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Sheeba Philominal Merlin Versus The Repatriates Co-Op Finance

2010 (8) TMI 1061 - MADRAS HIGH COURT

W.P.No.15272 of 2009 - Dated:- 10-8-2010 - F.M. IBRAHIM KALIFULLA AND N.KIRUBAKARAN JJ. G. Rajagopalan, Senior Counsel for Mr. S. Thiruvenkataswamy. For Respondents :Mr. Yashood Varthan, Senior Counsel for Mr. P.V. Sanjeev for Mr. K.M. Vijayan Senior Counsel for Mr. K.R. Ramesh Kumar. ORDER N. KIRUBAKARAN,J "ABUSE", "MISUSE" Meaning of the above words is the facts of this case. 2. The object of the Securitisation and Reconstruction of Financial Assets and Enforcement of Secur .....

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d by the Central Government for the purpose of examining banking sector reforms and to consider the need for changes in the legal system in respect of these areas. The provisions of the would enable the banks and financial institutions to realise long-term assets, manage problems of liquidity and asset liability mismatches and to improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction. .....

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would be put to execution by filing E.P. The Execution Court after service of notice would bring the property of the debtor/guarantor for sale through auction. To reach this stage, lot of money, especially very long time have to be spent. The above process is dispensed with by the Special Act "SARFAESI ACT" which is meant only for the financial institutions. As per the Act, the first step would be to issue notice U/s. 13(2) by the authorised officer who is deemed to be armed with a mon .....

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le upholding the validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(54 of 2002) is as follows: The financial institutions, namely the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their of the obligation as a party to the contract. They cannot be free from it. Irrespective of the fact as to whatev .....

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be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely, borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence deficiencies on the part of the ban .....

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started getting bogged down due to invoking of technicalities by the borrowers. Faced with this situation, the Government again asked the Narasimham Committee to suggest measures for expediting recovery of debts, etc. due to banks and financial institutions. 45. In its Second Report, the Narasimham Committee observed that the non-performing assets of most of the public sector banks were abnormally high and the existing mechanism for recovery of the same was wholly insufficient. In Chapter VIII o .....

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also for quick resolution of disputes arising out of the action taken for recovery of such dues. 47. The Andhyarujina Committee constituted by the Central Government for examining banking sector reforms also considered the need for changes in the legal system. Both the Narasimham and Andhyarujina Committees suggested enactment of new legislation for securitisation and empowering the banks and financial institutions to take possession of the securities and sell them without intervention of the co .....

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vised manner which is unknown to law. 6. The facts of the case are as follows: It is the case of the petitioners that the first petitioner's husband died on 06.09.2005. The first petitioner, due to some misunderstanding with her husband got separated and has been living with the second petitioner who is their daughter. After the demise of S.Jayakumar, the husband of the first petitioner, petitioiners came to know about the advertisement in newspapers about the sale of their property bearing .....

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.Jayakumar and also handed over copies of the death certificate as well as the legal heir certificate. 7. The petitioners contend that no notice as contemplated under Section 13(2) of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act(SARFAESI)2002 and under Section 13(4) was issued. Pursuant to the advertisement, the first petitioner issued an Advocate Notice dated 30.09.2008 to give the details regarding the auction. A reply dated 17-10-2008 was rece .....

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ted 13-09-2008 and for a direction to restore the possession as the sale of property was vitiated by fraud and not following the procedure contemplated under the Act. 9. The respondents 1 to 3 herein filed a counter affidavit contending that the property was given by way of deposit of title deeds by S.Jayakumar for the loan to M/s. Path Finders Technologies Limited to the tune of ₹ 14,00,000/- on 04-06-1998. As the borrower failed to repay the amount, respondent bank proceeded under the SA .....

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₹ 35,00,000/- to the respondent bank. As the settlement could not be reached, the said amount was refunded on 12-08-2008 to the aforesaid persons. Thereafter by publishing notice through newspaper, the sale was conducted on 11-08-2008 and the fourth respondent being the highest bidder to the tune of ₹ 33,50,000/- the sale was confirmed in his favour. The Sale Certificate dated 13-09-2008 was also issued. 11. It is further submitted by the respondent bank that they have no records pe .....

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petition before this court under Article 226 of the Constitution of India. 12. Additional counters were also filed on behalf of the bank on 09-11-2009 and on 17-11-2009. In the counter affidavit filed on 09-11-2009, it has been stated in paragraph '4' that the respondent bank was unable to find out the whereabouts of S.Jayakumar, inspite of the best efforts by the Recovery Officers of the bank. In paragraph '6' of the counter affidavit, it is stated that on 28-07-2008, one E.Ravi .....

