Jharkhand High Court
M/S Bhasker Electric Company vs Central Bank Of India on 20 December, 2021
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2696 of 2019
M/s Bhasker Electric Company, through one of its partners Sushma
Devi, Ranchi ... ... Petitioner
Versus
1. Central Bank of India, having its Central Office at Mumbai through
its Chairman-cum-Managing Director
2. Assistant General Manager (Recovery), Central Bank of India,
Central Office at Mumbai
3. Zonal Manager, Central Bank of India, Zonal Office, Patna
4. Regional Manager, Central Bank of India, Regional Office, Ranchi
5. Branch Manager, Central Bank of India, Main Road Branch, Ranchi
6. Authorised Officer, Central bank of India, Regional Office, Ranchi
7. M/s Vinayak Support Services (Pvt.) Limited, Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner : Mr. Sudarshan Srivastava, Advocate For the Respondent Nos.1 to 6 : Mr. P.A.S. Pati, Advocate For the Respondent No. 7 : Mr. Sumeet Gadodia, Advocate
-----
Order No. 13 Dated: 20.12.2021 The present writ petition has been filed for quashing order dated 10.04.2019 passed by the Debt Recovery Appellate Tribunal, Allahabad in Appeal Serial No. 31 of 2018, whereby the appeal preferred by the petitioner under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act, 2002") against the order dated 27.02.2018 passed by the Presiding Officer, Debts Recovery Tribunal, Ranchi in S.A No. 13 of 2018 has been rejected. Further prayer has been made for quashing the Sale Certificate dated 23.02.2018 issued in favour of the respondent no. 7 pursuant to e-auction sale held on 16.02.2018.
2. The factual background of the case as stated in the writ petition is that the petitioner being a partnership firm availed credit facilities of Rs. 110 lakhs sanctioned by the respondent-bank on 10.11.1997 which was subsequently enhanced to Rs. 120 lakhs on 16.02.1999 and further enhanced to Rs. 147 lakhs on 14.09.2000. Thereafter, the said limit was reduced to Rs. 120 lakhs on 01.04.2002. One of the partners of the petitioner namely, Rajendra 2 Singh, husband of Sushma Devi stood as guarantor for the said loan and also mortgaged his immovable property along with the immovable properties of another guarantor namely, Sushma Devi (three sale deeds kept as secured asset) for securing the loan. One more person namely, Vinay Kumar Singh also stood as guarantor. In the year 2004, the loan account became sticky as a result of which the account was classified as NPA on 31.03.2004 and at that time, the outstanding dues was to the tune of Rs. 1,47,48,616.37. The respondent-bank issued notice under Section 13(2) of the SARFAESI Act, 2002 and upon receipt of the said notice, the petitioner filed objection under Section 13(3-A) of the SARFAESI Act, 2002, however, the respondent-bank did not dispose of the said representation within the stipulated period. Thereafter, the respondent no. 6 issued possession notice on 03.08.2007 in terms of Rule 8(1) of the Security Interest (Enforcement) Rules, 2002. The petitioner filed SARFAESI Application being S.A No. 18 of 2007 before the Debts Recovery Tribunal, Ranchi and the said application was allowed in terms with order dated 21.10.2020. In compliance of the order dated 21.10.2010, the respondent no. 6 issued fresh demand notice dated 23.02.2011 under Section 13(2) of the SARFAESI Act, 2002 with direction to deposit a sum of Rs. 2,82,31,947/- (principal amount plus interest due on the date of the said notice) within a period of 60 days, failing which appropriate step under Section 13(4) of the SARFAESI Act, 2002 was warned to be taken. The said demand notice was followed by issuance of possession notice under rule 8(1) of the Rules, 2002 with respect to the mortgaged properties which was also published in two leading newspapers in compliance of rule 8(2) of the Rules, 2002. After issuance of possession notice with respect to the mortgaged properties, the petitioner approached the bank for settlement of the outstanding dues of Rs. 212 lakhs which was duly sanctioned by the bank in terms of letter dated 15.03.2012, however, out of the sanctioned compromise amount, the petitioner could deposit Rs. 80 lakhs only and the remaining balance of OTS amount could not be deposited due to paucity of fund. Upon failure of the petitioner to follow the terms and conditions of the OTS 3 proposal, the respondent-bank took physical possession of the property by invoking Section 14 of the SARFAESI Act, 2002 on filing an application before the Deputy Commissioner-cum-District Magistrate, Ranchi which was allowed in terms of order dated 21.09.2013. In the meantime, the respondent-bank published e-auction sale notice dated 11.01.2018 in daily newspapers "Prabhat Khabar" and "The Times of India" dated 12.01.2018, whereby the immovable properties as detailed in e-auction sale notice were scheduled to be e-auctioned on 16.02.2018 by fixing only one reserve price