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2016 (10) TMI 204 - ANDHRA PRADESH HIGH COURT

2016 (10) TMI 204 - ANDHRA PRADESH HIGH COURT - TM - E-auction sale validity - E-auction sale was held contrary to the mandate of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) - Held that:- When there is no 30 days gap from date of publication on 13.02.2016 to date of sale held on 14.03.2016, the sale held is liable to be set aside by declaring as null and void. - Accordingly and in the re .....

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ch such deposit, from the secured creditor bank, so as to recover from the debtor as part of the amount of the secured loan due. - c) Needless to say that remedy is left open as laid down in Mathew Varghese supra for the secured creditor bank to proceed afresh for sale of the property by public auction or the like as per the due procedure under law, if the writ petitioner/Debtor fails to liquidate the debt as per the right of redeeming the debt available till transfer of the property by publ .....

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Rao) The writ petitioner is seeking a Writ of Mandamus to declare the impugned E-auction sale dated 14.03.2016, covered by E-auction sale notice dated 10.02.2016, that was published in Eenadu Telugu Daily News Paper dated 13.02.2016, claiming the same even in pursuance of unserved demand and possession notices respectively dated 20.05.2015 and 05.10.2015 as null and vold; on the grounds that the said E-auction sale was held contrary to the mandate of the provisions of the Securitisation and Reco .....

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#8377; 16,88,000/- on 01.10.2008, for purchase of built up area of 1250 Sq.ft., with common area along with undivisible 1/15th share equal to 26 Sq.yards out of 390 Sq.yards site all consisting of Flat No.401, IV Floor, V.C.Homes, Survey No.151/A situated in Sankhal Bagh, N.R.Peta, Kurnool; paid installments regularly upto the year, 2011 and later committed default. For the defaults committed, it is her version that her husband left his job and was doing business all and sundry and wherein he in .....

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ance in O.S.No.79 of 2011, on the file of Principal District Judge, Kurnool. Her further version is that without any service of alleged demand notice dated 30.01.2011 under Section 13(2) and of possession notice dated 05.01.2012 under Section 13(4) of the SARFAESI Act, to proceed further including to take possession and without following the due procedure laid down under the Act; and even without service of alleged another demand notice dated 20.05.2015, issued the purported notice dated 05.01.2 .....

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d by the provisions supra including by stating about possession and total description of the property to be sold, date of sale with reserve price etc. contents, which are material to redeem the property if any under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 (for short Rules, 2002 ) and without even further publication under Rule 9(1) and without even 30 days time gap from date of publication to the date of sale, viz., from 13.02.2016 to 14.03.2016, which is a statutory mandate .....

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e sale is liable to be set aside. 2-d. It is stated that for no Presiding Officer available at the Debt Recovery Tribunal, Hyderabad, to have the alternative remedy, she filed the writ petition seeking to set aside the auction sale as the effective remedy to protect her constitutional right to property and also sought for interim stay of all further proceedings pursuant to the E-auction sale dated 14.03.2016 pending disposal of the writ petition. 2-e. Among above contentions, it is the main cont .....

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y Tribunal under Section 17 of the Act, to impugn the auction sale, the writ petition is not maintainable to prevent the Bank from recovering the dues and thereby the writ petition is liable to be dismissed, vide, Union Bank of India v. Satyawati Tondon 2010(8) SCC 110, Kanaiyalal Lalchand Sachdev v. State of Maharashtra 2011(2) SCC 782, K.Balakrishna v. Debt Recovery Tribunal, Hyderabad 2006(6) ALT 695 and V.K.Shekhar v. Indian Bank 2006(6) ALD 778 and submitted from the expression in Director .....

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roceedings as per the Act and issued demand notice dated 20.05.2015 under Section 13(2) of the Act, demanding the petitioner and her husband to repay the outstanding dues of ₹ 21,45,259/- that is also published in Andhra Jyothi and Hans India on 30.06.2015 and from the failure to pay, Bank issued possession notice dated 05.10.2015 under Section 13(4) of the Act and the possession notice was also published in the said newspapers on 10.10.2015 and it is after obtaining valuation of the prope .....

