18/05/2022

In absence of serving the order of COE(Committee of Executives on Wilful Defaulters) on the petitioners, there could never have been a declaration of the petitioners as wilful defaulters – Ravis Exports Vs. The Union of India – Kerala High Court

The Hon’ble High Court held that in the absence of serving the order of COE on the petitioners, there could never have been a declaration of the petitioners as wilful defaulters since the Master Circular as directed by the Supreme Court in in State Bank of India v. M/s. Jah Developers Pvt. Ltd. and Ors. (2019) ibclaw.in 136 SC contemplates declaration as wilful defaulter only after serving the copy of the order of COE and the consequent decision of the Review Committee. The procedure adopted by the 4th respondent while declaring the petitioners as wilful defaulters has thus failed to grant an opportunity to represent on law and on facts against the decision of the COE. Without giving or serving to the petitioners the order of the COE, petitioners cannot be expected to represent against the said decision. Communicating the content or conclusion of the COE to the borrower through an officer of the Bank is not a sufficient compliance of the requirement of “giving the order-to the borrower”.

In absence of serving the order of COE(Committee of Executives on Wilful Defaulters) on the petitioners, there could never have been a declaration of the petitioners as wilful defaulters – Ravis Exports Vs. The Union of India – Kerala High Court Read Post »

The conjunction ‘and’ employed in the proviso to Rule 9(1) of Security Interest (Enforcement) Rules 2002 indicate the mandatory nature of all three methods as serve, affix and publish of sale notice – E.K. Rajan Vs. The Authorized Officer, Canara Bank – Kerala High Court

The Hon’ble High Court held that a reading of the proviso to Rule 9(1) of the Security Interest (Enforcement) Rules 2002 makes it explicit that the authorised officer must serve, affix and publish the notice of sale of not less than 15 days to the borrower, for any subsequent sale. The word ‘serve’ relates to personal service of notice, affixture relates to the notice being affixed on the property and the publication relates to the publication of notice in the newspaper dailies. The conjunction ‘and’ employed in the proviso also indicate the mandatory nature of all three methods of notice. Further, in spite of the amendment to section 13(8) of the Act, the proviso to Rule 9(1) mandates the three methods of serve, affix and publish the notice to be carried out, with 15 days clear notice. In the instant case, there is a failure on the part of the respondent to serve notice of not less than 15 days upon the petitioner.

The conjunction ‘and’ employed in the proviso to Rule 9(1) of Security Interest (Enforcement) Rules 2002 indicate the mandatory nature of all three methods as serve, affix and publish of sale notice – E.K. Rajan Vs. The Authorized Officer, Canara Bank – Kerala High Court Read Post »

Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered – Indian Overseas Bank Vs. M/s RCM Infrastructure Ltd. and another – Supreme Court

Hon’ble Supreme Court held that in the present case, the balance amount has been accepted by the appellant Bank on 08.03.2019. The sale under the statutory scheme as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 08.03.2019. This date falls much after 03.01.2019, i.e., on which date CIRP commenced and moratorium was ordered. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered.

Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered – Indian Overseas Bank Vs. M/s RCM Infrastructure Ltd. and another – Supreme Court Read Post »

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