amounting to Rs. 1,72,37,000/- for two secured properties. The petitioner with an intention to liquidate the outstanding dues of the bank, filed representation dated 12.01.2018, proposing Chief Manager, Central Bank of India, Main Road Branch, Ranchi to settle the entire outstanding loan for a sum of Rs. 132 lakhs out of which Rs. 10 lakhs was deposited immediately with request to keep the said amount in „No Lien Account‟ of the bank and the remaining amount of Rs. 122 lakhs was agreed to be deposited within one month after sanction of the compromise proposal. The said compromise letter was forwarded to all concerned authorities of the bank including the AGM (Recovery), Central Bank of India, Central Office, Mumbai so that the appropriate authority of the bank could take an immediate decision on the proposal of the petitioner. Thereafter, one of the representatives of the partnership firm namely, Mr. Lalan Singh also approached the Central Bank of India, Central Office, Mumbai and upon much persuasion, the respondent no. 2 agreed to settle the entire outstanding dues for a sum of Rs. 132 lakhs under the Special OTS Scheme. Thereafter, the petitioner was directed to deposit the remaining amount of settlement with the Branch and the representative of the petitioner was informed that Central Office, Mumbai had already forwarded and communicated the letter with respect to the compromise to the respondent nos. 4 and 5, however, when the petitioner moved before the respondent nos. 4 and 5, they failed to take cognizance of verbal request of the petitioner and told that the property would be sold at any cost. The petitioner filed a writ petition being W.P.(C) No. 662 of 2018 for 4 setting aside the e-auction notice dated 11.01.2018 which was disposed of on 15.02.2018 with a direction to the petitioner to prefer application under Section 17 of the SARFAESI Act, 2002. The petitioner filed application being S.A No. 13 of 2018, however, the same was dismissed vide order dated 27.02.2018. The petitioner challenged the order dated 27.02.2018 before the Debts Recovery Appellate Tribunal, Allahabad in Appeal Serial No. 31 of 2018 which was also dismissed vide order dated 10.04.2019. Hence, the present writ petition.
3. Learned counsel for the petitioner submits that the bank has not complied the mandatory provisions of rule 8(6) of the Rules, 2002 inasmuch as no individual notice was ever served upon the borrower and the guarantors. The claim of the bank is that the e-auction sale notice dated 11.01.2018 was dispatched through three registered letters for services upon the borrower and the guarantors also enclosing copy of the dispatched proof of the registered letters dated 12.01.2018. However, on scrutiny of the said dispatch proof of the letters sent on 12.01.2018, the petitioner came to know that the said registered letters were delivered on 13.01.2018 by Ranchi University, which is apparent from the delivery report as obtained from Internet and also as per the report obtained from the postal department under RTI Act. In fact, the said registered letters were never served either upon the borrower or upon the guarantors. It is further submitted that on 22.10.2013, the immovable properties were sealed and locked under the orders of the Deputy Commissioner, Ranchi and thereafter the seals of the immovable properties were never broken or unlocked by any of the authorities including any officer of the bank and thus, the valuation report prepared at the instance of the bank appears to be merely a table work which has no value in the eye of law. The bank is claiming that the requirement of rule 8(7) of the Rules, 2002 has been complied by affixing the e- auction sale notice on conspicuous parts of the immovable properties, however, the photographs produced before the Debts Recovery Tribunal, Ranchi were not in relation to the sale notice dated 11.01.2018. Thus, by no stretch of imagination it can be said that 5 rule 8(7) of the Rules, 2002 was complied by the bank and thus due to non-fulfilment of the said mandatory provision, the petitioner‟s application/appeal ought to have been allowed and the sale conducted by the bank ought to have been set aside by the Debts Recovery Tribunal, Ranchi as well as the Debts Recovery Appellate Tribunal, Allahabad. It is further submitted that another application being S.A No. 32 of 2018 filed by one of the partners of the petitioner namely, Rajendra Singh is still pending for adjudication before the Debts Recovery Tribunal, Ranchi, wherein the applicant has challenged the e-auction sale notice dated 11.01.2018 and also the sale certificate issued in favour of the purchaser pursuant to e- auction sale conducted on 16.02.2018. Since another partner of the petitioner has individual interest in challenging the action of the respondent-bank with respect to his mortgaged property, the said SARFAESI Application has been filed by him