MAHESH CHANDRA TRIPATHI, J. - (1.) HEARD Sri Shashi Nandan, learned Senior Advocate assisted by Sri Udayan Nandan, learned counsel for the petitioner, Sri Ashok Bhatnagar, learned counsel for respondent No. 2 and Sri Raj Kumar Tiwari, learned counsel for respondent No. 3.
(2.) BY means of this writ petition, the petitioner has prayed for quashing the order dated 10.01.2012 passed by the Debts Recovery Appellate Tribunal, Allahabad (herein after referred as "DRAT").
(3.) BRIEF facts giving rise to this writ petition are that Shri Ashutosh Kumar Srivastava -the respondent No.4 is engaged in the business of Javik Fertilizer under the name and style of M/s Om Shanti Enterprises and had obtained credit facility of Rs. 4.50 lacs from the Punjab National Bank, Kydganj Branch, Allahabad i.e. respondent No. 2 for promoting his business. Shri Ladli Prasad Srivastava -the respondent No. 3 had furnished the guarantee for repayment of bank dues and had mortgaged his residential house with the bank. It has been alleged that the respondent No. 3 did not receive any notice or information from the bank regarding the classification of account as NPA and also averred that he did not have any knowledge about the proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred as "SARFEASI Act"). The respondent No. 3 claimed that he did not have any knowledge of proceeding initiated by the bank prior to 13.11.2010, when auction purchaser (petitioner) had visited the house for taking possession of the same. After receiving information from the bank, the respondent No. 3 approached to the Debts Recovery Tribunal, Allahabad (hereinafter referred as "DRT") and filed an application under Section 17 (1) of the SARFEASI Act. The case was registered as S.A. No. 184 of 2010. The respondent No. 3 had set out his case that notice under Section 13(2) or 13(4) of the Act had never been served upon him and possession notice had also not been published in two newspapers. He also did not have any knowledge. The sale notice allegedly published on 13.01.2010. The residential house of respondent No. 3 was put for auction and the petitioner being as successful bidder had purchased the property for consideration of Rs. 6.55 lacs on 13.02.2010. The sale was confirmed on 24.04.2010. The respondent No. 3 had contested the case before the DRT and moved an application under Section 17(1) alongwith Section 13(8) of SARFEASI Act stating that he continued in possession of the residential house and was ready to deposit the entire dues of the bank and requested to provide the benefit of redemption as provided under Section 13(8) of the SARFEASI Act. In this background, the respondent No. 3 submitted to the DRT through an application and prayed that the sale proceedings initiated by the bank in absence of service of notice under Section 13(2) and 13 (4) of the SARFEASI Act be declared illegal and be quashed and may also be given liberty to redeem the property after full payment of dues. The detailed objection had been filed by the bank with categorical averment that the notice under Section 13(2) of the SARFEASI Act had been issued on 22.05.2009 which was sent through registered post at the correct address of the applicant and the same had been delivered. It has also been stated that after receipt of the notice, the respondent No. 3 and his son (borrower) vide letter dated 28.07.2009 had volunteered before the bank to clear the dues. An objection had also been filed by the bank that the said proceeding under Section 17(1) of the SARFEASI Act was time barred. The possession notice was published in two newspapers as per law on 15.09.2009. It is also apparent from the record that the respondent No. 3 after issuance of possession notice filed Writ Petition No. 8143 of 2010 before the Division Bench of this Court challenging the same. The said writ petition was disposed of vide order dated 17.02.2010. The operative portion of the order dated 17.02.2010 is reproduced herein below: - "Prayer in this petition is for quashing the advertisement/notice dated 3.1.2010 by which proceeding under Section 13(4) of the Security Interest(Enforcement) Act, 2002, has been given. Submission of learned counsel for the petitioner is that his son was given loan and petitioner is the guaranteer and in the event of default process is there. Submission is that petitioner was never intimated about the defaulted amount required to be paid otherwise petitioner could have paid the amount. It is then submitted that the property i.e. House NO. 7/165 Mini LIG, Jhusi as mentioned in para 5 of the writ petition is the only place of residence for the petitioner and his family members and if that is subjected to auction and creation of third party right then there will be irreparable injury to the petitioner. Submission is that petitioner is able to pay the amount if breathing time is given. On these facts learned counsel for the bank submits that it was never intention of the bank to cause irreparable injury to the petitioner and bank is interested only in respect to the amount and if there is any good faith/bonafide on the part of the petitioner then reasonable consideration this court can always extend. Accordingly without going into the merits of the matter this petition is disposed of by giving following directions - 1) Petitioner is directed to deposit entire amount in terms of the notice (Annexure -1 to the writ petition) which is required to be paid directly with the respondent bank within a period of three weeks from today. 2) For the aforesaid period no coercive measure will be taken by the respondent against the petitioner and his property. 3) In the event of default in payment of the amount as directed, the protection so given shall seize to operate and it will be open for the respondent to immediately proceed to recover the entire amount to which petitioner undertakes not to object. With the aforesaid directions. this petition stands disposed of. " ;