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TMI Blog2018 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... uld show that the respondent was fully aware that the said property is mortgaged with the appellant bank. It is immaterial if the borrower bank in the SARFAESI Act proceeding has informed that the bank was aware about the attachment order in 2010. As a matter of fact, as per the mandatory provision, it was the duty by the respondent to inform the joint owner or the complainant about the proceeding initiated against the borrower so that the claimant or the joint owner can take his stand and clarify the position before the authority. This thing has not happened in the present case. The substantial right of the bank is involved as the bank has already initiated action under the SARFAESI Act and order under section 13(4) has been passed, it has become necessary to hear the appeal on merit. Such delay, in fact, has happened due to non-compliance of the provisions by respondent no. 1. The same cannot be attributed to the appellant. - MP-PMLA-3920/HYD/2017 (Stay) FPA-PMLA-1998/HYD/2017 - - - Dated:- 29-8-2018 - Justice Manmohan Singh, Chairman For the Appellant : Ms. Richa Narain, Advocate For the Respondent : Shri Rajiv Awasthi, Advocate, Shri Gaurav Natrajan, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel appearing on behalf of respondent no. 2 3. 6. I have gone through the application filed by the appellant. The relevant dates mentioned in the application are read in paras 2.1 to 2.9, which are reproduced below:- 2.1 On 31.8.2010 the Appellant through its counsel sent a notice U/s 13(2), SARFAESI Act as Respondent no.2 and 3 had defaulted in repayment of the home loan advanced by the Appellant. 2.2 On 20.09.2010, Respondent Nos. 2 and 3 replied to the notice U/s 13(2), SARFAESI Act informing the Appellant Bank for the first time about the Provisional Attachment Order No. 02/2010 dated 31.03.2010 and the attachment of the Property by Respondent No. 1. 2.3 Consequently, the Appellant Bank approached Respondent No. 1 to inquire about the status of the Property and was informed that the said matter was under investigation and the Appellant would be intimated further. Respondent no. 1 also suggested, in the alternate, that the Appellant Bank may make a representation before the Criminal Court where the criminal case was pending against Respondent No.2. However, Respondent No. 1 did not convey further information to the Appellant. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has filed the writ petition before the High Court challenging the impugned order. However, the said writ petition was disposed of and thereafter the present appellant has been filed under Section 26 of the PML Act. There was a delay of 54 days in filing the appeal after passing the order by the High Court of Delhi. Counsel for the appellant has argued that the knowledge of attachment of the mortgaged property is immaterial as it was mandated in section 8(1) (2) of the PML Act, 2002 to the respondent no. 1 to serve the notice and opportunity should have been given to the appellant to file reply and hearing but it has not happened. It is the respondent who failed to perform its duty. 9. It is admitted position that in the provisional attachment order which would show that the respondent was fully aware that the appellant was the claimant in one of the properties as the same is admitted in para 21 of the provisional attachment order. The relevant extract of para 21 of provisional attachment order reads as under; As regards the known sources of his and his family members income, he stated that the main source of income is his salary and the employees stock options under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the reply, if any, to the notice issued under subsection (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf, and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money laundering. 11. Admittedly, the property, in question, was mortgaged with the appellant bank and borrower and bank have executed the equitable mortgage deed. The Notice under section 13(2) was also issued. The prayer made in the application in Section 13(2) under the SARFAESI Act has also been allowed. Once the symbolic possession is taken by the bank of the mortgaged property, the appellant has become the joint owner/aggrieved party/interested party of the said property within the meaning of 1st proviso of section 8(1) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, as per the mandatory provision, it was the duty by the respondent to inform the joint owner or the complainant about the proceeding initiated against the borrower so that the claimant or the joint owner can take his stand and clarify the position before the authority. This thing has not happened in the present case. 16. I am of the view that the substantial right of the bank is involved as the bank has already initiated action under the SARFAESI Act and order under section 13(4) has been passed, it has become necessary to hear the appeal on merit. Such delay, in fact, has happened due to non-compliance of the provisions by respondent no. 1. The same cannot be attributed to the appellant. 17. As far as the delay of 54 days is concerned, the appellant was aware about the order passed by the High Court. Such delay is only condoned subject to the cost. 18. Under these circumstances, the delay of 54 days is condoned subject to the cost of ₹ 20,000/- which shall be paid by the appellant bank to the learned counsel appearing on behalf of the respondent no. 1. The application is accordingly disposed of. 19. Issue notice in the appeal. Reply be filed within 4 weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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