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77; 12,46,521/-". 13. In para 8 of the additional counter affidavit, dated 17.11.2009, it is alleged by the respondent bank that a demand notice dated 02-01-2008 was issued to the borrower in writing, to the effect that S.Jayakumar absconded and the said notice was duly served on the authorized agent, one Md.Thahir. Moreover, the aforesaid notice was also served on M/s. S.J.K.Charitable Trust which was in possession of the secured asset. 14. A reply was filed on behalf of the petitioners on .....

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the petitioners never authorized the said Ravichandran or any other person to negotiate with the bank and the petitioners denied that the second petitioner was a Trustee of M/s.S.J.K Charitable Trust as she was a college student during the period 2003-2007. They further stated that the bank fraudulently permitted one Mohammed Tahir who is claiming to be the agent of said S.Jayakumar who died in the year 2005 to participate in the auction held on 28.7.2008. 15. Mr.G.Rajagopalan, learned Senior C .....

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thdraw the same from the bank clandestinely without ascertaining whether they represented S.Jayakumar or not. d)The Sale notice dated 18-06-2008 stated the liability as ₹ 19,11,184/- whereas in the additional counter affidavit it is stated that after adjustment of sale proceeds viz. ₹ 33,50,000/- still a sum of ₹ 12,46,521/- is due. e) The bank did not ascertain the facts regarding the alleged authorisation letter of S.Jayakumar and acted upon the said letter. f) As there are s .....

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uot; as the bank refused to give the advertisement details regarding the sale dated 11.08.2008 in spite of the petitioners' notice and the property worth about more than ₹ 1.5 Crores was sold at a very low price of ₹ 33,50,000/-. He relied upon the judgment of the Honourable Supreme Court in Express Newspapers Pvt Ltd., and others -Vs-Union of India and others reported in AIR 1986 SC 872. 17. With regard to the proceedings taken by the Bank, the learned Senior Counsel submitted t .....

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contention of the bank with regard to the alternative remedy is not sustainable as the auction by the bank violates the principles of natural justice and violates fundamental rights and therefore alternative remedy is not a bar for maintaining the writ. To that effect he relied upon the judgments in Whirlpool Corporation -Vs- Registrar of Trade Marks, Mumbai and others reported in AIR 1999 SC 22, and judgment in Mariamma Roy -Vs- Indian Bank and others reported in 2009 AIR SCW 654 in State of Ut .....

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r condoning the delay. As the petitioners belatedly came to know about the action of the bank, the limitation already expired and therefore, the petitioners have rightly approached this Court. The learned Counsel relied upon the judgment in Commissioner of Customs and Central Excise -Vs- Hongo India Private Limited and another reported in 2009 (5) SCC 791 with respect to limitation. 20. On the other hand, Mr. Yashod Vardhan, learned Senior Counsel appearing for the respondents 1 to 3, submitted .....

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Supreme Court in Janatha Textiles and others -Vs- Tax Recovery Officer and another reported in (2008) 12 SCC 582, wherein for recovery of Income Tax, notices were served on individual partners of partnership firm and a ground was raised contending that notice was issued in the individual capacity and the same was rejected by the Honourable Supreme Court stating that no prejudice of any kind was caused and notices were received by the individual partners. Moreover, in paragraph '18' of th .....

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as not brought to the notice at the appropriate stage and therefore, this Court held that notification cannot be a nullity. He also relied upon the judgment in Industrial Development Bank of India Limited by Deputy General Manager & the Authorised Officer, Chennai-15 -Vs- M/s. Kamaldeep Synthetics Limited rep. by its Managing Director, Chennai -17 reported in 2007 (3) LW 834 and a judgment in Bombay Dyeing & Manufacturing Co Ltd., -Vs- Bombay Environmental Action Group and others reporte .....

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might not be in a position to know about the alleged violations. As per the auction notice, he took part in the auction and he was the highest bidder and paid the necessary sale consideration. He also got Sale Certificate and took possession of the property. Therefore the bona fide purchaser's rights should be safeguarded irrespective of the alleged violations. The learned Senior Counsel relied upon the judgment of the Honourable Supreme Court in Janatha Textiles and others -Vs- Tax Recover .....

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C 469, wherein it is held that any person aggrieved by the measures taken under Section 13(4) of SARFAESI Act, can file an appeal before the Tribunal and therefore the writ petition is not maintainable. The learned Senior Counsel relied upon a judgment of the Honourable Supreme Court in Commissioner of Customs & Central Excise -Vs- Hongo India (P) Ltd., reported in 2009 (236) E.L.T.417(S.C) wherein In that case, it was held that when a time limit is prescribed under the Act this Court cannot .....