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2,000/- and she has paid 25% of the bid amount on that day and balance 75% on 29.03.2016 including vide cheque No.163386 for ₹ 3,50,000/-, that the writ petitioner having borrowed, committed default in payment of the loan and thereby is not entitled to obstruct the recovery proceedings initiated by the Bank from what the Division Bench of this Court laid down in Bhanu Constructions Co. Ltd Vs. Recovery Officer, DRT, Hyderabad 2010(3)ALD 57(DB) under RDDBFI Act,1993 is defaulters cannot be .....

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e suit O.S.No.79 of 2011 decreed on 21.04.2014, the decree no way restrains the secured creditor Bank from proceedings under the Act, 2002 and thereby there are no merits in the writ petition and same is liable to be dismissed. 3-d. The contest of auction purchaser is besides bonafide purchaser for value in public auction, in the same lines of the Bank and thereby it no way requires repetition. 4. Heard the learned counsel for the writ petitioner, the learned counsel for the 1st respondent credi .....

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he date of publication to the date of sale and the 30 days clear notice is mandatorily required to conduct the sale and on that ground itself the writ petition is maintainable, though there is an alternative remedy, more particularly in the writ petition, it is stated that there is no regular officer to the Debt Recovery Tribunal at Hyderabad and there are no sittings and the writ petition is the only effective remedy even therefrom. 5-c. Whereas, it is the contention of 1st respondent Bank and .....

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ternative remedy available. The expressions of the Apex Court referred to in the counter of the 1st respondent- Bank of Satyawati Tondon (supra), Kanaiyalal Lalchand Sachdev(supra) though speak that an effective and efficacious alternative remedy provided is generally a bar to invoke writ jurisdiction which is a self restraint in exercise of the plenary jurisdiction. In fact the subsequent expression of the Apex Court in General Manager, Sri Siddeshwara Cooperative Bank Limited and Anr. v. Ikbal .....

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isdiction under Article 226 of the Constitution of India. The larger Bench of the Apex Court in Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 , observed at page- 607, para-77: 77.… So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under .....

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se cases where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or as resorted to invoke the provisions which are repelled or when an order has been passed in total violation of the principles of natural justice. It was observed further by referring to the expression in Whirlpool Corporation v Registrar Of Trade Marks, Mumbai 1998(8) SCC 1 at para-15 that under Article 226 of th .....

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of the fundamental rights or where there has been violation of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or in variance of provisions of the Act concerned. It was also for that conclusion referred to an earlier expression in Rashid Ahmad v. Municipal Board of Kairana AIR 1950 SC 163 (D) , which says adequate alternative remedy in existence is only one of the factors to be considered by the writ Court before exercising its plenary jurisdictio .....

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the same as the main question in impugning the auction sale for the date of sale notice publication and date of sale not even in dispute, the writ petition is held maintainable from reading together of the expressions on the principles laid down therein supra. 8. Once the writ petition is maintainable as concluded supra, coming to merits, whether there is actual 30 days time from date of publication to date of auction sale viz., from 13.02.2016 to 14.03.2016 is the main question required to ans .....

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ion arrived and certified by any approved valuer and when obtained to fix reserve price, what is the reserve price fixed and what is the date of sale with reserve price etc. contents, which are material. For that, Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002(for short, the Rules 2002 ) and Section 13 of the SARFAESI Act, read as under: Rule 8: Sale of immovable secured assets- (1) Where the secured asset is an immovable property, the authorised officer shall take or cause to .....

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actually taken by the authorised officer, such property shall be kept in his own custody or in the custody of any person authorised or appointed by him, who shall take as much care of the property in his custody as a owner of ordinary prudence would, under the similar circumstances, take of such property. (4) The authorised officer shall take steps for preservation and protection of secured assets and insure them, if necessary, till they are sold or otherwise disposed of. (5) Before effecting s .....

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from the public; (c) by holding public auction; or (d) by private treaty. (6) The authorised officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5): Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the localit .....

