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2017 Supreme(Raj) 2486
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Ajay Rastogi, Deepak Maheshwari, JJ.
M/s. Karwa Trading Company – Appellant
Vs.
Bank of Baroda – Respondent
Special Appeal Writ No. 349 of 2017
Decided On : 20-09-2017
For the Appellant :Mr. N.K. Maloor, Sr. Advocate assisted by Mr. Arvind Gupta, Advocates
For the Respondent:Mr. R.K. Salecha, Advocate
Headnote:
SARFAESI Act, 2002 - Security Interest Act, 2002 - Section 17 - R.8 read with R.9 of the Security Interest (Enforcement) Rules, 2002- Security Interest - Respondent-Bank - Secured asset in terms of the procedure - Securitization and Reconstruction of Financial Assets and Enforcement of Security was served upon appellant borrower demanding sum and Bank took symbolic possession immovable property residential house and also issued notice of and an application was moved which to be allowed and with police assistance Bank took possession of the residential house which one mortgaged property of appellant-borrower –Held, Bank may not have any objection to release property Court consider it appropriate that in given facts & circumstances when letters were received from four prospective bidders with their offer ranging from and without going into further merits and the reserve price has been deposited by appellant borrower average of offer bid ranging between comes to approximate is further deposited by appellant-borrower which indeed has be appropriated Court find that will be adequate sum satisfy amount which residential housing property was put auction and Bank has also shown willingness to release property and in given circumstances appellant-borrower deserves indulgence for release of property after due compliance – Appeal allowed
Ajay Rastogi, J.
Instant intra-court appeal is directed against order of the ld. Single Judge dated 12.01.2017 setting aside order of the ld. Debt Recovery Tribunal dated 17.01.2014 confirmed by the ld. Debt Recovery Appellate Tribunal in the appeal preferred by the secured creditor (Bank of Baroda) dated 09.04.2015.
2. The brief facts of the case which are relevant and manifest from the record as alleged are that the respondent-Bank (secured creditor) inter-alia granted term loan of Rs. 100 lakh and cash credit limit of Rs. 95 lakh to the appellant (borrower) inter-alia against the security of two mortgaged properties namely (i) industrial plot situated at Chittor Road, Bundi measuring 500 Sq.Mtrs. and (ii) a residential/housing property situated at 1-Ja-27, Vikas Nagar, Bundi measuring 198 Sq.Mtrs. It reveals from the record that the appellant failed to repay the term loan, as per the terms & conditions of the agreement, the account of the appellant as alleged by the Bank became NPA on 31.10.2012 and in furtherance thereto notice under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI Act, 2002') dated 07.01.2013 was served upon the appellant borrower demanding a sum of Rs. 1,85,37,218.80p and the Bank took symbolic possession of the immovable property/residential house and also issued notice under section 13(4) of the SARFAESI Act, 2002 on 22.08.2013 and an application was moved under section 14 of the SARFAESI Act, 2002 which came to be allowed on 08.11.2013 and with the police assistance the Bank took possession of the residential house, which is one of the mortgaged property of the appellant-borrower, on 25.11.2013. The Bank issued a sale notice by public auction of the residential property dated 16.12.2013, with which we are presently concerned on the reserve price of Rs. 48.65 lakh for sale of the secured asset in terms of the procedure prescribed u/R.8 read with R.9 of the Security Interest (Enforcement) Rules, 2002 and the date of auction notified was 20.01.2014.
3. At this stage, the appellant-borrower challenged the action of the Bank by filing Securitisation Application (SA) No.09/2014 under section 17 of the SARFAESI Act, 2002 before the ld.Debt Recovery Tribunal, Jaipur on 11.01.2014 on manifold grounds. Written statement was filed by the Bank to the SA and the matter was taken up by the ld. Debt Recovery Tribunal for interim relief on 17.01.2014 and it was ordered that if the appellant-borrower deposits Rs. 20 lakh on 20.01.2014 by 12:00 Noon, the Bank shall accept the bids but not finalize the bids/confirm the sale of the secured asset and if the appellant-borrower commits default in payment of balance amount of Rs. 28.65 lakh, the restraint order will be vacated automatically and if the appellant-borrower deposits the reserve price of Rs. 48.65 lakh with the Bank on or before 27.01.2014, the Bank shall deliver the possession of the secured asset along with the original title deeds of the property in question to the borrower. The remittance of full amount of Rs. 48.65 lakh through RTGS & received by the Bank is not disputed.
4. Order of the ld.Debt Recovery Tribunal came to be challenged by the Bank in appeal before the ld.Debt Recovery Appellate Tribunal and the defence of the Bank before the ld.Appellate Tribunal was that in public auction the Bank had received bids ranging from Rs. 61.50 lakh to Rs. 71 lakh and the amount of debt due against the appellant-borrower at that point of time was Rs. 2 Crores and if at all the appellant-borrower is interested or keen to redeem the mortgaged property, he could do so by discharging the entire liability and not by making payment of Rs. 48.65 lakh, as ordered by the ld.Tribunal below and further averred that order of the ld.Debt Recovery Tribunal impugned is in violation of Section 13(8) of the SARFAESI Act, at the same time, counsel for the Bank further stated that the B
