. It is further submitted that the action of the Authorized Officer of the Respondent Bank is an arbitrary, illegal and highly improper and the same is against the principles of natural justice. It is submitted that the Respondent Bank has neither affixed the impugned Public Notice for e-auction for Sale of immovable properties dated 08.06.2018 at the conspicuous place of the schedule property nor published in two leading Newspapers as stipulated u/r 8(6) & (7) of the Rules, 2002. It is further submitted that prior to issuance of the Public Notice for e-auction for sale of immovable properties dated 08.06.2018 the Respondent Bank has not issued/served the Notice prior to Sale/30 days Sale Notice u/r 8(6) of the Rules, 2002 and further submitted that the Respondent Bank deprived the Applicants to redeem the property u/s. 13(8) of the SARFAESI Act, 2002 and under the said circumstances, issuance of e-Auction Sale Notice without complying Rule 8(6) is bad in law. Applicants further submitted that the impugned Public Notice for e-auction for Sale of Immovable Properties dated 08.06.2018 does not satisfy the amended provision of Section 13(8) of SARFAESI Act and Rules, 2002. As per the said provision, the right of redemption given to the borrower would expire upon publication of 'Auction Public Notice for Sale and without appreciating the said provisions the Authorized Officer has directly issued Public Notice for e-Auction for Sale of Immovable Properties' dated 08.06.2018 under Rule 9(1) which is illegal and arbitrary. Applicants further submitted that while issuing the impugned notices, the Respondent Bank has not followed the procedure contemplated u/r 8 & 9 of the Rules, 2002. The Respondent Bank has not followed the verdict given by the Hon'ble Supreme Court of India as well as the High Court of A.P. and Telangana at Hyderabad in Mathew Vargheese Vs. Amruta Kumar and Amarender Reddy Vs. Canara Bank cases respectively. Applicants further submitted that with a bonafide intention to settle the account under OTS the applicant has given a proposal vide letter dt: 23.02.2018 and 19.08.2017 but without considering the same, with a malafide intention and without any justification, the Authorized Officer of the respondent bank taken physical possession of the scheduled property and further issued the impugned Public Notice for e-auction for Sale of Immovable Properties dated 08.06.2018 and the same is also arbitrary and illegal. Applicants further submitted that the Authorized Officer has not obtained the correct valuation from the approved valuer as defined under Rule 8(5) of the Rules 2002, The Reserve price fixed by the Authorized Officer against the property including shed and fixtures is shabby and very low comparing with the existing market value of the said properties and the Authorized Officer with a malafide intention in collusion with the prospective, identified parties brought the unsecured assets and fixed the said reserve price at lower side. Moreover, the Authorised Officer ought to have appreciate that the Bank need not bring entire property for sale under the impugned e-Auction Sale Notice when sale of a portion/part of the property meets the entire liability of the Applicant herein. Applicants further submitted that the Respondent Bank and its officials have adopted a vindictive attitude against the Applicants herein and further submitted that the Respondent Bank has not followed the procedures contemplated u/s. 13(2) & 13(4) of the SARFAESI Act and Rule 8(1), (2), (5), (6) and 9(1) of the Security Interest (Enforcement) Rules, 2002 against the secured assets and in view of above and applicants filed the present SA appeal and prayed to (a) to declare that the Public Notice for e-Auction for Sale of Immovable Properties' dated 08.06.2018 issued by the Respondent Bank fixing the date of auction on 30.06.2018 under the provisions of SARFAESI Act and Rules, 2002 against the schedule properties as null and void; (b) to declare that all consequential measures in pursuant to the auction dated 30.06.2018 in pursuant to the e-auction Sale Notice dated 08.06.2018 issued by the Respondent Bank against the schedule properties under the provisions of SARFAESI Act and Security Interest (Enforcement) Rules, 2002 as illegal and arbitrary; (c) to Set aside all the measures initiated u/s. 13(2) & 13(4) of the SARFAESI Act and Rules, 2002 against the schedule property by the Respondent Bank; (d) Order to re-deliver the schedule property to the Applicants henceforth; (e) to declare that the reserve price fixed by the Respondent Bank is low and the same is without any justification; (f) to declare that the issuance of impugned notices including taking physical possession of schedule property under the SARFAESI Act and Rules, 2002 while the OTS proposal pending is without any justification and consequently direct the Respondent Bank to consider the OTS proposals and settle the account; (g) to direct the Respondent Bank to pay costs including the damages and compensatory costs of Rs. 20 lakhs to the Applicants.

