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2018 Supreme(Mad) 1161
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, V. BHAVANI SUBBAROYAN, JJ.
K. Saravanan - Petitioner
Versus
Vijaya Bank & Others - Respondents
W.P. No. 32841 of 2013 & M.P. No. 1 of 2013
Decided On : 08-03-2018
For the Petitioner:S. Ganesh, Advocate.
For the Respondents:S. Mohan, Advocate.
Headnote:
Right to Information Act, 2005 – Section 7 – Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13 – Loan Liability – Writ petitioner is carrying on Mineral Water business under the name and style of M/s. Aquerdhanaa Packaged Drinking Water Industries and availed PMEGP Loan (Prime Ministers Employment Generation Programme Scheme) and OD loan for running the business. – Petitioner, approached the first respondent bank by way of executing a loan agreement, in the name of the petitioner for PMEGP loan for a sum of Rs.19,85,000/- and OD loan of Rs.4,90,000/- being the principal amount at the rate of 11.25% of contractual rate of interest, as levied by the first respondent bank, on 16.11.2009. – Petitioner, wanted to reduce the loan liability, hence he repaid substantial dues of Rs.3,25,000/- and in the month of February 2010, requested the first respondent bank, to adjust the amount deposited towards subsidy under PMEGP scheme and further requested to give the correct calculation of the remaining loan dues. – Held, Perusal of the above reply would make it clear that for Section 13(2) demand notice, the petitioner has sent his representation/objections, by way of an application under the Right to Information Act, 2005, to the Public Information Officer, under the RTI Act and not to the Authorized Officer who had sent the demand notice. – Thus, representation/objection as contemplated under Section 13(3A) of the SARFAESI Act, has not at all been made by the petitioner to Section 13(2) notice. – As the petitioner, failed to discharge his liabilities, in full, within the period specified in the demand notice, issued under Section 13(2) of the Act, the first respondent bank by invoking Section 13(4) of the SARFAESI Act, issued Possession Notice and took symbolic possession of the secured asset on 26.11.2011. – The first respondent bank has also served possession notice to the petitioner via registered post on 01.12.2011. As the petitioners unit was closed, the first respondent bank affixed a copy of the possession notice at the entrance of the premises on 01.12.2011. – The first respondent bank has also published the possession notice in two leading dailies viz (i) New Indian Express (English Daily) and (ii) Dinamani (Tamil Daily) on 01.12.2011. – It is also acknowledged by the petitioner that possession notice was served on him on 07.12.2011, through registered post. – It is clear that the first respondent bank has duly complied with the provision of the SARFAESI Act and the Security Interest (Enforcement) Rules, 2002 while issuing the Demand Notice under Section 13(2) of the SARFAESI Act and Possession Notice under Section 13(4) of the SARFAESI Act r/w Rule 8 (1) & (2) of the Security Interest (Enforcement) Rules, 2002. – Therefore, we are of the considered view that the first respondent bank has not committed any irregularity in invoking the provisions of the SARFAESI Act and its Rules. – Court do not find that there is any material irregularity or illegality, in the order of the Appellate Tribunal, impugned in this writ petition, and the same is liable to be dismissed and accordingly dismissed. – Petition Dismissed
S. Manikumar, J.
1. Challenging the order dated 23.09.2013, passed by the 2nd respondent Debts Recovery Appellate Tribunal, Chennai, (in short 'the Appellate Tribunal') passed in RA(SA) No.92 of 2012, the petitioner has come forward with the instant writ petition.
2. Short facts leading to filing of the instant writ petition is as follows:
(i) The writ petitioner is carrying on Mineral Water business under the name and style of M/s. Aquerdhanaa Packaged Drinking Water Industries and availed PMEGP Loan (Prime Minister's Employment Generation Programme Scheme) and OD loan for running the business.
(ii) The petitioner, approached the first respondent bank by way of executing a loan agreement, in the name of the petitioner for PMEGP loan for a sum of Rs.19,85,000/- and OD loan of Rs.4,90,000/- being the principal amount at the rate of 11.25% of contractual rate of interest, as levied by the first respondent bank, on 16.11.2009.
(iii) The petitioner, wanted to reduce the loan liability, hence he repaid substantial dues of Rs.3,25,000/- and in the month of February 2010, requested the first respondent bank, to adjust the amount deposited towards subsidy under PMEGP scheme and further requested to give the correct calculation of the remaining loan dues.
(iv) The respondent bank, vide letter dated 20.06.2011, informed the petitioner, that if there are more than three installments in arrears, the account moves to NPA status and the bank will be constrained to initiate proceedings, under the SARFAESI Act, without further notice and advised the petitioner, to pay the arrears, within three days .
(v) The petitioner, in order to settle all the liabilities with the respondent bank, initiated negotiation for amicable settlement of the loan dues with the respondent bank.
(vi) But the respondent bank had chosen to initiate proceedings under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI Act') and issued notice dated 22.09.2011, demanding remittance of a sum of Rs.24,06,164/-, as on 22.09.2011, within 60 days from the date of the notice and threatened that the security interest in the immovable property, owned by the petitioner, would be enforced by the first respondent bank.
(vii) The petitioner after receipt of the demand notice dated 22.09.2011, approached the first respondent bank, under Section 5 r/w Section 7(1) of the Right to Information Act, 2005 seeking, inter alia, copy of agreement, entered into between the petitioner and the first respondent bank, with regard to the loan account, so as to calculate the actual dues.
(viii) The Central Public Information Officer, of the respondent bank, vide letter dated 14.11.2011, responded to the queries of the petitioner.
(ix) According to the petitioner, in spite of receiving the letter dated 22.09.2017, sent by the petitioner, the first respondent bank did not respond and thereby, violated the provision contained in Section 13(3-A) of the SARFAESI Act.
(x) The respondent bank, invoking the powers contained under Section 13(4) of the SARFAESI Act, issued a possession notice dated 26.11.2011, and informed the petitioner about the same, vide its letter dated 01.12.2011.
(xi) Challenging the issuance of possession notice dated 26.11.2011, under Section 13(4) of the SARFAESI Act, the petitioner filed S.A.No.368 of 2011, before the Debts Recovery Tribunal-III at Chennai (in short “the Tribunal”) on the following grounds:
(a) Section 13(3A) of the SARFAESI Act reply was given mechanically by the respondent without applying its mind.
(b) The impugned notice was issued not in accordance with the mandatory provisions of the SARFAESI Act and Rules.
(c) Penal interest was compounded and capitalised and the interest claimed is exorbitant and unilaterally lifted up.
(d) Demand Notice was not signed by the Authorised
