1. No category

SA 105/13
10.30 A.M.
20.3.2015
IA 506/15: This petition has been filed by the petitioner / applicant
to stay all such further proceedings in pursuant to the Possession Notice
dated 17.4.2013 issued under S.13(4) of the SARFAESI Act.
It is an admitted fact that this Tribunal in IA 475/14 has granted
conditional stay of all further proceedings in pursuant to the Possession
Notice dated 17.4.2013, that the petitioner should pay Rs.50 lakhs on or
before 9.5.2014 to prove their bona fides and on failure to pay the amount
the Interim Stay granted should be vacated automatically. But, the
condition was not complied with. According to the Ld. counsel for the
petitioner a post dated cheque dated 24.5.2014 was issued for Rs.50 lakhs
through the counsel for the petitioner on 7.5.2014, which was not accepted
by the 2nd Respondent and it was due to such rejection, the stay got vacated
and thereafter the 2nd respondent approached the competent authority the
District Collector Coimbatore under S.14 of the SARFAESI Act to take
physical possession and when the process was on, the Thasildar North
Coimbatore has forced the petitioner and other two lady members to sign in
an undertaking dated 10.3.2015. The Ld. counsel for the Petitioner has
tendered a DD for Rs.50 lakhs with a view to comply with the order dated
9.4.2014 in IA 475/14. The Xerox copy of the undertaking alleged to have
been obtained by the Thasildar North is also produced along with the
Petition. The Ld. counsel seeks to stay the proceedings under S.14 of the
SARFAESI Act which are on.
The Ld. counsel for the R/Bank strongly objected to the prayer of the
petitioner on the ground that the prayer of the petitioner is against the tone
and tenor of the observations of the Hon’ble Supreme Court in Noble Kumar
case that S.17 could be invoked only after losing possession of the property
and not before that. The Ld. counsel for the R/Bank seeks to reject the
petition on the first point that it is not maintainable. The Hon’ble Supreme
Court in the above case has clearly observed that the remedy available to
the borrower under S.17(1) of the SARFAESI Act is only after dispossession
of the property and it shall not confer any right on the borrower to approach
the Tribunal for remedy before dispossession.
The earlier order passed by this Tribunal dated 9.4.2014 was not
complied with in letter and spirit. According to the Ld. counsel for the
R/Bank a post dated cheque was issued dated 24.5.2014, which could be
presented for encashment only after the time frame fixed by the Tribunal at
a time when the interim stay granted got vacated automatically and
therefore, the 2nd Respondent was constrained to return the post dated
cheque to the petitioner, since the amount tendered was not in consonance
with the conditional order passed by this Tribunal dated 9.4.2014. A careful
scrutiny of the minutes of the meeting with the Thasildar on 10.3.2015,
would show that it was at the instance of the petitioner and guarantor, the
Authorised officer of the 2nd Respondent bank requested the Competent
Authority to settle the account for Rs.12 crores, as against the total
outstanding amount of Rs.12,84,31,968/- as on 9.3.2015. It was agreed by
the guarantor that Rs.5 crores would be paid on or before 19.3.2015 and
another Rs.7 crores on or before 19.4.2015. It was based upon such
agreement, the proceedings under S.14 of the SARFAESI Act was deferred
by the Authority concerned till 20.3.2015. The materials suggest that the
petitioner and the guarantor were instrumental in inviting such an
agreement. Therefore, in the absence of any other allied materials to suggest
that coercion was exercised by the Authorised Officer, this Tribunal is of the
view that such exercise was not a colourable exercise.
Therefore, under the above circumstances, this Tribunal has no other
option but to infer that the petitioner is not at all bona fide in settling the
account, though sufficient indulgence has been shown to the petitioner to
settle the account. Hence, the prayer of the petitioner is devoid of merits and
it has to be dismissed. Accordingly, this petition is dismissed. No costs.
For filing RS by 30.4.2015. Call on 30.4.2015.
PO
SA 200/14
20.3.2015
Orders pronounced.
IA 471/15: this petition has been filed to stay all further proceedings
in p[pursuance of the sale notice dated 14.2.2015 in which the sale has
been fixed on 23.3.2015 at 4.00 P.M.