before the Debts Recovery Tribunal, Ranchi for adjudication and the dismissal of appeal by the Appellate Tribunal should not come in the way of adjudicating the same. It is also submitted that the e-auction sale conducted at the instance of the bank is liable to be set aside at any stage due to non-compliance of the mandatory provisions of the Rules, 2002. The petitioner was not obliged to implead the auction purchaser as a party respondent in the proceeding pending before the Debts Recovery Tribunal, Ranchi especially in view of the fact that it had challenged the e-auction sale notice subsequent to which the auction sale was conducted at the instance of the bank. The petitioner cannot be deprived of its right to redeem the property under the Special OTS Scheme of the respondent-bank inasmuch as prior to e-auction sale of the property, the compromise offer given by the petitioner was duly approved by the AGM (Recovery), Central Bank of India, Central Office, Mumbai. The respondent nos. 3 to 5 were legally obliged under law to communicate the compromise acceptance letter to the petitioner well within time i.e., prior to e-auction sale scheduled to be held on 16.02.2018 so as to provide an opportunity to the petitioner to repay the entire dues under the Special OTS Scheme of the bank.
4. Learned counsel for the respondent-bank submits that the 6 bank was trying to accommodate the petitioner and OTS was sanctioned on 15.03.2012, but the same was not followed by it and thus lapsed. The petitioner has always adopted delaying tactics which is evident from the fact that it failed to deposit Rs. One Crore in compliance of order dated 02.12.2014 passed by learned Division Bench of this Court in LPA No. 123 of 2014. Later on, C.M.P No. 421 of 2014 was preferred by the petitioner for extension of time to deposit the said amount, but the same was rejected by this Court vide order dated 16.12.2014. It is further submitted that the dues of the bank was not cleared by the petitioner and hence, an auction proceeding was initiated fixing the date for e-auction on 20.03.2015. The petitioner was well aware of the demand notice and possession notice, but it did not challenge the same and even objection pertaining to the reserve price was also not made. The respondent- bank has duly followed the procedure as prescribed under the SARFAESI Act, 2002. The petitioner had given proposal on 12.01.2018 and the same was replied by the bank on 23.01.2018 stating that since e-auction process had already commenced by way of publishing e-auction sale notice dated 11.01.2018 in two leading newspapers namely, "Prabhat Khabar" (Hindi) and "The Telegraph"
(English), the said proposal was not worth consideration at that stage. Moreover, the Regional office of the respondent-bank had already communicated the Zonal Office on 18.01.2018 regarding commencement of e-auction sale process under the SARFAESI Act, 2002. The petitioner cannot take advantage of an internal advice of an authority for consideration of OTS. Once the bid was received on 17.01.2018 and the two mortgaged properties situated at Village- Morabadi in the names of Rajendra Singh and Sushma Devi were auction sold on 16.02.2018, sale certificate were issued to M/s Vinayak Support Services (Pvt.) Limited, Ranchi (the respondent no. 7) on receiving entire amount of Rs. 1,74,37,000/- and the sale deed was already executed in favour of the said respondent on 23.02.2018 apart from one more property of another guarantor for remaining recovery, there was no justification in accepting the advice of compromise in the interest of recovery. Therefore, the Presiding 7 Officer, Debts Recovery Tribunal, Ranchi called for a report in S.A No. 32/2018, which was submitted by the Executive Director, Central Bank of India on 29.09.2018 to the Registrar, Debts Recovery Tribunal, Ranchi. On perusal of the order dated 27.02.2018 passed in S.A No. 13 of 2018, it is evident that the petitioner did not press the issues with respect to non-service of demand and possession notice before the Debts Recovery Tribunal, Ranchi. Learned Debts Recovery Tribunal, Ranchi clearly observed that the cause of action which arose in the year 2011 could not be permitted to be pressed and challenged in the year 2018. Delaying tactics of the petitioner is apparent throughout the proceeding. Moreover, there is a specific finding of the Debts Recovery Tribunal, Ranchi and the Debts Recovery Appellate Tribunal, Allahabad regarding compliance of the mandatory provisions of the Rules, 2002 by the respondent-bank in the instant case without any procedural infirmity. The petitioner has been given ample time and opportunity to redeem its property, but from very inception, it has tried to somehow linger the process of recovery of public money and as such, it is not entitled to get any relief from this Court. Once the property is auction sold, no right of redemption survives.