3. Reply has been filed by the respondent bank denying the SA averments and further submitted that the present SA has became infructuous since the sale has not been materialized since there are no bidders as such SA became infructuous and is liable to be dismissed on that ground alone itself and respondent bank further submitted that the Application is devoid of any merit or substance and it is grossly motivated only with an evil intention to stall the recovery proceedings of the Respondent Bank being carried out under due process of law, hence the Application is liable to be dismissed. The Respondent submits that the averments made in para 5(1) of SA that Applicant No. 1 is the partnership firm engaged in the business of over burden mining excavation near Ranchi, Jharkhand State and in the course of the business, the Applicants have approached the Respondent Bank, in the year 2012 for availing Cash Credit facilities to the extent of the Rs. 93 lakhs and on the request of the Applicants the Respondent Bank has sanctioned the same and while availing the said financial assistance the Applicants have executed certain documents in the favour of the Respondent Bank are all matter of the record but the allegation in said para that time the officers of the Respondent Bank have obtained signatures of the Applicants as well as the guarantors on the a bunch of the blank printed documents for the reasons best known to them are all not true and correct and hereby denied. The Respondent further submitted that Applicants were irregular in repayment of interest and a such loan account has been classified as NPA as per RBI guidelines and Banking norms and as such Respondent Bank imitated measures under SARFAESI Act for realization of dues by the applicant and question of regularizations of the loan account does not arise and applicants have to pay entire outstanding due amount with interest and costs etc. and further submitted that there is no mala-fide intention on part of the respondent Bank and Bank has initiated measures under SARFAESI act for realization of dues by the applicant. The respondent bank further submitted that the Applicant have filed an MA to set aside the same vide MA No. 2/2018 which is pending for adjudication is all matter of record. The Respondent bank further submitted that applicants filed in SA 296/2017 in this Tribunal and applicants admitted availing loan facility and also measures taken under SARFAESI Provisions and in said SA this Tribunal gave an order in IA 1304/2017 dt: 15.12.2017 and is follows: " Counter filed by the respondent bank. Considering the facts and circumstances of the case, I feel it is just and necessary to grant stay of all further proceedings on the condition of petitioner depositing Rs. 20 lakhs into respondent bank within fifteen days from the date of the order and another Rs. 20 lakhs into respondent bank within fifteen days thereafter. Hence the Petitioner is directed to deposit at least Rs. 20 lakhs into the respondent bank within fifteen days and another Rs. 20 lakhs into respondent bank within fifteen days thereafter and the respondent bank is directed to stay all further proceedings initiated under SARFAESI Act in respect of schedule mentioned properties and in the event of petitioner failing to deposit any of the above said amounts into the respondent bank within the stipulated time, the respondent bank is at liberty to proceed further as per rules and the stay so granted shall stand automatically vacated" and posted for compliance but the applicant has not paid any amount and said SA was posted to arguments number of times and on 03.01.2018 this Tribunal passed an order as follows: "the applicant is not ready for arguments, inspite of conditional order dt: 08.11.2017. Hence this SA is dismissed for non prosecution of the matter as the applicant has no interest to prosecute the matter, however without costs" and said SA copy and IA and SA order copies are filed as document Nos. 1 to 3 for perusal of Tribunal.. The Respondent submits that applicants are estopped and making false allegations in this SA and as per pleadings of applicant in SA 296/2017 that respondent followed provisions of SARFAESI act and also committed default. The Respondent bank further submitted that Applicants were irregular in repayment of interest and a such loan account has been classified as NPA as per RBI guidelines and Banking norms and as such respondent initiated measures under SARFAESI Act for realization of dues by the applicant and question of regularization of the loan account does not arise and applicants have to pay entire outstanding amount with interest and costs etc to respondent bank. The Respondent bank further