Gujarat High Court
Manjula Natwarlal Chawda vs Authorzed Officer Of Dena Bank on 1 March, 2019
Equivalent citations: AIRONLINE 2019 GUJ 327
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/11407/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11407 of 2018
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MANJULA NATWARLAL CHAWDA
Versus
AUTHORZED OFFICER OF DENA BANK
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1
MR BHARAT JANI(352) for the Respondent(s) No. 2
MR SS PANESAR(560) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 01/03/2019
ORAL ORDER
1. The petitioner, by way of the present petition, has challenged the impugned order dated 16.1.2018 passed by the Debts Recovery Appellate Tribunal, Mumbai (DRAT, Mumbai), dismissing the Appeal No.155 of 2013 and confirming the order dated 3.8.2012 passed by the Debts Recovery Tribunal-II, Ahmedabad (DRT, Ahmedabad) in Securitization Application No.41 of 2011.
2. As per the case of the petitioner, the petitioner had obtained a loan of Rs.5,00,000/- from the respondent No.1 Bank on 5.7.2006 and the petitioner had mortgaged the properties being Shop No.103 situated on the ground floor and the Flat No.102 situated on the first floor, at Mahavir Complex, Palanpur Patiya, Surat in Page 1 of 5 C/SCA/11407/2018 ORDER favour of the respondent No.1 Bank by way of security for the repayment of the said loan amount. The petitioner could not make regular payment of instalments, and therefore, the respondent No.1 had issued the notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act') on 21.1.2008, demanding payment of Rs.5,42,328/- inclusive of interest as on 31.12.2007.
3. Since the petitioner could not make payment of the said outstanding amount, the respondent No.1 Bank had taken symbolic possession of the said mortgaged properties, which were the secured, assets on 22.1.2009. The respondent No.1 Bank thereafter had put the said properties to auction sale on 20.3.2010, however, no bidders came forward, and therefore, another auction sale notice was published on 2.4.2010. At that time, the said properties in question were sold to the respondent No.2 at a price of Rs.7,51,000/- and the sale certificate was also issued in favour of the respondent No.2 on 2.6.2010.
4. The present petitioner thereafter preferred the Securitization Application No.41 of 2011 before the DRT, Ahmedabad, challenging the measures taken by the respondent No.1 Bank under Section 13(4) of the SARFAESI Act. The said Page 2 of 5 C/SCA/11407/2018 ORDER Application was dismissed by the DRT, Ahmedabad, against which the petitioner had preferred an Appeal being No.155 of 2013 before the DRAT, Mumbai. The said Appeal also came to be rejected vide the impugned order dated 16.1.2018, and therefore, the petitioner has preferred the present petition.
5. Learned Advocate Mr.Premal Rachh for the petitioner submitted that the respondent No.1 Bank had under-valued the properties of the petitioner while putting the same in auction. According to him, the petitioner was ready to make payment of the entire dues of the Bank, however, she was not given proper opportunity before putting the properties to auction sale. He lastly submitted that the respondent No.2 was the wife of the ex-officer of the respondent No.1 Bank, and therefore, there was a collusion between the Bank and the respondent No.2.
6. Learned Advocate Mr.Bharat Jani for the respondent No.2 has relied upon the decision of the Supreme Court in case of Sadashiv Prasad Singh Vs. Harendar Singh and Ors., reported in (2015) 5 SCC 574 to submit that as the respondent No.2 was the bona fide purchaser in furtherance of duly publicised public auction, the High Court should not interfere on the ground of equity.
7. Having regard to the submissions made by the Page 3 of 5 C/SCA/11407/2018 ORDER learned Advocates for the parties, it appears that since the petitioner had failed to repay the loan amount, the properties mortgaged by her by way of security interest were put to auction after following the due procedure as contemplated in Section 13 of the SARFAESI Act. It is pertinent to note that the petitioner had not challenged the measures taken under Section 13(4) of the SARFAESI Act as back as in January 2009, till the action sale was finalized in favour of the respondent No.2. She had also not made any payment, nor challenged the said measures by filing appropriate proceedings before the DRT under Section 17 of the SARFAESI Act. It is further pertinent to note that the first notice for auction sale was published on 22.2.2010, however, no bidder had come forward, and therefore, the properties were put to auction second time by giving public notice in the newspapers on 2.4.2010 and at that time sale was made final in favour of the respondent No.2.
8. The grievance raised by the learned Advocate Mr.Rachh for the petitioner that the reserved price fixed by the respondent Bank was at a very low rate cannot be accepted at this stage. The notices by which the properties were put to auction were very much within the knowledge of the petitioner, however, she did not challenge the same and allowed the auction sale to be finalized. The petitioner neither paid the outstanding dues, nor challenged any of the Page 4 of 5 C/SCA/11407/2018 ORDER measures taken by the respondent No.1 Bank under Section 13(4) of the SARFAESI Act, till the auction was finalized and till the sale certificate was issued in favour of the respondent No.2 the auction purchaser. Therefore, it does not lie in the mouth of the petitioner to say that the reserved price was fixed at a very low rate and that the petitioner was not given opportunity to make payment of her outstanding dues. Merely because the respondent No.2 happens to be the wife of the former officer of the respondent Bank, it would not vitiate the auction sale which had become final as back as in 2010. Both the DRT, Ahmedabad and DRAT, Mumbai in their respective orders have dealt with the issues raised by the petitioner. Mr.Rachh has failed to point out any illegality or infirmity in the said orders. The present petition being sans merits deserves to be dismissed.
9. Accordingly, the present petition is dismissed.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 5 of 5