5. Learned counsel for the respondent no. 7 submits that the internal communications between the bank officials cannot confer legal right upon the petitioner. The petitioner cannot rely on the noting in the file which did not attain finality. It is further submitted that the power of judicial review cannot be exercised to interfere with the concurrent find of fact arrived at both by the Debts Recovery Tribunal, Ranchi and the Debts Recovery Appellate Tribunal, Allahabad. It is also submitted that the respondent no. 7 is a bonafide purchaser of the properties and sale certificate has also been issued to it after payment of full consideration and as such any interference by this Court to the said auction sale will cause great prejudice to the respondent no. 7.
6. Heard learned counsel for the parties and perused the materials available on record.8
7. The thrust of the argument of the learned counsel for the petitioner is that no individual notice for sale of the property in question was served upon the borrower and the guarantors and thus, the respondent-bank did not comply the mandatory provisions of rule 8(6) of the Rules, 2002 and on this score alone, the sale notice is liable to be set aside. Learned Debts Recovery Appellate Tribunal, Allahabad failed to consider the said vital contention of the petitioner and dismissed its appeal on the ground that it failed to implead the purchaser as party respondent.
8. In support of the said argument, the learned counsel for the petitioner has put reliance on a judgment rendered by the Hon‟ble Supreme Court in the case of "Mathew Varghese Vs. M. Amritha Kumar & Ors." reported in (2014) 5 SCC 610 wherein it has been held as under:
31. Once the said legal position is ascertained, the statutory prescription contained in Rules 8 and 9 have also got to be examined as the said Rules prescribe as to the procedure to be followed by a secured creditor while resorting to a sale after the issuance of the proceedings under Sections 13(1) to (4) of the SARFAESI Act. Under Rule 9(1), it is prescribed that no sale of an immovable property under the Rules should take place before the expiry of 30 days from the date on which the public notice of sale is published in the newspapers as referred to in the proviso to sub-rule (6) of Rule 8 or notice of sale has been served to the borrower. Sub-rule (6) of Rule 8 again states that the authorised officer should serve to the borrower a notice of 30 days for the sale of the immovable secured assets. Reading sub-rule (6) of Rule 8 and sub-rule (1) of Rule 9 together, the service of individual notice to the borrower, specifying clear 30 days' time-gap for effecting any sale of immovable secured asset is a statutory mandate. It is also stipulated that no sale should be affected before the expiry of 30 days from the date on which the public notice of sale is published in the newspapers.
Therefore, the requirement under Rule 8(6) and Rule 9(1) contemplates a clear 30 days' individual notice to the borrower and also a public notice by way of publication in the newspapers. In other words, while the publication in newspaper should provide for 30 days' clear notice, since Rule 9(1) also states that such notice of sale is to be in accordance with the proviso to sub-rule (6) of Rule 8, 30 days' clear notice to the borrower should also be ensured as stipulated under Rule 8(6) as well. Therefore, the use of the 9 expression "or" in Rule 9(1) should be read as "and" as that alone would be in consonance with Section 13(8) of the SARFAESI Act.
32. The other prescriptions contained in the proviso to sub-rule (6) of Rule 8 relates to the details to be set out in the newspaper publication, one of which should be in "vernacular language" with sufficient circulation in the locality by setting out the terms of the sale. While setting out the terms of the sale, it should contain the description of the immovable property to be sold, the known encumbrances of the secured creditor, the secured debt for which the property is to be sold, the reserve price below which the sale cannot be effected, the time and place of public auction or the time after which sale by any other mode would be completed, the deposit of earnest money to be made and any other details which the authorised officer considers material for a purchaser to know in order to judge the nature and value of the property.
