IMPORTANT POINT
Possession notice is mandatory before auction sale of mortgaged property.

Vikash Jain, J.—Heard learned counsel for the petitioner and learned counsel for the respondents.

2. The present writ petition has been filed for a direction to the respondent-bank to receive the entire outstanding amount against the cash credit account, to release the title documents pertaining to the land offered by the guarantor as security in terms of Section 13(8) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “SARFAESI Act”), and also to issue a no dues certificate against the said account; for quashing of the entire proceedings initiated by the respondent bank against the petitioner-firm in exercise of powers under the provisions of the SARFAESI Act including the notice of auction sale published by the respondent bank in the newspaper namely ‘Hindustan’ on 01.06.2012 in violation of Rule 8(6) proviso of the SARFAESI Rules 2002; and for connected reliefs.

3. According to the petitioner, a loan of Rs. 14,00,000/- was taken by the petitioner from the respondent-State Bank of India (for short, “the SBI”) in respect of which collateral security was furnished by one Sri Manindra Kumar Singh by way of equitable mortgage of a plot of land at Purnea measuring 43 decimals. The petitioner also furnished two fixed deposits of Rs. 75,000/- each and two bonds of SBI Life of Rs. 75,000/- each, which were pledged with the SBI. The petitioner did not repay the loan in time, leading the Bank to declare the account of the petitioner as NPA. The bank then resorted to proceedings purportedly under the SARFAESI Act, whereby the said plot of land was also sold in an auction to the respondent No. 4.

4. Learned counsel for the petitioner assails the action of the SBI as being wholly illegal and arbitrary as the mandatory provisions of the SARFAESI Act were not followed before the auction sale of the property. It is stated that even the mandatory notice under Section 13(2) of the SARFAESI Act was not served on the petitioner and the petitioner was not granted any opportunity to file its objections under Section 13(3-A) of SARFAESI Act. It is submitted that the possession notice issued subsequently under Section 13(4) of the SARFAESI Act,a demand notice consequently the auction sale, is therefore wholly illegal and without any authority of law.

5. It is next submitted on behalf of the petitioner that the property has been sold without observing the procedures laid down under the Security Interest (Enforcement) Rules, 2002. In particular, the mandatory requirement of service of a 30 days’ notice to the petitioner prior to such sale has not been observed. It is further submitted that the property has been grossly undervalued which is borne out from the fact that the reserve price of the land was fixed at Rs. 10,00,000/- and the sale made for a paltry sum of Rs. 17,02,000/-, even though the circle rate itself was Rs. 1,40,000/- per katha, meaning thereby that the property ought to have fetched a price in the region of around Rs. 60,20,000/-. It is submitted that despite willingness of the petitioner to make payment of the outstanding amounts, the SBI has sold the property to the respondent No. 4. It is stated that apart from the payments of Rs. 50,000/- and Rs. 23,000/- made on 05.03.2012 and 06.03.2012 respectively, the petitioner had prepared two bankers cheques, both dated 16.07.2012, for Rs. 8,50,000/- and Rs. 8,00,000/- respectively, which the SBI refused to accept, and which, upon such refusal, were despatched by the petitioner to the SBI on 12.10.2012 by speed post.

6. Learned counsel for the SBI, on the other hand, submits that the notice under Section 13(2) of the SARFAESI Act was duly served on the petitioner prior to the possession notice under Section 13(4) being issued. It is submitted that the procedure for sale was in accordance with the Rules, and a clear 30 days’ notice was given in the auction notice published 01.06.2012 wherein it was stated that offers