Aman Jaiswal Vs. State Bank of India – DRAT Allahabad
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Aman Jaiswal Vs. State Bank of India – DRAT Allahabad Read Post »
Surendra Pandey Vs. The Authorized Officer, the Chief Manager, Bank of Baroda and Anr. – DRAT Allahabad
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Beauty Kumari Vs. GIC Housing Finance Ltd. and Ors. – DRAT Delhi
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Beauty Kumari Vs. GIC Housing Finance Ltd. and Ors. – DRAT Delhi Read Post »
Mrs. Veena Jain Vs. Citi Union Bank Ltd. and Ors. – DRAT Delhi
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Mrs. Veena Jain Vs. Citi Union Bank Ltd. and Ors. – DRAT Delhi Read Post »
Bank of Maharashtra Vs. Narayana Farm Produce Pvt. Ltd. and Ors. – DRAT Mumbai
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Bank of Maharashtra Vs. Narayana Farm Produce Pvt. Ltd. and Ors. – DRAT Mumbai Read Post »
Whether in the case of subsequent sale fresh 30 days notice under Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 is required or not? – VST Constructions and Anr. Vs. Canara Bank and Ors. – DRAT Kolkata
Hon’ble DRAT Kolkata even if the amendment of Section 13 (8) of the SARFAESI Act, 2002, Secured Creditor is bound to afford to the Borrower a clear 30 days notice period under Rule 8 (6) to enable him to exercise his right of redemption. In consequence, a notice under Rule 9 (1) cannot be published prior to expiry of 30 days period. In the new scenario post amendment of Section 13 (8) of the Act, such right of redemption would stand terminated immediately upon publication of the Sale Notice under Rule 9 (1) of the Rules. Proviso attached to Rule 9 (1) simply provides that if the sale of immoveable property by one of the methods specified by Sub-rule (5) of Rule 8 fails, sale is required to be conducted again. The Authorised Officer shall serve, affix and publish notice of sale on not less than 15 days to the Borrower for any subsequent sale. It means that in case of subsequent sale, the period of 30 days, as required under Rule 9 (1) is curtailed to 15 days. This proviso of Rule 9 (1) in no manner curtailed the period of notice provided under Rule 8 (6). Had it been the intention of the Legislature, that period provided under Rule 8 (6) would also have to be amended by the legislature. But intentionally Rule 8 (6) is not amended but the period in subsequent sale is curtailed to 15 days. It means that even in the case of subsequent sale, provisions of Rule 8 (6) have to be followed by the Authorised Officer. Accordingly, it is incumbent upon the Authorised Officer, even in case of subsequent sale, to comply the provisions of Rule 8 (6) as well as proviso to Rule 9 (1). Law nowhere curtails the right to redemption available to the Borrower under Section 13 (8) of the Act in case of a subsequent sale.
Case of the liability of Banks which the imposters used to open an account to syphon off the amounts from the PPF accounts maintained with the SBI – State Bank of India Vs. Pooja Alias Vidhya P. Dhanade and Ors. – DRAT Mumbai
In this case, the impersonators had opened the accounts with the Canara Bank and the Mogaveera Co-operative Bank under the assumed name of the PPF account holders and had submitted the banker’s cheques for collection in those banks. The SBI discounted those banker’s cheques and the amounts came into the fictitious accounts of the PPF account holders fraudulently opened by the imposters with the Canara Bank and Mogaveera Co-operative Bank. The impostors withdrew the amounts and allegedly issued cheques and demand drafts in favour of the other defendants who had in collusion with them fraudulently appropriated the amounts.
No separate publication is required while taking physical possession of the property if compliance is made after taking symbolic possession | A waiver of the mandatory provision under Rule 8(6) of Security Interest (Enforcement) Rules, 2002 (Non-service of a notice on the borrower about the auction sale) is possible – Central Bank of India Vs. Upendra Pravinbhai Patel and Anr. – DRAT Mumbai
Hon’ble DRAT Mumbai held that:
(i) No separate publication is required while taking physical possession of the property if compliance is made after taking symbolic possession. Sub-rule (3) to Rule 8 relating to taking possession of the immovable property actually by the authorised officer does not contemplate a further publication in newspapers.
(ii) Applying these principles laid down in ARCE Polymer Pvt. Ltd. v. Alphine Pharmaceuticals and Ors. (2021) ibclaw.in 172 SC to the case in hand, it has to be held that the borrower is estopped from raising any challenge to the Sarfaesi measures including the sale because of his voluntary act of offering to settle the dues in a time-bound manner and then failing to comply with that.
Whether in the case of subsequent sale fresh 30 days notice under Rule 8 (6) of Security Interest (Enforcement) Rules, 2002 is required or not? – Smt. Alluri Vijaya Lakshmi Vs. Union Bank of India (erstwhile Andhra Bank) – DRAT Kolkata
Hon’ble DRAT Kolkata held that:
(i) Even if the amendment of Section 13(8) of the SARFAESI Act, Secured Creditor is bound to afford to the Borrower a clear 30 days notice period under Rule 8 (6) to enable him to exercise his right of redemption. In consequence, a notice under Rule 9 (1) cannot be published prior to expiry of 30 days period.
(ii) Proviso attached to Rule 9 (1) simply provides that if the sale of immoveable property by one of the methods specified by Sub-rule (5) of Rule 8 fails, sale is required to be conducted again. The Authorised Officer shall serve, affix and publish notice of sale on not less than 15 days to the Borrower for any subsequent sale. It means that in case of subsequent sale, the period of 30 days, as required under Rule 9 (1) is curtailed to 15 days. This proviso of Rule 9 (1) in no manner curtailed the period of notice provided under Rule 8 (6).
(iii) It means that even in the case of subsequent sale, provisions of Rule 8 (6) have to be followed by the Authorised Officer. Accordingly, it is incumbent upon the Authorised Officer, even in case of subsequent sale, to comply the provisions of Rule 8 (6) as well as proviso to Rule 9 (1). Law nowhere curtails the right to redemption available to the Borrower under Section 13 (8) of the Act in case of a subsequent sale.
The forfeiture of amount deposited under Rules 9(4) and 9(5) of Security Interest (Enforcement) Rules, 2002 follows irrespective of whether a subsequent sale takes place at the higher price or not, and this is not subject to any recovery already made to the extent of the debt owed – Bank of Baroda Vs. Mohammedarif Mohammedumar Qureshi and Anr. – DRAT Mumbai
Hon’ble DRAT Mumbai held that the forfeiture of the amount deposited under Rules 9(4) and 9(5) of the Security Interest (Enforcement) Rules, 2002 is a legal consequence that has been statutorily provided in the event of default in payment of the balance amount. The consequence envisaged under Rule 9(5) follows irrespective of whether a subsequent sale takes place at the higher price or not, and this forfeiture is not subject to any recovery already made to the extent of the debt owed. In such cases, no extent of equity can either substitute or dilute the statutory consequence of forfeiture of 25% deposited under Rule 9(5) of the Rules. The reasons supplied for the delay in the deposit cannot be entertained as the time fixed for payment is a statutory mandate which needs strict compliance.
