ORDER

1. This Appeal is directed against the Order of Learned Presiding Officer, DRT, Bangalore in SA 139/2014 dated

27.08.2014.

2. Appellant filed Application under Section 17(1) of Secutisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (hereinafter called SARFAESI Act, 2002) to set aside the order passed by the XI Additional Chief Metropolitan Magistrate, Bangalore in C. Misc No. 46/2011 dated 27.07.2011 passed under Section 14 of SARFAESI Act, 2002.

3. Learned Counsel for Appellant submitted that there was no proper service of Notice under Section 13(2) of SARFAESI Act, 2002. Rule 3 of the Security Interest (Enforcement) Rules, 2002, (hereinafter referred to as Enforcement Rules, 2002) requires the Demand Notice under Section 13(2) of SARFAESI Act, 2002, shall be delivered personally, or through registered post with acknowledgement due, or by Speed Post or by courier or by any other means of transmission of documents like fax message or electronic mail service; If there is reason to believe that the borrower is avoiding service of the notice, or for any other reason, service cannot be made for the aforesaid, the service shall be effected by affixing copy of notice on the outer door or some other conspicuous part of the house or building in which the borrower or his agent ordinarily resides or carries on business or personally works for gain and also by publishing the contents of the demand notice in two leading newspapers, one in vernacular language, having sufficient circulation in that locality.

4. It is his further submission that SA 47/2011 was filed by Appellant stating that Section 13(2) Notice was not properly served, especially, service by affixture was not effected. Tribunal below, in its Order dated 19.06.2012 in SA 47/2011, recorded that the document Nos.1 and 2 indicate that the notice was sent to Appellant by RPAD and the same came to be returned with postal endorsement “left/returned to sender”. Paper publications of Section 13(2) Notice are document Nos. 3 and 4. No documents have been filed to show the service of notice by affixture.

5. The challenge to Possession Notice dated 18.12.2010 in SA 47/2011 came to be dismissed by DRT, on 19.06.2012. Immediately after dismissal of SA 47/2011, the Respondent Institution approached under Section 14 of SARFAESI Act, 2002, before XI Additional Chief Metropolitan Magistrate at Bangalore, to take possession. Learned XI Additional Chief Metropolitan Magistrate passed Order on 27.07.2011 directing the Respondent Institution to take possession of Schedule property with the help of Police. Challenging the said Order, SA 139/2014 was filed by the Appellant

6. It is the contention of the Learned Counsel for the Appellant that the grounds taken in SA 139/2014 are that, there is no proper classification of loan account as Non- Performing Asset (NPA); no proper service of Demand Notice and Possession Notice, and that order passed by Learned XI Additional Chief Metropolitan Magistrate, Bangalore, in C. Misc. 46/2011 dated 27.07.2011, under Section 14 of SARFAESI Act, 2002, is without jurisdiction. However, without considering the grounds taken, SA 139/2014 was dismissed. Therefore, this Appeal is filed.

7. In response to his submissions, Learned Counsel for Respondent Institution submitted that, SA 47/2011 filed against issuance of Section 13(4) Notice was dismissed by DRT, and no Appeal was filed as against order of dismissal, therefore, the issue of non-service of 13(2) Notice, cannot be agitated again, once it was considered and decided in SA 47/2011 by the Tribunal. Learned XI Additional Chief Metropolitan Magistrate has followed the procedure established by law while passing Order under Section 14 of the SARFAESI Act, 2002. Hence, there is no irregularity or illegality, and the defects if any, is only curable in nature, and it was also considered by Learned Presiding Officer, DRT, Bangalore, therefore, prayed for dismissal of this Appea