33. Such a detailed procedure while resorting to a sale of an immovable secured asset is prescribed under Rules 8 and 9(1). In our considered opinion, it has got a twin objective to be achieved:
33.1. In the first place, as already stated by us, by virtue of the stipulation contained in Section 13(8) read along with Rules 8(6) and 9(1), the owner/borrower should have clear notice of 30 days before the date and time when the sale or transfer of the secured asset would be made, as that alone would enable the owner/borrower to take all efforts to retain his or her ownership by tendering the dues of the secured creditor before that date and time.
33.2. Secondly, when such a secured asset of an immovable property is brought for sale, the intending purchasers should know the nature of the property, the extent of liability pertaining to the said property, any other encumbrances pertaining to the said property, the minimum price below which one cannot make a bid and the total liability of the borrower to the secured creditor. Since, the proviso to sub-rule (6) also mentions that any other material aspect should also be made known when effecting the publication, it would only mean that the intending purchaser should have entire details about the property brought for sale in order to rule out any possibility of the bidders later on to express ignorance about the factors connected with the asset in question.
33.3. Be that as it may, the paramount objective is to provide sufficient time and opportunity to the borrower to take all efforts to safeguard his right of ownership either by tendering the dues to the creditor before the date and time of the sale or transfer, or 10 ensure that the secured asset derives the maximum price and no one is allowed to exploit the vulnerable situation in which the borrower is placed.
34. At this juncture, it will also be worthwhile to refer to Rules 8(1) to (3) and in particular sub-rule (3), in order to note the responsibility of the secured creditor vis-à-vis the secured asset taken possession of. Under sub-rule (1) of Rule 8, the prescribed manner in which the possession is to be taken by issuing the notice in the format in which such notice of possession is to be issued to the borrower is stipulated. Under sub-rule (2) of Rule 8 again, it is stated as to how the secured creditor should publish the notice of possession as prescribed under sub-rule (1) to be made in two leading newspapers, one of which should be in the vernacular language having sufficient circulation in the locality and also such publication should have been made seven days prior to the intention of taking possession. Sub-rule (3) of Rule 8 really casts much more onerous responsibility on the secured creditor once possession is actually taken by its authorised officer. Under sub-rule (3) of Rule 8, the property taken possession of by the secured creditor should be kept in its custody or in the custody of a person authorised or appointed by it and it is stipulated that such person holding possession should take as much care of the property in its custody as a owner of ordinary prudence would under similar circumstances take care of such property. The underlying purport of such a requirement is to ensure that under no circumstances, the rights of the owner till such right is transferred in the manner known to law is infringed.
Merely because the provisions of the SARFAESI Act and the Rules enable the secured creditor to take possession of such an immovable property belonging to the owner and also empowers to deal with it by way of sale or transfer for the purpose of realising the secured debt of the borrower, it does not mean that such wide power can be exercised arbitrarily or whimsically to the utter disadvantage of the borrower.
35. Under sub-rule (4) of Rule 8, it is further stipulated that the authorised officer should take steps for preservation and protection of secured assets and insure them if necessary till they are sold or otherwise disposed of. Sub-rule (4), governs all secured assets, movable or immovable and a further responsibility is created on the authorised officer to take steps for the preservation and protection of secured assets and for that purpose can even insure such assets, until they are sold or otherwise disposed of. Therefore, a reading of Rules 8 and 9, in particular, sub-rules (1) to (4) and (6) of Rule 8 and sub-rule (1) of Rule 9 makes it clear that simply because a secured interest in a secured asset is created by the borrower in favour of the secured creditor, the said asset in the event of the 11 same having become a non-performing asset cannot be dealt with in a light-hearted manner by way of sale or transfer or disposed of in a casual manner or by not adhering to the prescriptions contained under the SARFAESI Act and the above said Rules mentioned by us.
9. It has thus been held that compliance of the rules framed under the Rules, 2002 is mandatory in nature and on account of non-compliance of the same, the sale, if any, conducted at the instance of authorized officer of the bank is liable to be set aside even if the sale has been confirmed, possession has been delivered and sale deed has been executed.