submitted that u/s. 13(4) possession notice was served on applicants and said possession notice is filed by applicants in SA 296/2017 itself and Respondent bank have affixed Possession notice on mortgaged property and published in two newspapers as per provisions of SARFAESI Act and the same are filed as Document No's 4 & 5 for perusal of Tribunal. The respondent bank submitted bank had filed a petition against the applicants u/s. 14(1) of Securitization Act in CF No. 724/2017 on the file of Chief Metropolitan Magistrate Court, Vijayawada and Respondent also filed Crl. MP No. 441/2017 for appointment of Advocate Commissioner to break open the locks of the schedule property, in which the Court was issued Commissioner Warrant the said Warrant along with a letter dt: 19.07.2017 to the Applicants disclosing therein a stern warning that "if it is locked, the Advocate Commissioner will break open the lock and move the belongings of the applicants to outside the schedule property at their risk and responsibility and take vacant possession of the house" and same is also stated by applicants in SA 296/2017 and said documents are filed by applicants in said SA and respondent bank has taken physical possession of property on 17.12.2017 through Advocate commissioner appointed by CMM court at Vijayawada and same is acknowledged by applicants on the Advocate commissioner Notice/Letter and also conducted inventory and photo taking delivery and the same are filed as document Nos. 6 to 8 for perusal of Tribunal. The Respondent bank further submitted that sale has not been materialized since there are no bidders and followed the procedure contemplated provisions of SARFAESI Act. The Respondent bank further submitted that valuation report was obtained under provisions of SARFAESI Act and reserves price was fixed as provisions of SARFAESI Act and however sale has not been materialized since there are no bidders. The Respondent bank further submitted that it sent a letter by registered post dt: 30.06.2018 to applicants to take delivery of the articles in the mortgaged property as per inventory before 15.07.2018 but there was no response by the applicants and said document is filed as document No. 9 for perusal of Tribunal and further submitted that respondent bank has meticulously followed the provisions of SARFAESI Act and keeping in view of the above, respondent bank prayed to dismiss this SA. Along with reply, respondent bank filed list of documents viz. SA 296/2017 Application Copy dt: 08.09.2017; IA 1304/2017 Order copy in SA dt: 15.09.2017; SA 296/2017 Order Copy dt: 03-01-2018; Possession Notice along with Postal receipts and Postal Acknowledgments; Photo affixture of Possession Notice dt: 28.07.2016; Paper Publications of Possession Notice published in Andhra Jyothi and The New Indian Express dt: 04.08.2016; Inventory dt: 17.12.2017 Photo evidence taking delivery dt: 17.12.2017; Advocate commissioner Notice dt: 17.12.2017 and Letter of Bank along with Postal receipts dt: 30.06.2018 respectively.

4. Memo dt: 03.07.2018 has been filed by the respondent bank submitted that e-auction sale dt: 14.06.2018 for the sale of the property relating to above loan account but the sale could not take place due to want of bidders.

5. The point for consideration is whether the applicants are entitled for (a) declaring the Public Notice for e-Auction for Sale of Immovable Properties dated 08.06.2018 issued by the Respondent Bank fixing the date of auction on 30.06.2018 under the provisions of SARFAESI Act and Rules, 2002 against the schedule properties as null and void (b) to declare that all consequential measures in pursuant to the auction dated 30.06.2018 in pursuant to the e-auction Sale Notice dated 08.06.2018 issued by the Respondent Bank against the schedule properties under the provisions of SARFAESI Act and Security Interest (Enforcement) Rules, 2002 as illegal and arbitrary (c) to Set aside all the measures initiated u/s. 13(2) & 13(4) of the SARFAESI Act and Rules, 2002 against the schedule property by the Respondent Bank (d) Order to re-deliver the schedule property to the Applicants henceforth (e) to declare that the reserve price fixed by the Respondent Bank is low and the same is without any justification (f) to declare that the issuance of impugned notices including taking physical possession of schedule property under the SARFAESI Act and Rules, 2002 while the OTS proposal pending is without any justification and consequently direct the Respondent Bank to consider the OTS proposals and settle the account (g) to direct the Respondent Bank to pay costs including the damages and compensatory costs of Rs. 20 lakhs to the Applicants as prayed for or not.

