Yashwant Varma, J. - (1.) Heard Sri Manu Khare, learned counsel for the petitioners and Sri D.K. Pathak, learned Senior Advocate assisted by Sri Rahul Tyagi and Sri Shashank Pathak, appearing for the respondent Bank.
(2.) This petition impugns an order dated 30 January 2019 passed by the Debt Recovery Tribunal, Allahabad [DRAT] on an appeal preferred by the respondent Bank under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereinafter referred to as the "2002 Act"]. The appeal itself was directed against an order dated 19 May 2018 passed by the DRT, Lucknow [DRT] allowing a Securitisation Application filed by the petitioners here. The DRT by its order of 19 May 2018 while allowing the Securitisation Application set aside the possession notices dated 12, 19 and 26 July 2017 issued under Rule 8 of the Security Interest (Enforcement) Rules, 2002 [hereinafter referred to as the "2002 Rules"] as also the demand notice of 19 April 2017 referable to Section 13(2) of the 2002 Act.
(3.) The facts on which there is no dispute are as follows. The petitioner Nos. 1, 4 and 5 are the original borrowers. The petitioner Nos. 2 and 3 are the guarantors. The respondent Bank is stated to have granted various credit facilities to the petitioners from time to time. In order to secure the credit facilities so sanctioned and disbursed, equitable mortgages were also created in respect of properties situate at Meerut, Karnal, NOIDA and Gandhidham (Gujarat). The loan account of the petitioners was classified as a non performing asset on 31 March 2017. The respondent Bank on 19 April 2017 issued a notice under Section 13(2) of the 2002 Act calling upon the petitioners to repay a sum of Rs. 92,41,11,057.49 along with interest thereon at the rate of 14.55% per annum. Since the terms of the notice under Section 13(2) were not complied with, the Bank proceeded to issue possession notices on 12, 19 an 26 July 2017 evidencing the taking over of possession in terms of Section 13(4) of the 2002 Act. After taking symbolic possession, the respondent Bank issued a sale notice dated 11 August 2017 but the auction sale could not materialise for want of bidders. Aggrieved by the possession notices issued as well as the notice of sale, the petitioners filed a Securitisation Application before the DRT on 1 September 2017. It was this Securitisation Application which was allowed by the DRT on 19 May 2018 and formed subject matter of challenge laid by the Bank before the DRAT. The DRAT in terms of its impugned order of 30 January 2019 has proceeded to record that despite the notice under Section 13(2) of the Act having been duly served, no objections were preferred as a consequence of which the respondent Bank proceeded to issue the possession notices. It further noted that although requisite details of service of the notice under Section 13(2) of the Act had been duly brought on record by the Bank before the DRT, no objection was raised by the petitioners here to the same. The DRAT has further found that the three possession notices were duly affixed on the premises of the secured assets and that the requirements of Rule 8 of the 2002 Rules complied with. Referring to the decision of the Supreme Court in Standard Chartered Bank Vs. Noble Kumar and others, 2013 9 SCC 620, the DRAT held that after issuance of the demand notice under Section 13(2) of the 2002 Act and on a failure of the debtors to liquidate the dues as claimed, it is open to the secured creditor to take symbolic or physical possession without issuing any prior or further notice. It essentially held that there is no legal requirement of issuance of a notice before proceeding to take possession. While dealing with the issue of compliance with Rule 8, it has significantly recorded that the petitioners did not deny the receipt, publication and affixation of the possession notices. Having recorded the conclusions as aforesaid, it proceeded to allow the appeal of the respondent Bank and set aside the order of the DRT dated 19 May 2018.;