10. The learned counsel for the petitioner has put further reliance on the judgment of the Hon‟ble Supreme Court rendered in the case of "Sardar Associates & Ors. Vs. Punjab & Sind Bank & Ors. reported in (2009) 8 SCC 257, wherein it has been held that a public sector bank is bound by the guidelines issued by the Reserve Bank of India and any deviation from such guidelines cannot be justified by the Board of Directors of a public sector bank taking recourse to a policy decision which is per se discriminatory.
11. The learned counsel for the respondent-bank has, however, refuted the factual contention of the learned counsel for the petitioner and has contended that individual notice was duly served upon the petitioner through registered post which was booked at GPO, Ranchi and was delivered through the Ranchi University Post Office. The said fact would be evident from the factual finding arrived at by the Debts Recovery Tribunal, Ranchi and the Debts Recovery Appellate Tribunal, Allahabad and as such the said concurrent finding of fact may not be interfered by this Court under writ jurisdiction.
12. The learned counsel of the respondent no. 7 has put reliance on a judgment rendered by the Hon‟ble Supreme Court in the case of "Union Bank of India Vs. Chandra Kanta Gordhandas Shah" reported in (1994) 6 SCC 271, wherein it has been held that if the trial court and the appellate court, who are entrusted with the duty of investigating into the questions of fact, record concurrent findings thereon on proper discussion and 12 appreciation of the materials placed before them, the High Court should not interfere with or disturb those findings while sitting in judgment over the same in its writ jurisdiction.
13. Learned counsel for the respondent no. 7 has put further reliance on a judgment rendered by the Hon‟ble supreme Court in the case of "Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Ors." reported in (1997) 3 SCC 657, wherein it has been held that judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in a proceedings under Article 226 does not act as an appellate authority, rather exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice.
14. The learned counsel for the respondent no. 7 has also put reliance on a judgment rendered by the Delhi High Court in the case of "State Bank of India Vs. Satish Kumar Mittal" reported in 2018 SCC OnLine Del 8331, wherein the learned Bench after referring few judgments of the Hon‟ble Supreme Court has held that where two views on a proved fact are possible, the concurrent possible view taken by the Courts below should not be interfered unless the same is perverse or against the canons of justice or against the law or is a biased one.
15. To appreciate the rival contentions of the parties, it would be appropriate to refer the order dated 27.02.2018 passed by the Debts Recovery Tribunal, Ranchi wherein the factual finding has been recorded that vide e-auction notice dated 11.01.2018, the bank issued intimation for sale of the mortgaged properties as mentioned therein which was sent to the borrower and other guarantors under registered posts which were also delivered on 13.01.2018 and 15.01.2018. The learned Debts Recovery Appellate Tribunal, Allahabad also, in the impugned order dated 10.04.2019 at para 15 has specifically held that as per the record submitted by the bank, the information letters regarding the sale notice dated 11.01.2018 were sent through registered post to the borrowers and guarantors 13 on 12.01.2018 and the track record submitted by the bank is sufficient to prove that the notices were delivered to the appellant. The sale notice was published in two newspapers placed at Page no. 119 and 120 of the paper book and was also affixed on the premises and as such, there was no procedural infirmity in publication of sale notice.
16. Thus, the Debts Recovery Tribunal, Ranchi and Debts Recovery Appellate Tribunal, Allahabad have given concurrent factual findings of fact that the sale notice was individually served to the petitioner through registered post. The learned counsel for the petitioner, in order to prove that the sale notice was not served to the petitioner, has brought on record letter dated 18.12.2018 issued by the Senior Superintendant of Post Offices, Ranchi Division, Ranchi in reply to RTI application of the petitioner dated 09.11.2018, whereby it has been informed that three registered letter nos. RJ191171314IN, RJ191171305IN and RJ191171291IN dated 12.01.2018 were delivered by Ranchi University on 13.01.2018. This Court is of the view that the said piece of evidence with respect to non-service of the sale notice cannot be accepted under the extraordinary writ jurisdiction. Had the petitioner obtained and produced the said evidence during adjudication of the matter before the Debts Recovery Tribunal, Ranchi or the Debts Recovery Appellate Tribunal, Allahabad, the learned Tribunals would have factually examined the issue. The petitioner has failed to explain as to why the said document which was obtained on 18.12.2018 could not be produced at least before the Debts Recovery Appellate Tribunal, Allahabad by taking leave of the learned Appellate Tribunal to adduce additional evidence. I am of the considered view that the said letter dated 18.12.2018 cannot be said to be a conclusive piece of evidence. Once the respondent-bank claimed that the sale notice was served to the petitioner and had also produced the track record to substantiate its claim, it was upon the petitioner to bring on record sufficient evidence to controvert it in accordance with law so as to deny the said claim of the respondent- bank. In absence of any such evidence, the Debts Recovery Tribunal, Ranchi and the Debts Recovery Appellate Tribunal, Allahabad have 14 given factual finding of fact that the sale notice was properly served to the petitioner.
