Point of Law: Proceeding conducted against a dead person is bad in law.

JUDGMENT :

1. The respondent no.1-Rakesh Singh along with his father Bal Govind Singh and mother Kanti Devi took a housing loan from the petitioner-Bank. The mother Smt. Kanti Devi pledged the title deeds of her property as a collateral security. When the borrowers failed to pay the loan in terms of the repayment schedule, the Bank issued a demand notice on 6.10.2008 under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "SARFAESI Act") and demanded a sum of Rs.16,34,145.77. Thereafter a notice for possession was issued under section 13(4) of the SARFAESI Act on 14.6.2018 and symbolic possession of the property was taken. The mother Smt. Kanti Devi along with the respondent-Rakesh Singh and Sunita Singh, the wife of Rakesh Singh, filed a writ petition for the quashing of the recovery notice dated 15.6.2018. Along with this prayer, it was also prayed that the Bank may not take actual physical possession of the property. This writ petition was numbered as Writ-C No.23133 of 2018. However, the writ petition was dismissed on 10.7.2018 as being premature. Thereafter the mother of the respondent no.1, Smt. Kanti Devi along with two others filed one more writ petition being Writ-C No.38431 of 2018 which the counsel for the petitioners got dismissed on 26.11.2018 by stating that Smt. Kanti Devi had died after the filing of the writ petition and that the petitioners' counsel had instructions to withdrawn the writ petition as there was a likelihood of a settlement with the Bank. In the meantime, the Bank had issued sale notice on 6.11.2018 and had scheduled the auction for 10.12.2018. Since the borrower Kanti Devi who was also a person who had kept her personal property as a collateral security had expired on 21.11.2018, the respondent no.1 informed the Bank on 26.11.2018 to defer the auction. The Bank on 3.12.2018 requested the respondent no.1 to furnish the details of the legal heirs of Smt. Kanti Devi but did not defer the auction and on 10.12.2018 the property of Smt. Kanti Devi was auctioned as per the earlier fixed schedule. The respondent no.2 was declared the highest bidder. He, as a consequence thereof, deposited the entire amount and a sale certificate was also issued on 24.12.2018 in his favour. Challenging the action of the Bank, the respondent no.1-Rakesh Singh filed a Securitisation Application No.903 of 2018 and therein alleged that before the auction took place on 10.12.2018 and after the sale notice was issued on 6.11.2018, Smt. Kanti Devi had died on 21.11.2018 and without impleading the legal heirs and representatives of the deceased Kanti Devi, the auction had taken place which was bad in law. It was also alleged that in the period of 30 days after the sale notice the owner of the property or the borrower could have pleaded before the Bank for the liquidation of the dues. Also during the period of 30 days of notice, the owner of the property or the borrower could point out the discrepancy, if any, if was there in the proceedings. It was also alleged that the auction was bad as the owner of the property Kanti Devi had died on 21.11.2018 and the legal heirs and representatives of hers were not brought on record. Further it was argued that even the possession notice was bad in law as Sri Bal Govind Singh had died on 2.4.2015. It was, therefore, alleged that the possession notice; the sale notice and thereafter the auction, all were bad on account of the fact that Sri Bal Govind Singh had died on 2.4.2015 and Smt. Kant Devi had expired on 21.11.2018. The Securitisation Application was, however, dismissed by the Debts Recovery Tribunal. Viz-a-viz. the possession notice it was dismissed saying that the respondent no.1 did not inform about the death of the co-borrower Bal Govind Singh to the Bank at any point of time; the respondent-Bank had proceeded against the secured asset owned by the mortgagor Smt. Kanti Devi and sh