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.
-Versus-
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 :
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.
Sd/-
(Saurabh Rao)
District Magistrate, Nagpur
(By consent
of Hon’ District Magistrate)
True copy
Head Copyist,
Collectorate, Nagpur.
Translated
by: Adv. A.S. Murty.