6. Heard both sides. Ld Counsel for applicants argued that declaration of loan account of the applicant is illegal and not as per the guidelines of RBI. Ld Counsel for applicants further submitted that possession of the schedule mentioned property was taken illegally without following due process of law and therefore Ld Counsel for applicants argued to redeliver the possession of the schedule mentioned property to the applicants. Ld Counsel for applicants further submitted that sale notice was issued without issuance of prior sale notice u/r 8(6) of Security Interest (Enforcement) Rules, 2002 and therefore Ld Counsel for applicants argued to set aside the sale notice since the same was issued illegally without following SARFAESI Act, 2002. Ld Counsel for applicants further submitted previously SA 296/2017 was dismissed for default and not on merits. Therefore, Ld Counsel for applicants raised for defences in the present SA since previous SA 296/2017 was dismissed for default and not on merits and keeping in view of the above, Ld Counsel for applicants prayed to allow the present SA appeal. On the other hand, Ld Counsel for respondent bank argued that applicants are not entitled for redelivery of the possession of the schedule mentioned property since respondent bank followed the entire process laid down under law only and not violated provisions of SARFAESI Act, 2002 and therefore, Ld Counsel for respondent bank prayed to dismiss this SA appeal.

7. It is the case of the applicants that Applicant No. 1 is a partnership firm and in the year 2012 availed Cash Credit facilities to the extent of Rs. 93 lakhs and Applicants had executed all necessary documents of loan in favour of the Respondent Bank. It is the case of the applicants that due to the market conditions the Applicant firm ran into temporary liquidity crunch for last several months forcing the Applicants to delay making payments to the Respondent Bank. Therefore, admittedly applicants failed to repay the installments into the loan account of the applicants as per terms of the sanction letter as such the loan account of the applicants was declared as NPA in accordance with the guidelines of RBI from time to time. Therefore, it cannot be said that the loan account of the applicants was declared as NPA illegally without following the guidelines of RBI. Thereafter, respondent bank issued u/s. 13(2) demand notice dt: 19.04.2016 and demanded the applicants to pay an amount of Rs. 93,61,165/- as on 31.03.2016 within the period of 60 days from the date of receipt of demand notice. After expiry of mandatory period of 60 days, respondent bank issued u/s. 13(4) possession notice on 03.10.2015. But, the applicants contended that u/s. 13(4) possession notice on 03.10.2015 was not served on the applicants. But, respondent bank contended that u/s. 13(4) possession notice was served on applicants and said possession notice was filed by applicants in SA 296/2017 itself and Respondent bank have affixed Possession notice on mortgaged property and published in two newspapers as per provisions of SARFAESI Act and the same are filed as Document No's 4 & 5 in reply submitted by the respondent bank for perusal of Tribunal. Respondent bank contended that the respondent bank had filed a petition against the applicants u/s. 14(1) of Securitization Act in CF No. 724/2017 on the file of Chief Metropolitan Magistrate Court, Vijayawada and Respondent bank also filed Crl. MP No. 441/2017 for appointment of Advocate Commissioner to break open the locks of the schedule property and the Court issued Commissioner Warrant and the said Warrant along with a letter dt: 19.07.2017 was served on the Applicants disclosing therein a stern warning that "if it is locked, the Advocate Commissioner will break open the lock and move the belongings of the applicants to outside the schedule property at their risk and responsibility and take vacant possession of the house". Thereafter, respondent bank taken physical possession of the schedule mentioned property on 17.12.2017 through Advocate commissioner