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(f) any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. (7) Every notice of sale shall be affixed on a conspicuous part of the immovable property and may, if the authorised officer deems if fit, put on the web-site of the secured creditor on the Internet. (8) Sale by any method other than public auction or public tender, shall be on such terms as may be settled between the parties in writing. (9). Time .....

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d the highest sale price in his bid or tender or quotation or offer to the authorised officer and shall be subject to confirmation by the secured creditor: Provided that no sale under this rule shall be confirmed, if the amount offered by sale price is less than the reserve price, specified under sub-rule (5) of rule 9: Provided further that if the authorised officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect th .....

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s may be agreed upon in writing between the parties. (5) In default of payment within the period mentioned in subrule (4), the deposit shall be forfeited and the property shall be resold and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may be subsequently sold. (6) On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising the power of sale shall issue a certifi .....

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m. (8) On such deposit of money for discharge of the encumbrances, the authorised officer may issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly. (9) The authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above. (10) The certificate of sale issued under sub-rule (6) shal .....

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or in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of noti .....

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shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non‑acceptance of the representation or objection to the borrower: Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upo .....

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realising the secured asset; 2[(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: 2[(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset\:" Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the busin .....

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, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower. (6) Any transfer of secured asset after taking possession thereof or take over o .....

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incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests. (8) If the dues of the secured creditor .....

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ed to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors: Provided that in the case of a company in liquidation, the amount realised from the sale of secured assets shall be distributed in accordance with the provisions of section 529A .....

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ns of section 529A of that Act: Provided also that the liquidator referred to in the second proviso shall intimate the secured creditors the workmen s dues in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956) and in case such workmen s dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen s dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets .....

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he purposes of this sub-section,- (a) record date means the date agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding on such date; (b) amount outstanding shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor. (10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured as .....

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(a) to (d) of sub-section (4) in relation to the secured assets under this Act. (12) The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed. (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written cons .....

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d period of remand etc., by the special Act, are different to the general law of CrPC, the special law prevails over CrPC and in interpretation of Statutes, provisions should be construed so as to the ends of justice and not to frustrate the same; though court cannot resort to judicial legislation but it can mould and creatively interpret the provisions by adopting such functional approach and go behind the words to remove the difficulties in implementation of the legislative intent that to be c .....

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law over general law to that extent from any irreconcilability, but for to reconcile any law and equity from the contention of the auction purchaser already paid the amount and property transferred in his favour and equity does not permit to set aside the sale by any technicalities. In fact, if at all there is any equity, it must weigh in favour of the borrower from the expression of the Apex Court in this regard in N.Padmamma Vs.S.Ramakrishna Reddy (2008) 15 SCC 517 that the procedure laid dow .....

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th the Latin maxim- Dura Lex Sed Lex. In this regard the Apex Court in Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction Company(P) Ltd. (2010) 8 SCC 24 held that interpretative tools could be used by the Courts to set right the situation by adding or substituting the words in the statute when plain and grammatical construction would lead to confusion, absurdity and repugnancy and otherwise not. In fact the Apex Court in its latest expression in Narayan Vs. Babasaheb 2016 (6) SCC 725 he .....

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as been served to the borrower. So there must be minimum thirty days gap. 13. In this regard, it is necessary to refer Sections 35 to 37 of the SARFAESI Act. As per Sec.35, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. As per Sec.36, no secured creditor shall be entitled to take all or any of the measures under sub-section (4) of sectio .....

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ct, 1993 (51 of 1993) or any other law for the time being in force. Thus, the provisions of the Act, shall not be in derogation but in addition to any other law for the time being in force (which include the General Clauses Act and Indian Limitation Act) unless same is inconsistent with any other law to say then the provisions of the Act prevails over the other law inconsistent to it. In this regard, the Apex Court in Mathew Varghese v. M.Amritha Kumar (2014) 5 SCC 610 held at para-45 as follows .....

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being inconsistent with the provisions of the SARFAESI Act, the application of both the Acts, namely, SARFAESI Act and RDDB Act, would be complementary to each other. From the above, coming to Section 9 of the General Clauses Act and Section 12 of the Indian Limitation Act: Section 9 of the General Clauses Act reads as under: 9. Commencement and termination of time- (1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excludin .....