The whole backdrop of the case have been already dealt with in the
previous stay petitions filed by the petitioner in IA 1220/14 dated 1.10.2014
and IA 1441/14 dated 11.12.2014. The present grievance of the petitioners
which is arising out of the present sale notice impugned herein. It is an
admitted fact that the previous conditional orders passed by this Tribunal
referred above have not been fully complied with by the petitioners, instead
a part payment have been made. Apart from this, disputes arose between
the parties in respect of the sale of the cotton bales which still persists and
it went up to the Hon’ble High court and based on the orders passed by the
Hon’ble High Court, FIR has been filed against the authorities of the R/Bank
and criminal complaints were lodged against the petitioners by the
authorized officers of the R/Bank also and the respective proceedings are
pending for further investigations. In the meanwhile, an OTS proposal was
also mooted out by the petitioners and the same was also rejected by the
R/Bank on 12.2.2015. In the meanwhile, according to the petitioners the
R/Bank official with their men, agents, revenue officials and police officers
came to Item No.III and IV of the schedule mentioned house property
without any intimation and taken physical possession of the property
illegally, without allowing the petitioners to take out the materials which are
being stored in the house and it was locked and sealed on 8.12.2014.
Further it is alleged that the whole proceedings along with photographs were
published in the newspapers with a view to malign the reputation of the
petitioners and to wreak vengeance against the criminal complaint filed by
the petitioners against the respondent authorities. The Ld. counsel for the
petitioners submitted that the respondent authorities knowing fully well that
Items No.III and IV properties consists of land and a house building in it at
the time of sanctioning the loan had requested the 3rd petitioner and his wife
Mrs. S. Gandhimathi who are the guarantors for the loan obtained by the 1st
petitioner, obtained only the land for mortgage and accordingly the 3rd
petitioner and his wife had mortgaged only the land in r/o. Item No.III and
IV by way of registered memorandum of deposited of title deeds dated
21.12.2011 in favour of the Respondent Bank.
Further the Ld. counsel contended that the District Collector has
ordered to take physical possession of the land only in r/o Item No.III and
IV, but he delegated authority has taken physical possession of the house
building on 13.2.2015 and therefore, the process of locking and sealing the
property is against the order of the District Collector under S.14 of the
SARFAESI Act and when things are such the R/Bank officials have issued
the Sale Auction Notice impugned herein and the proposed sale is fixed on
23.3.2014 at 4.00 P.M. Apart from this, the grievance of the petitioners is
that the value of the property is undervalued and the procedures adopted by
the Respondent authorities are in violation of 8(6)(d) of the Security Interest
(Enforcement) rules, 2002.
The Ld. counsel for the petitioner further submitted that the Items I
and II of the 2nd schedule mentioned properties, are running spinning mills
and if the physical possession of the said properties are taken it would
cripple the livelihood of the labourers and would definitely lead to untold
miseries to the petitioners.
The Ld. counsel in support of his contentions has drawn the attention
of Tribunal to page no.67, 87, 148, 163, 164 of the type set. These are all
the documents of sanction proceedings, copy of the S.13(2) notice, reply to
S.13(2) notice, Possession Notice and auction notice etc.
The R/Bank in its counter, stated that the demand notice under
S.13(2) dated 18.01.2014, for which the Ld. counsel for the petitioners sent
reply 27.3.2014, for which the R/Bank has sent its rejoinder on 10.4.2014.
The Ld. Counsel for the R/Bank submitted that the petitioners never
disputed the nature and description of the properties mentioned in the
schedule in the above proceedings, and now taking advantage of non
mentioning of building in the memorandum of deposit of title deeds has
come forward with the present petition that the building situated in Item
No.III and IV have been seized by the Respondent officials illegally. The Ld.
counsel for the R/Bank has drawn the attention of the Tribunal to the
agreement of mortgage dated 30.11.2011, wherein the petitioners have
agreed to execute the residential building in SF No.175 and also the
memorandum of deposit of title deeds executed by the petitioners,
Documents. No.1,2 & 3, wherein the house property also finds a place. Ld.
counsel for the respondent bank further submitted that since the building
has not been mentioned in the earlier memorandum of the title deeds, the
petitioners have executed the disputed document No.4 Affidavit in favour of
the Respondent Bank and having taken advantage of the non mentioning of
the building in the earlier document executed by the petitioners in year
2011, now contended that the R/Bank has seized the building illegally. The
Ld. counsel has also drawn the attention of the Tribunal to document No.10,
the “Certificate of taking possession”, issued by the competent authority,
wherein the possession of the building has also been mentioned.