appointed by CMM Court at Vijayawada and same was acknowledged by applicants on the Advocate commissioner Notice/Letter and respondent bank also conducted inventory and photo taking delivery and the same are filed as document Nos. 6 to 8 for perusal of Tribunal along with reply submitted by respondent bank. Respondent bank filed copy of Inventory dt: 17.12.2017 and Photo evidence taking delivery dt: 17.12.2017; Advocate commissioner Notice dt: 17.12.2017 and Letter of Bank along with Postal receipts dt: 30.06.2018 respectively for perusal of Tribunal. Therefore, it cannot be said that respondent bank had illegally taken possession of the schedule mentioned property. Applicants contended that without issuing notice u/r 8(6) of Security Interest (Enforcement) Rules, 2002 respondent bank put the schedule mentioned property for sale. Notice u/r 8(6) of Security Interest (Enforcement) Rules, 2002 must be issued before issuance of sale noti

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ce u/r 9(1) of Security Interest (Enforcement) Rules, 2002. However, the e-auction notice dt: 08.06.2018 with auction to be held on 30.06.2018 could not be materialized for want of bidders. Further, respondent bank has not filed any documentary evidence to prove that prior sale notice u/r 8(6) of Security Interest (Enforcement) Rules, 2002 was issued and served on applicants. Therefore, it is crystal clear e-auction notice dt: 08.06.2018 issued u/r 9(1) of Security Interest (Enforcement) Rules, 2002 with auction to be held on 30.06.2018 was illegal since respondent bank not issued that prior sale notice u/r 8(6) of Security Interest (Enforcement) Rules, 2002 and also not served on applicants. Therefore, e-auction notice dt: 08.06.2018 issued u/r 9(1) of Security Interest (Enforcement) Rules, 2002 with auction to be held on 30.06.2018 is not valid under law. 8. Therefore, according the facts and circumstances of the case and upon perusal of documents filed by the both parties, it is crystal clear that respondent bank issued u/s. 13(2) demand notice & u/s. 13(4) possession notice and the same was published in newspapers and also affixed u/s. 13(4) possession notice on the conspicuous part of the schedule mentioned property as per mandatory provisions of SARFAESI Act, 2002 and inventory made at the time of taking possession of schedule mentioned property and photo evidencing taking delivery and Advocate Commissioner's notice and its receipt. Therefore, from the above it is crystal clear that respondent bank has followed law upto section 13(4) of SARFAESI Act, 2002 and taking physical possession of schedule mentioned property. Therefore, considering the facts and circumstances of the case, I am of considerable opinion that applicants are not entitled for redelivery of the schedule mentioned property. Further, in the case on hand respondent bank has not filed any documentary proof that rule 8(5) & 8(6) of Security Interest (Enforcement) Rules, 2002 was followed. Therefore, e-auction notice dt: 06.08.2018 with date of auction on 30.06.2018 is liable to be set aside. However, e-auction schedule be held on 30.06.2018 could not be materialized for want of bidders. Therefore, the present SA is party allowed and e-auction notice dt: 06.08.2018 with date of auction on 30.06.2018 is to be set aside. Respondent bank is entitled to proceed further under SARFAESI Act, 2002 afresh. In the result, the present SA is partly allowed by setting aside the e-auction notice dt: 06.08.2018 with date of auction on 30.06.2018. However, respondent bank is directed to proceed afresh by following notices u/r 8(5); 8(6) & 9(1) of Security Interest (Enforcement) Rules, 2002 for realization of outstanding dues by applicants to respondent bank. Accordingly, IA 1124/2018 (Stay Petition) is closed. Each party do bear their costs. Let the copy of the order be made available to the parties as per rules. [Dictated to PS, transcribed by him and corrected and pronounced by me in the open court on this 1st day of January, 2020.]
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