IMPORTANT POINT
When a person making an allegation of fraud, he should specifically plead and prove fraud committed by opposite party.

K. Kalyanasundaram, J.— This writ petition is filed to quash the order in R.A. (SA) No. 58 of 2011, made by the Debts Recovery Appellate Tribunal, Chennai and consequently, direct Respondent Nos. 1 and 2 to restore the possession of the Petitioner property.

2. Jayalaxmi Enterprises, the third Respondent herein, had availed loan from the first Respondent/Punjab & Sind Bank. Due to default in repayment of the loan amount, the first Respondent Bank had instituted a proceedings, in O.A. No. 1059 of 1998, before the Debts Recovery Tribunal-I, Chennai, to realise a sum of Rs. 85,98,636, under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDBFI Act, in short). The first Respondent Bank, having felt that the procedure was ineffective, had issued a notice, under Section 13(2) of the SRFAESI Act, dated 10.2.2005, demanding payment of Rs. 3,22,87,583. No reply or objection was made to the said notice, by the Petitioner or by the other borrowers. Subsequently, on 17.6.2005, the authorised officer of the first Respondent Bank had issued a notice under Section 13(4) of the SRFAESI Act, for taking symbolic possession of the secured assets, which was also not challenged by the parties.

3. The Petitioner laid a civil Suit, in C.S. No. 481 of 2007, before this Court, questioning the invocation of the SRFAESI proceedings against him and the sale of his property, by the Respondent Bank. In the suit, injunction was granted, on 30.5.2007 and subsequently, it was vacated, on 2.11.2007. The Appeal, in O.S.A. No. 264 of 2008, filed against the said order was dismissed, on 16.7.2010.

4. In the meanwhile, the Respondent Bank had moved an application, under Section 14 of the SRFAESI Act, before the Chief Metropolitan Magistrate, Chennai, in Cr. M. P. No. 2801 of 2009, to take possession of the secured asset. In pursuant to the order of the learned Chief Metropolitan Magistrate, Chennai, the Respondent Bank took possession of the property, on 30.6.2010.

5. In Securitisation Application No. 175 of 2010, before the Debts Recovery Tribunal-I, Chennai, the Petitioner challenged the notice issued under Section 13(4) of the Act, principally contending that the Respondent Bank acted illegally and highhandedly while taking possession, without taking inventory in his residential premises; that the demand notice, dated 10.2.2005, did not contain the details of non-performing account, as mandated under Section 32 of the SRFAESI Act; that he had made a complaint against the Respondent Bank for their fraudulent and other criminal acts, in taking possession of the property and when the enquiry is pending, the Respondent Bank ought not have resorted to forcible eviction and dispossession of the Petitioner’s family; that the Respondent Bank had no authority to invoke SRFAESI Act, when it had opted to get a decree in a proceeding initiated under RDDBFI Act and the proceedings initiated under Section 13(4) of the SRFAESI Act is barred by limitation. The Respondent Nos. 1 and 2 had resisted the Securitisation Application by filing detailed counter.

6. The Debts Recovery Tribunal-I, Chennai, had framed the points for consideration and held that as per the judgment of the Hon’ble Apex Court, reported in Transcore v. Union of India, AIR 2007 SC 712: (2008)1 SCC 125: LNIND 2006 S.C 1055: (2007)1 M.L.J. 929 even pending proceedings under Section 19 (1) of the RDDBFI Act, the secured creditors can invoke proceedings under the SRFAESI Act, to recover the dues. The Tribunal further held that in the proceedings initiated by the Respondent Bank, in O.A. No. 1059 of 1998, the Petitioner herein was the 6th defendant. On 13.5.2002, he assisted Mr. Karunanidhi, advocate, who represented all the defendants had stated that the defendants consented for the sale of the schedule mentioned properties, including the property mortgaged by the Petitioner herein. The Tribunal further held that the Petitioner, who is a guarantor, i