PRADEEP D. KOTHARI Vs. UTI BANK AND ORS.
LAWS(DR)-2007-2-5
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on February 28,2007

Pradeep D. Kothari Appellant
VERSUS
Uti Bank And Ors. Respondents

JUDGEMENT

K.Gnanaprakasam, J. (Chairperson) - (1.) THIS appeal is directed as against the order dated 10.4.2006 passed by DRT -I at Chennai in SASR No. 159/2005.
(2.) THE appellant and his mother borrowed amount from the 1st respondent -Bank and they have also deposited original title deeds of the property with the Bank. The appellant has been making payments regularly. But, however, the 1st respondent Bank invoked the provisions of SRFAESI Act, 2002 and issued notice dated 16.6.2003 under Section 13(2) of the said Act. The respondent -Bank also issued a notice under Section 13(4) of the Act. It is stated that on 5.9.2005, a group of people calling themselves as enforcement agents attempted to enter into the property, and the same was thwarted by filing W.P. No. 29431/2005 before the High Court of Madras, in which, the High Court granted stay in W.P.M.P. No. 32237/2005 and the said writ petition was dismissed. Writ Appeal No. 2255/2005 was filed and the writ appeal also came to be disposed of, directing the appellant herein to exhaust the remedy under SRFAESI Act. That thereafter, the appellant filed SRFAESI application before the DRT challenging the notice dated 5.9.2005 issued under Section 13(4), on the ground that the said notice is not valid and the 3rd respondent was not entitled to take possession of the property, as the Authorised Officer of the Bank alone is empowered to take possession. The 3rd respondent could be considered only as a watchman and they have no power of sale or management of the property. Rule 8(3) contemplates only actual possession being taken by the Authorised Officer and he is not empowered to delegate this essential statutory duty in favour of a third party. The possession said to have been taken by the 3rd respondent is not proper. The respondent also did not approach the Chief Metropolitan Magistrate or District Magistrate to take possession of the property as required under Section 14 of the SRFAESI Act. The constructive and symbolic possession said to have been taken by the respondent is not true and valid, and, therefore, sought for an order of injunction restraining the 3rd respondent from interfering with the appellant's possession of the property. The respondents 1 to 3 resisted the action of the appellant, by filing a common counter before the DRT, wherein they have contended that the notice issued under Section 13(2) of the SRFAESI Act is valid, and the respondent -Bank has got authority to appoint the 3rd respondent as its enforcement agent, in accordance with Section 13(4) of the Act, and the 3rd respondent is legally empowered to proceed against the appellant as per the provisions of the Act. It is further stated that under Section 17 of the SRFAESI Act, the appeal shall be filed before the DRT within 45 days from the date on which, measures have been taken by the secured creditor under Section 13(4) of the Act. In the instant case, notice under Section 13(2) was issued on 7.5.2005 and possession notice under Section 13(4) was given on 5.9.2005, and the appellant was served with possession notice, and notice for vacating the property on 5.9.2005 and a copy of the notice was also pasted on the property on the same day. The appellant filed the appeal beyond the period of 45 days after the issuance of the notice under Section 13(4) and hence, the application was not filed within time, and the same is liable to be dismissed. It is also stated that the appellant did not pay the amount due to the Bank, and the Bank, after issuing a notice dated 7.5.2005, had appointed the 3rd respondent on 4.7.2005. The appellant has not chosen to pay the amount within the prescribed period. On 8.12.2005, when the respondent -Bank along with the official from the enforcement agency visited the secured asset, the borrowers and his family members were not present instead their employees were present. The respondents requested them to give possession peacefully, as the notice to vacate the property was already served on 5.9.2005. But, they strongly resisted. The writ petition/appeal filed by the appellant came to be dismissed, and therefore, the petition filed by the appellant as against the measures taken under Section 13(4) of the Act is not maintainable.
(3.) THE learned Presiding Officer of DRT -I, Chennai had considered the rival cases of the appellant and the respondents, and ultimately came to the conclusion, that the appellant has neither specifically pleaded nor proved that the action taken by the respondent -Bank to recover the amount due to them is an illegal action and further held that the respondent -Bank is entitled to proceed against the appellant for the amount due to them, and dismissed the petition filed by the appellant. Aggrieved by the same, this appeal has been filed. I have heard the learned Advocate for the appellant and the respondents.;


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