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Bank has no right to extend the time while publishing the sale notice under SARFAESI Act | If liability of borrower as well as the mortgager or the guarantor is joint, collateral and several, then they are required to be served each and every notice issued under the SARFAESI Act – State Bank of India Vs. Kush Kumar Verma and Anr. – DRAT Allahabad

Hon’ble DRAT Allahabad held that:

(i) As such the service of individual notice to the borrower by giving 30 days clear time for effecting any sale of immovable property is a statutory mandate. In the present case, no notice has been given to the guarantor, whereas the service of notice under Rule 8(6) of the Rules 2002 is mandatory. If the liability of the borrower as well as the mortgager or the guarantor is joint, collateral and several, then they are required to be served each and every notice issued under the SARFAESI Act and the Rules made thereunder.
(ii) With regard to the violation of Rule 9(3) of the Rules, 2002, the contention of the learned counsel for the appellant that there was no finding given by the Tribunal below for the same, therefore, the same needs no consideration, is incorrect, as the Tribunal below in this regard, has recorded the finding that the Bank has no right to generalize the interpretation of word “immediate” and published sale notice with the time of 48 hours for payment required to be deposited in compliance of the said Rule, which is correct, as the Bank has no right to extend the time while publishing the sale notice against the Act and Rules made thereunder.
(iii) In this regard, the Hon’ble High Courts as well as the Hon’ble Apex Court has already interpreted the word “immediate”. The word “immediate” means on the same day of the auction or by the next day but not later-on.

Bank has no right to extend the time while publishing the sale notice under SARFAESI Act | If liability of borrower as well as the mortgager or the guarantor is joint, collateral and several, then they are required to be served each and every notice issued under the SARFAESI Act – State Bank of India Vs. Kush Kumar Verma and Anr. – DRAT Allahabad Read Post »

A clause in a contract does not show that the parties intended to have their disputes resolved through Arbitration merely because a particular decision is made final and binding by that clause – Kalpataru Projects International Ltd. Vs. Municipal Corporation of Greater Mumbai and Anr. – Bombay High Court

Hon’ble Bombay High Court observes that whether the parties intended to have their disputes settled by arbitration is naturally to be gathered from the terms of the written agreement between the parties. From the judgment in Food Corporation of India v/s. National Collateral Management Services Ltd., it is very clear that a clause in a contract does not show that the parties intended to have their disputes resolved through Arbitration merely because a particular decision is made final and binding by that clause. For these reasons also, in my view, the modified Clause 96 of the GCC does not constitute an Arbitration Agreement between the parties.

A clause in a contract does not show that the parties intended to have their disputes resolved through Arbitration merely because a particular decision is made final and binding by that clause – Kalpataru Projects International Ltd. Vs. Municipal Corporation of Greater Mumbai and Anr. – Bombay High Court Read Post »

An advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor – Punj Lloyd Aviation Ltd. Vs. Chipsan Aviation Pvt. Ltd. – Supreme Court

Hon’ble Supreme Court held that NCLAT has reversed the decision while relying upon the decision of this Court in Consolidated Construction Consortium Limited vs Hitro Energy Solutions Private Limited, where it has been held that Section 5(21) has to be interpreted in a broad and purposive manner in order to include all those who provide or receive operational services from the Corporate Debtor which ultimately leads to an operational debt. The NCLT in its original order had not considered the other defences that were raised by the applicant to the application under Section 9 of the IBC. Hence, on remand, all the rights and contentions of the parties on the merits of the case are kept open to be urged before and decided by the NCLT.

An advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor – Punj Lloyd Aviation Ltd. Vs. Chipsan Aviation Pvt. Ltd. – Supreme Court Read Post »

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