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2020 (4) TMI 881 - HC - Indian LawsMaintainability of petition - Alternative remedy to entertaining of the writ petition - Recovery proceedings - It is contended by the first respondent that the first petitioner failed to repay the outstanding loan amounts and that it was constrained to initiate proceedings under the Act against the petitioners and the secured asset - time limitation. Alternative remedy no bar to entertaining of the writ petition - HELD THAT:- There is no dispute that though there is a remedy of appeal under section 18 of the Act before the Debts Recovery Appellate Tribunal challenging the impugned order of the Tribunal, since there is no Chairman appointed to the Debts Recovery Appellate Tribunal at Kolkata (which has jurisdiction over the Tribunal), and since parties have to file the said appeal at the office of the said Appellate Tribunal at Kolkata and then proceed to Allahabad where the In-Charge Debts Recovery Appellate Tribunal is functioning for any relief, we are of the opinion that the said appellate remedy is not an effective alternative remedy - this is a fit case to entertain the writ petition against the impugned order passed by the Tribunal. Whether the SA is barred by limitation? - HELD THAT:- Having withheld the said information from the petitioners, the first respondent cannot be permitted to plead the bar of limitation because it would amount to allowing the first respondent to take advantage of its own wrong, which is impermissible in law - Having suppressed that the auction was conducted on June 14, 2018 successfully and that the second respondent was the highest bidder from the petitioners, the first respondent cannot plead that the S. A. was filed beyond the period of 45 days from the sale on September 4, 2018. Whether there is a waiver by the petitioners of rights under the SARFAESI Act, 2002? - HELD THAT:- The Tribunal had also held that there was a waiver by the petitioners of their right to contend about illegality if any committed in the conduct of e- auction on June 14, 2018 by the first respondent-bank - In the instant case also though the first respondent-bank did not disclose to the petitioners about the sale in the e-auction held on June 14, 2018 to the second respondent, as soon as the Advocate-Commissioner's notice dated August 10, 2018 was received by the petitioners, they filed the S. A. on September 4, 2018. There is nothing in the conduct of the petitioners to suggest that they had waived any rights under the statute or the rules made thereunder. Therefore, this plea of the first respondent-bank about waiver by the petitioners of their rights under law, is rejected. Non-compliance with rule 8(6) - HELD THAT:- No material has been produced by the first respondent-bank that it had complied with the service affixture and publication of the possession notice dated November 15, 2017 and notice dated February 21, 2018 under rule 8(6), and service and affixture of notice dated May 5, 2018. Strangely the Tribunal gave no finding on these aspects. This is clearly erroneous. The writ petition allowed with costs of ₹ 25,000 to be paid to the first petitioner by the respondents.
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