Mr. Justice R. D. Khare

DRT has exceeded its jurisdiction in matching the thumb impressions of the Borrower on loan documents on the basis of attested by public notary without sending it to the forensic laboratory – Union Bank of India Vs. Smt. Amna Begam and Ors. – DRAT Allahabad

In this case, the borrower stated that she has never availed any loan nor signed any loan documents or executed any mortgage deed in favour of the Bank. The thumb impression and fingers’ impression of both the hands of the borrower were directed by the DRT to be given before the public notary for attestation and thereafter to be filed before it along with affidavit of the Notary and accordingly the same were filed before the DRT supported by the affidavit of the notary and the loan document was before the Presiding Officer itself and found that the same were not matching with each other.

Hon’ble DRAT Allahabad held that:

(i) The conclusion of the Tribunal below on the basis of attested thumb impression by notary is not sustainable because the DRT below has no expertization/instrument for matching the signatures and thumb impressions of the parties.
(ii) In the present case, neither the thumb impression of the borrower has been taken before the Tribunal below nor sent to any agency, which is established for the said purpose.
(iii) As such the Tribunal below has exceeded its jurisdiction in matching the thumb impressions of the borrower, which were not taken before it.

DRT has exceeded its jurisdiction in matching the thumb impressions of the Borrower on loan documents on the basis of attested by public notary without sending it to the forensic laboratory – Union Bank of India Vs. Smt. Amna Begam and Ors. – DRAT Allahabad Read Post »

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 »

Service of 15 days’ auction sale notice is a statutory requirement and service of the same is a substantial right of the borrowers and any deviation is a substantial procedural irregularity, which cannot be said to be of minor nature – Syndicate Bank and Ors. Vs. R.N. Kamboj and Ors. – DRAT Allahabad

Hon’ble DRAT Allahabad held that Service of 15 days’ auction sale notice is a statutory requirement and service of the same is a substantial right of the borrowers. Any deviation from this provision is a substantial procedural irregularity, which cannot be said to be of minor nature. Such statutory requirement is required to be strictly followed by the Bank and cannot be ignored on the ground that no prejudice was caused to the borrowers. The Bank cannot take the advantage of the situation that the borrowers have never intended to redeem the property nor have deposited any amount.

Service of 15 days’ auction sale notice is a statutory requirement and service of the same is a substantial right of the borrowers and any deviation is a substantial procedural irregularity, which cannot be said to be of minor nature – Syndicate Bank and Ors. Vs. R.N. Kamboj and Ors. – DRAT Allahabad Read Post »

The sale of common passage along with the mortgaged property is against the provision of the SARFAESI Act, 2002 – Indian Bank (Allahabad Bank) Vs. Rolly Infrabuild Real Estate Pvt. Ltd. and Ors. – DRAT Allahabad

In this case, questions before Hon’ble DRAT Allahabad are:

(i) Whether the common passage could have been sold by the Bank along with the mortgaged property or not?
(ii) Whether the Bank was bound to disclose the encumbrances of the property in question in the sale notice despite mentioning therein the phraseology “as is where is and as is what is” or not?

The sale of common passage along with the mortgaged property is against the provision of the SARFAESI Act, 2002 – Indian Bank (Allahabad Bank) Vs. Rolly Infrabuild Real Estate Pvt. Ltd. and Ors. – DRAT Allahabad Read Post »

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