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s/delay on the part of the petitioners in approaching this Court, the petition is liable to be dismissed. 24. This court considered the submissions made by the parties and perused the materials available on records. 25. For invoking the SARFAESI Act, the first step is issuance of notice under Section 13(2) of the SARFAESI Act . Section 13 of the Act is extracted as follows: "13. Enforcement of Security interest-(1) Notwithstanding anything contained in section 69 or section 69A of the Trans .....

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ing 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 notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4). (3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-paymen .....

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he 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 upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A. (4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measur .....

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S.Jayakumar or the petitioners being the legal representatives of the S.Jayakumar, as guarantor for the loan. In paragraph '6' of the original counter affidavit filed by the respondent bank, it is stated that they proceeded as per the provisions of the SARFAESI Act by issuing the demand notice dated 02-01-2008, Possession notice dated 26-04-2008 and the auction notice dated 18-06-2008. In paragraph '4' of the additional counter affidavit of the bank filed on 09-11-2009, the resp .....

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ale on 28.07.2008. Since S. Jayakumar was absconding and his authorized agent, Md. Thahir was not available, in spite of our best efforts he could not be traced, as prescribed in the Rules sale notice was duly affixed on the conspicuous part of the property and also published in two newspapers one in Tamil and another in English on 24.06.2008. In paragraph '12' in the same counter affidavit dated 09-11-2009, it is stated as follows: When the said S. Jayakumar absconded the possession of .....

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the Bank would prove that the notice under Sections 13(2) and 13(4) of the Act was not served on S. Jayakumar or the legal heirs. 29. How the notice under the act is required to be served? Rule 3 of the Security Interest (Enforcement) Rules 2002 speaks about the "Demand Notice." The said Rule 3 of the Act usefully is extracted as follows: Demand notice-(1) The service of demand notice as referred to in sub-section(2) of Section 13 of the Act shall be made by delivering or transmitting .....

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lieve that the borrower or his agent is avoiding the service of the notice or that for any other reason, the service cannot be made as aforesaid, the service shall be effected by affixing a copy of the demand notice on the outer door or some other conspicuous part of the house or building in which the borrower or his agent ordinarily resides or carries on business or personally works for gain and also by publishing the contents of the demand notice in two leading newspapers, one in vernacular la .....

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Rule 3 of the Security Interest (Enforcement) Rules, 2002, a demand notice under Section 13(2) shall be sent by Registered Post with Acknowledgment due or by Speed post or by Courier or by transmission of document, like fax message or electronic mail service. In this case, no such step was taken by the bank through any of the modes. To a query in this regard, it is admitted that the demand notice was not sent as per Rule 3 on S. Jayakumar or his legal heirs. Even otherwise, the records prove th .....

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d (12) of Section 13 of the SARFAESI Act 2002 and therefore, the said rules are subordinate legislation and they have force on the statute. It has been held by the Apex Court in Tamilnadu Electricity vs. Status Spinning Mills Ltd. Reported in 2008 (7) SCC 353 that subordinate legislation validly made may have to be read in the same manner as if it is part of the Act. 32. It is very rudimentary rather elementary that for an action under the SARFAESI Act issuance and service of notice under Sectio .....

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IR 1936 Privy Council 253(1), in State of Uttar Pradesh -Vs- Singhara Singh and others reported in AIR 1964 SC 358 Babu Verghese -Vs- Bar Council of Kerala and others reported in 1999 (3) SCC 422, in Ramchandra Murarilal Bhattad and others -Vs- State of Maharashtra and others reported in 2007 (2) SCC 588 and in Indian Banks' Association, Bombay and others -Vs- Devkala Consultancy Service and others reported in (2004) 11 SC 1, in Chandrakishore Jha vs. Mahavir Prasad reported in AIR 1999 SC 3 .....

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evealed the aforesaid fact. Records produced prove the absence of service of notice. As the Bank miserably failed to issue notice as per the Act, this Court has to necessarily declare any other notice purported to have been issued under Section 13(2) and 13(4) as invalid as they were issued against the dead person. In view of the settled position of law and in the absence of notices as per Section 13(2) and 13(4) and in the absence of service as per Rule 3 of the Security Interest (Enforcement) .....

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Article 300A of the Constitution of India. It has been held by the Honourable Supreme Court in Vimala Ben Ajith Bhai Patel -Vs- Vatsala Ben Ashok Bhai Patel reported in 2008 (4) SCC 649 that the right to property can be taken away only as per law and right to hold the property has been glorified as "Human Right". 36. That apart, it is well settled law that availability of an alternative remedy is not an absolute bar for exercising the writ jurisdiction and it is only a self-imposed re .....

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ners and by that time the time prescribed under the Act was over. The Judgement in Hongo India (P) Ltd relied upon by Mr.K.M.Vijayan, in fact, justifies the contention of the petitioners. As per the judgement, Courts cannot extend the time limit prescribed by the Statute. As such the only remedy for the petitioners is to file a writ petition which has been rightly done by them. 37. The Tribunal is not competent to look into violation of fundamental rights and constitutional rights and this Court .....