17. Learned counsel for the petitioner has further put reliance on the judgment of learned Division Bench of Madras High Court rendered in the case of "P. Mohan Vs. The Authorised Officer"
(W.P. No. 8206 of 2018), wherein the court set aside the sale of the property in question on the ground that there was no 30 days‟ notice between the date of publication and sale. However, in the present case, for the reasons as aforesaid, no such procedural infirmity could be substantiated by the petitioner before this Court and as such, the ratio laid down in the said judgment will also not help the case of the petitioner.
18. The next limb of the argument of the learned counsel for the petitioner is that the compromise offer given by the petitioner was duly approved by the AGM (Recovery), Central Bank of India, Central Office, Mumbai and as such the petitioner cannot be deprived of his right to redeem the property under the Special OTS Scheme of the respondent-Bank.
19. To appreciate the said contention of learned counsel for the petitioner, this Court has gone through the judgment of the Hon‟ble Supreme Court rendered in the case of "Nareshbhai Bhagubhai & Ors. Vs. Union of India & Ors." reported in (2019) 15 SCC 1, wherein it has been held as under:
27. In [Bachhittar Singh v. State of Punjab, AIR 1963 SC 395] a Constitution Bench held that merely writing something on the file does not amount to an order.
For a file noting to amount to a decision of the Government, it must be communicated to the person so affected, before that person can be bound by that order. Until the order is communicated to the person affected by it, it cannot be regarded as anything more than being provisional in character.
28. Similarly, in Shanti Sports Club v. Union of India [Shanti Sports Club v. Union of India, (2009) 15 SCC 705] this Court held that notings recorded in the official files, by the officers of the Government at different levels, and even the Ministers, do not become a decision of the Government, unless the same are sanctified and acted upon, by issuing an order in the name of the President or Governor, as the 15 case may be, and are communicated to the affected persons.
20. One of the arguments of the learned counsel for the petitioner is that the valuer of the property could not inspect the properties since those were sealed at the relevant point of time and had merely prepared a table report. It is however, evident from the impugned orders that the said argument of the petitioner has duly been considered by the Debts Recovery Appellate Tribunal, Allahabad observing inter alia that the petitioner has failed to demonstrate as to how the property is undervalued. It has further been observed that neither contrary valuation report nor any other proof of circle rate higher than the present one was furnished before the Tribunal. The petitioner also failed to controvert the valuation of the property assessed by the valuer. Moreover, whether the property was inspected by the valuer is a question of fact which cannot be entertained in the writ jurisdiction that too when the learned courts below have rejected such factual plea of the petitioner.
21. Moreover, in the case of "L&T Housing Finance Ltd. Vs. Trishul Developers & Anr." reported in (2020) 10 SCC 659 as has been relied upon by the learned counsel for the respondent- Bank, the Hon‟ble Supreme Court has held that when an action is taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion regarding initiation of proceedings under the provisions of the SARFAESI Act, 2002 by the secured creditor, such action cannot be held to be bad in law merely on raising trivial objections which have no leg to stand unless the person is able to show any substantial prejudice being caused on account of such procedural lapse as prescribed under the Act or the rules framed thereunder. It has further been held that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudice, if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions.
22. Under the aforesaid facts and circumstance, this Court 16 does not find sufficient ground to interfere with the order dated 10.04.2019 passed by the Debt Recovery Appellate Tribunal, Allahabad in Appeal Serial No. 31 of 2018 and the order dated 27.02.2018 passed by the Debts Recovery Tribunal, Ranchi in S.A No. 13 of 2018. Hence, there is no reason to set aside the e-auction sale of the properties held on 16.02.2018.
23. The writ petition is accordingly dismissed.
(Rajesh Shankar, J.) Manish/AFR