Proper notice under SARFAESI Act is a requirement; failure to notify change of address does not invalidate the sale process.

ORDER

1. This appeal is filed under Section 18 of the SARFAESI Act against the order passed by Learned Presiding Officer, DRT-I, Bangalore passed in SA 49/2015 dated 14.5.2018.

2. First respondent filed SA No.49/2015 challenging the issuance of Notice under Section 13(4) and subsequent auction proceedings initiated by the appellant bank as illegal, invalid and quash / set aside the same. .After contest, SA was allowed by Learned Presiding Officer, DRT-I, Bangalore mainly on the ground that appellant bank has not complied Rule 8(6) of Security Interest (Enforcement) Rules, 2002 with regard to service of notice of sale on the first respondent. Aggrieved by the said order this appeal is filed.

3. Learned Counsel for appellant submitted that it is not the first sale or for that matter, measures challenged by the first respondent. He challenged the earlier measures initiated for taking possession and sale of the secured asset. He filed SA 549/2010 challenging the possession notice and that was dismissed on 13.8.2010. Earlier sale notice was challenged in SA 307/2011 (IR No.1570/2011) and that was also dismissed. It is his further submission that absolutely there was no pleading with regard to the fact that sale notice was not served on the first respondent. Only an oral submission was made that first respondent had changed his address and that was intimated to the bank and despite that bank has not chosen to serve the notice on the new address. On the basis of this oral submission and without any supporting document to show as to whether the first respondent had intimated change of address through proper means to the bank, sale was set aside.

4. In continuation of his submission, Learned counsel for appellant bank brought to my notice the impugned sale notice dated 12.12.2014 fixing the sale on 29.1.2015. The address of first respondent has been clearly given in the sale notice. This notice was returned without receipt by the first respondent. It was returned to the appellant with an endorsement “left, not known”. Sale was intimated through publication in one vernacular newspaper and Times of India dated 22.12.2012. The sale notice was affixed in the secured asset. Copies of photograph of affixture are also produced. Thus, it is submitted by Learned Counsel for appellant that bank has scrupulously followed whatever measures required under the SARFAESI Act to be followed in the matter of sale.

5. Learned Counsel further submitted that demand notice was taken to the same address that was given in the sale notice. Demand notice dated 6.11.2009 was received by the first respondent. First respondent also sent reply dated 4.12.2009 to the demand notice, wherein the same address noted in the sale notice is typed. Appellant bank had also sent a reply to the reply sent by the first respondent on 10.12.2009 to the same address. It is further submitted that possession notice dated 17.2.2010 was also issued to the same address.

6. After receiving the possession notice, first respondent filed SA No.549/2010.

After contest, this SA was dismissed. Thus, it is proved beyond doubt that sale notice was served to the correct address. Without receiving the sale notice and made it possible to return it as ‘left, not known”, it is not open to the first respondent to claim that he changed the address, intimated change of address to the appellant bank, without filing any proof. In the said circumstances, setting aside the sale is not correct and legal.

7. Thus contending, Learned Counsel for appellant bank prayed for setting aside the order of Learned Presiding Officer, DRI-I, Bangalore dated 14.5.2018 passed in SA 49/2015 and allow the appeal.

8. Learned Counsel for R1 submitted that the sale was held subsequent to taking po