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urt has got more wider power than the Honourable Supreme Court. In Secretary Cannanore Muslim Educational Association, Kanpur vs. State of Kerala reported in 2010 (5) SCALE 184, the Apex Court held that the High Court is conferred with wide power to " reach injustice whenever it is found". Therefore as injustice is writ large and glaring, necessarily the judicial arm of this court has to reach there and it cannot be prevented by plea of availability of alternative remedy. 38. Authorisa .....

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ion that he was absconding. Without even verifying the authencity of the authorisation letter dated 15.7.2005 the bank should not have given notice on the alleged authorized agent. Moreover, personal service is not contemplated under Rule 3 of the Security Interest (Enforcement) Rules, 2002. The service of notice on the authorised agent was made in 2008 whereas Jayakumar died on 6.9.2005. Even if there was any authorisation that could be only during the life time of the principal. This would sug .....

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ed 15-07-2005 allegedly given by Jayakumar and every possibility of collusion between P.Md.Thahir and bank officials and the same could not be ruled out. The suspicion gets strengthened because the bank alleges the P.Md. Thahir as authorised agent of Jayakumar and it effected personal service of notice on the alleged authorised person. The said authorisation letter states as if Jayakumar borrowed ₹ 10,00,000/- from the respondent bank, where as the borrower is the M/s.Path finders and Jaya .....

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his case would illustrate as to how the bank officials with malafide intention used provisions of SARFAESI Act, which was enacted by the Parliament with an object of speedy recovery of money to the banks and financial institutions to achieve some evil designs. The Bank is directed to entrust the case to an investigation agency preferably CB-CID which can go into the matter in detail and based on the investigation report, suitable action can be taken against all persons concerned. 40. The content .....

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he trust to participate in the auction and it is also required to be investigated. 41. Very strangely, the bank allowed S.P.Ravindrakumar and E.Ravichandran as alleged representatives of borrowers/guarantors and allowed them to deposit a sum of ₹ 35,00,000/- into Bank on 28.7.2008 and refunded the same on 12.08.2008. This was also done based on the letter dated 28-07-2008 written by E.Ravichandran. It is not clear as to how the Bank without any authorisation, allowed the third parties to d .....

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ived from various parties, would reveal that there were tampering of bid amounts and the fourth respondent's bid was ₹ 33,50,000/-. As stated above, the bids were tampered as detailed below: a) The bid submitted by E.Ravichandran for a sum of ₹ 38,00,000/-, was struck off and ₹ 30,00,000/- was entered into. b) The bid of A.Malaisamy ₹ 41,00,000/- was tampered with and entered as ₹ 29,00,000/-. c) A bid of ₹ 35,90,000/- was altered and ₹ 28,90,000/- w .....

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#39;s rights to the wind under the guise of proceedings under SARFAESI Act. Therefore, the investigation should cover the above aspect also. 43. In this context it will be worthwhile to refer to a recent decision of the Hon'ble Supreme Court in Eureka Forbes Ltd. vs. Allahabad Bank reported in 2010(6) SCC 193 in which the Apex Court decried about the need for greater responsibility on the part of the Bank officials and held in paragraphs 76,78,79 and 82 as follows: "76. The legislative .....

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of the State or its instrumentality. 78. The concept of public accountability and performance is applicable to the present case as well. These are instrumentality of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the government department, if not with a greater rigour. The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public ser .....

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wasted and secondly, it even affects the borrower's interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and p .....

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in discharge of public duties can result in varied defects not only in the decision-making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance." Claim as Bonafide Purchaser 44. With regard to the contention of Mr.K.M.Vijayan, learned Senior counsel that the fourth respondent is a bona fide purchaser, it cannot be true in view of fraudulent alteration, modi .....

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be protected, has to be rejected. Therefore, the benefit/right accrued to the fourth respondent through auction sale cannot be sustained. In any event irrespective of as to whether the fourth respondent is bona fide purchaser or not the sale in favour of the fourth respondent should vanish at once when the entire procedure resulting in auction sale is found to be vitiated on so many grounds including "fraud". It is well settled law that "fraud" vitiates every action. 45. As .....

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n from the respondent bank he is at liberty to take steps in this regard. DIRECTION AND RELIEF 46. In this case the action of the bank officials resulted in loss to bank as well as to the guarantor, as the property ex-facie was allegedly sold for a very low price. It is common knowledge that it is very difficult to get a ground in and around Chennai for a price lesser than ₹ 50 lakhs where as in this case a property measuring about 3168 > sq. ft. in Ayanavaram was allegedly sold palpabl .....

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