According to the Ld. counsel for the petitioner, Doc. No.4 Affidavit is a
fabricated document and the signatures of the petitioners are incorporated
by forging the signatures. The question whether the disputed document has
been created and the signatures were forged can only be decided at the time
of detailed hearing of both the parties and not now.
The circumstances under which the disputed document came into
existence and the non mentioning of the building in the earlier
memorandum of deposit of title deeds would be decided at the time of
hearing the original application. Therefore, taking into consideration of the
materials available on record, prima facie it appears that the disputed area
where the alleged accidental lapse occurred while processing the loan
documents has to be further probed into. Therefore, till such intergnum
period, this Tribunal is of the view that if a limited injunction with certain
conditions is ordered, it would meet the interest of justice and natural
justice. Accordingly, Ad Interim Injunction granted not to proceed against
Schedule No.1 (Items No.I and II) and Schedule No.II (Items No.I and II) of
the petition mentioned properties till 21.5.2015. In so far as, Schedule II
(Items No.III and IV) Ad Interim Injunction granted not to confirm the sale
till 21.5.2015, subject to payment of Rs.85,85,800/- to be paid directly
before the R/Bank on or before 20.4.2015 as 1st installment, and another
sum of Rs.85,85,800/- to be paid directly before the R/Bank as 2nd
installment on or before 20.5.2015. However, in the event of failure to pay
even a single installment as stipulated above, the Ad Interim Injunction
granted today not to confirm the sale in r/o. Schedule II (Items No.III and IV)
shall stand vacated automatically and thereafter, the R/Bank is at liberty to
proceed against the secured assets as per law. It is also made clear that the
R/Bank is at liberty to proceed with the proposed sale subject to the above
conditions in r/o. Schedule II (Items III and IV).
For detailed enquiry, proof of payment by 21.5.2015.
Call on
21.5.2015.
PO
SA 62/15
(after lunch)
20.3.2015
I.A. No.508/15: This petition has been filed by the petitioner to stay
all further proceedings in pursuance of the Possession Notice dated
16.2.2015
The petitioner has availed an agricultural loan from the R/B for a sum
of Rs.55 lakhs in the year 2013 for cultivating floriculture cultivation for
import and export for which the petitioner has mortgaged the property in
question. It is due to the circumstances stated in the affidavit the loan in
question became NPA. The request for rescheduling the loan was negatived
by the R/Bank. Thereafter the R/Bank initiated SARFAESI proceedings.
According to the petitioner, the proceedings are not in accordance with the
procedures contemplated under the SARFAESI Act and the interest charged
is not in accordance with the guidelines issued by the RBI and the Hon’ble
Apex Court. It is on these grounds the petitioner has challenged the
Possession Notice issued by the R/Bank.
The total outstanding amount is Rs.80,58,414/-. Having taken into
consideration of the affidavit, averments and the submissions made by the
Ld. Counsel, this Tribunal is of the view that if a limited injunction is
granted it would meet the interest of justice, without going into the merits of
the matter in full. Accordingly, Ad Interim Injunction is granted against the
R/Bank till 21.5.2015, subject to a payment of Rs.10,07,500/- directly
before the R/Bank on or before 20.4.2015 as 1st installment and another
sum of Rs.10,07,500/- before the R/Bank directly on or before 20.5.2015 as
2nd installment. However, in the event of failure to pay even a single
installment as stipulated above, the Ad Interim Injunction granted today
shall stand vacated automatically and thereafter, the R/Bank will be at
liberty to proceed against the secured assets as per law.
Further fresh notice to the R/Bank by RP(AD) by 21.5.2015. PS & PP
by then. Call on 21.5.2015.
PO