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limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed .....

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to prepare the decree or order before an application for a copy thereof is made shall not be excluded. Thus, in computing the 30 days, the day of publication in newspaper or the day of sale one to be excluded. Thereby the contention that 30 days to be counted is inclusive of both days is unsustainable on its face from what Rule 9(1) speaks of before the expiry of thirty days from the date of publication, no sale shall take place. So there must be clear 30 days in between from the date of publica .....

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e is to provide sufficient time and opportunity to the borrower to take all efforts to safeguard his right of ownership either by tendering the dues to the creditor before the date and time of the sale or transfer, or ensure that the SECURED ASSET derives the maximum price and no one is allowed to exploit the vulnerable situation in which the borrower is placed. 34. At this juncture, it will also be worthwhile to refer to Rules 8(1) to (3) and in particular Sub-rule (3), in order to note the res .....

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ld be in the vernacular language having sufficient circulation in the locality and also such publication should have been made seven days prior to the intention of taking possession. Sub-rule (3) of Rule 8 really casts much more onerous responsibility on the secured creditor once possession is actually taken by its authorised officer. Under Sub-rule (3) of Rule 8, the property taken possession of by the secured creditor should be kept in its custody or in the custody of a person authorized or ap .....

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take possession of such an immovable property belonging to the owner and also empowers to deal with it by way of sale or transfer for the purpose of realizing the secured debt of the borrower, it does not mean that such wide power can be exercised arbitrarily or whimsically to the utter disadvantage of the borrower. [35] Under Sub-rule (4) of Rule 8, it is further stipulated that the authorized officer should take steps for preservation and protection of secured assets and INSURE them if necessa .....

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d interest in a secured asset is created by the borrower in favour of the secured creditor, the said asset in the event of the same having become a non-performing asset cannot be dealt with in a light-hearted manner by way of sale or transfer or disposed of in a casual manner or by not adhering to the prescriptions contained under the SARFAESI Act and the abovesaid Rules mentioned by us. [36] Having analyzed the relevant statutory prescriptions under the SARFAESI Act, as well as, the Rules, 2002 .....

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served on the mortgagor. Therefore, it was held that until the sale is complete by registration of sale, the mortgagor does not loose the right of redemption. It was also made clear that it was erroneous to suggest that the mortgagee would be acting as the agent of the mortgagor in selling the property. [39] ……[52]. [53] We, therefore, hold that unless and until a clear 30 days notice is given to the borrower, no sale or transfer can be resorted to by a secured creditor. In the eve .....

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thrown on the borrower, it is imperative that for effecting the sale, the procedure prescribed above will have to be followed afresh, as the notice issued earlier would lapse. In that respect, the only other provision to be noted is Sub-rule (8) of Rule 8 as per which sale by any method other than public auction or public tender can be on such terms as may be settled between the parties in writing. As far as Sub-rule (8) is concerned, the parties referred to can only relate to the secured credit .....

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ns of the SARFAESI Act, in particular Section 13(1) and (8) of the said Act. 15. Further, Mathew Varghese supra has been followed in J.Rajiv Subramaniyan vs. M/s Pandiyas (2014) 5 SCC 651 and the Apex Court i n Vasu P. Shetty vs M/S Hotel Vandana Palace (2014)5 SCC-660, relying upon Mathew Varghese and J.Rajiv Subramaniyan supra held the requirement of clear 30 days gap from date of sale notice and publication to date of sale and any violation of such 30 days clear gap of notice and publication .....

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that there must be clear 30 days duration to say a clear 30 days time gap, the relevant observation reads as follows:- A propos the statutory procedural prescriptions in Rules 8 and 9 of the Rules of 2002, the Supreme Court opined that the requirement under Rule 8(6) and Rule 9(1) contemplates a clear 30 days individual notice to the borrower and also a public notice by way of publication in the newspapers. In other words, per the Supreme Court, while the publication in a newspaper should provi .....

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