Allahabad High Court
Dayanath Pandey S/O Raghunath Pandey vs State Of U.P. Through It'S Secretary, ... on 18 February, 2008
Equivalent citations: 2008(2)AWC1255, AIR 2008 ALLAHABAD 103, 2008 (3) ALL LJ 189, (2008) 64 ALLINDCAS 848 (ALL), (2008) 2 BANKCAS 634, (2008) 2 ALL WC 1255, (2008) 70 ALL LR 849, (2008) 1 BANKCLR 758, 2008 (3) ALJ 189, 2008 (4) AKAR (NOC) 651 (ALL.) = AIR 2008 ALLAHABAD 103 2008 (4) ABR (NOC) 728 (ALL.) = 2008 (3) ALJ 189, 2008 (4) ABR (NOC) 728 (ALL.) = 2008 (3) ALJ 189
Bench: V.M. Sahai, R.N. Misra
JUDGMENT
V.M. Sahai and R.N. Misra, JJ.
1. We have heard Sri Anand Kumar Srivastava, learned Counsel for the petitioner, learned Standing Counsel for respondent No. 1, Sri H.R. Misra, learned Senior Counsel assisted by Sri K.M. Misra for respondent No. 2 and Sri Ghanshyam Joshi for respondent No. 3.
2. By way of this writ petition, the petitioner has challenged recovery proceedings initiated against him by the respondent No. 2. He has sought relief for quashing the entire recovery proceedings and to direct the respondent No. 2 Allahabad Bank to accept payment desired to be made by him.
3. It appears from the record that the petitioner applied to respondent No. 2 for loan amounting to Rs. 5 lacs only for construction of house. The loan was sanctioned and amount of Rs. 4,39,971/ was paid to the petitioner, which was to be refunded in 180 monthly instalment. The petitioner paid some amount from time to time but he could not regularly pay the instalments due to personal difficulties. The respondent No. 2 started recovery proceedings and put his house to auction. It has also been alleged in the writ petition that the petitioner is ready to deposit the entire amount due. The respondent No. 2 has also taken similar plea that the petitioner did not repay the loan and committed default, therefore, recovery proceedings were initiated under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as Act).
4. Annexure-2 to the writ petition is notice under Section 13(2) of the Act . This was dated 9.7.2007. Admittedly, this was served on the petitioner on 13.7.2007. Another notice dated 13.9.2007 was sent to the petitioner under Section 13(4) of the Act read with Rule 6(2) and Rule 8(6) of The Security Interest (Enforcement) Rules, 2002 ( hereinafter referred to as the Rules). After giving notice under Section 13(2) of the Act, possession of house of the petitioner was taken by the Bank on 10.9.2007. The period of sixty days given in the notice under Section 13(2) of the Act was to be counted from the date of notice and not from the date of service. However, this fact was not material in the present case because notice under Section 13(2) of the Act was issued on 9.7.2007 and same was served on the petitioner on 13.7.2007 and possession was taken on 10.9.2007, meaning thereby, possession was taken after sixty days of issuance of notice. The notice under Section 13(4) of the Act was dated 13.9.2007 and the house of the petitioner was put to auction on 12.10.2007. As required under Rule 6(2) and 8(6) of the Rules, a clear period of thirty days was to be given to the petitioner for paying dues. This fact was mentioned in the notice under Section 13(4) of the Act. In pursuance to that notice, sale proclamation was issued in the news paper 'Amar Ujala' on 13.9.2007, copy of which is paper No. 35 in the application dated 5.2.2008, which is part of affidavit of Sri M.S. Saroha, Assistant General Manager of respondent No. 2. This publication shows that notice was published on 13.9.2007 and date fixed for sale was 12.10.2007, meaning thereby date for sale was fixed on 29th day from the date of publication, which was clearly against the law. Admittedly, sale was made on 12.10.2007 and it was confirmed on the next day i.e on 13.10.2007, that was also illegal because clear period of thirty days from the date of notice was to be given to the petitioner for making payment as required by the law, but unfortunately entire sale proceedings were finished within thirty days of publication of the notice. The computation of period of notice had to be made under the provisions of Section 9 of U.P. General Clauses Act, 1904 which runs as under:
Section 9. Commencement and termination of time- In any (Uttar Pradesh) Act it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to".
5. Thus, the period of thirty or sixty days was to be counted excluding the date of issuance of notice. Admittedly, the sale certificate was issued on 26.10.2007 and sale deed was executed on 5.11.2007 in favour of the respondent No. 3, in spite of order dated 30.10.2007. The entire sale proceedings were illegal. This was prima-facie disobedience of order of the Court.
6. Vide order dated 16.1.2008, 31.1.2008 and 6.2.2008, we had directed the Bank authorities to show cause why their public accountability should not be fixed and they should not be taken to task for committing the aforesaid illegalities. In response to our notices, Sri M.S. Saroha, Assistant General Manager, Sri P.K. Mallick, Senior Manager and Sri Praven Kumar, Manager( Law) of respondent No. 2 have filed affidavits tendering unconditional apology. Not only this, respondent No. 3 Sanjiv Kumar, the purchaser of the house has also filed affidavit praying for cancellation of sale deed to avoid further complications. He has made request only for refund of price of house, stamp duty and registration charges etc. From the affidavit of the Bank authorities, we are satisfied that though they have committed mistake but there was no malafide on their parts. There was technical bonafide mistake in computing the period of notices and sale etc. Therefore, we accept their unconditional apology and do not pass any order against them. Any observation made against them shall not be treated as adverse.
7. The petitioner is ready to pay the amount due. The respondent No. 3 has no objection to it. Admittedly, the petitioner has already deposited first and second instalment as directed in our order dated 30.10.2007.
8. The writ petition is allowed and entire recovery proceedings is quashed. The sale deed of the disputed house dated 5.11.2007 executed in favour of respondent No. 3 is also cancelled. The respondent No. 3 will get back the amount paid by him as price of house and other charges as under:
(a) Rs. 5,10,000/ price of house.
(b) Rs. 72,700/ stamp fee.
(c ) Rs. 5020/ registration fee.
(d ) Rs. 1000/ Misc. charges.
9. Thus, total amount comes to Rs. 5,88,720/ (Five lacs eighty eight thousand seven hundred twenty only). The bank authorities agree that they will pay the said amount to respondent No. 3 within fifteen days.
The petitioner will repay the remaining amount of loan in two instalments as follows:
(I) Ist instalment by 15th May 2008.
(ii) IInd instalment by 15th August, 2008.
It is made clear that in case of default in the payment of any instalment, the Bank shall be at liberty to realize the entire dues according to law.
Let a copy of this order be sent to the Sub-Registrar concerned for information and necessary action.