TMI Blog2020 (3) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the encumbrance is not disclosed in the E-auction notice by the respondent bank - This court is unable to accept the contention of the petitioner that he is aggrieved by not referring to the order of attachment in the E-auction notice. First of all the petitioner is not a secured creditor and the order of attachment is much later to the proceedings initiated by the Bank under Securitization Act. Whether the Bank is required to accept the order of attachment before Judgment as an Encumbrance so as to disclose the same in the sale notice? - HELD THAT:- In this case, it is admitted that the bank has got the first charge in view of the mortgage and it is not in dispute that the proceedings for recovery of money had already been initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -auction notice by complying Rule 8 (6) of the Security Interest (Enforcement) Rules 2002. 2.The brief facts that are necessary for the disposal of this writ petition are as follows: The second respondent borrowed loan from the first respondent by creating an equitable mortgage in respect of the property of the second respondent. It is admitted that the second respondent failed to discharge the loan and the first respondent declared the account as NPA and initiated proceedings under SARFASI Act. Since the second respondent has not settled the amount despite notice under Section 13(2), it is admitted that the property is brought to sale. The impugned notification is the E-auction notice issued and published in Dinamalar, dated 26.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harging the entire dues of bank, the petitioner has approached this court stating that the E-auction notice should contain the encumbrance and that the petitioner's right will be in jeopardy, if the encumbrance is not disclosed in the E-auction notice by the respondent bank. 5.This court is unable to accept the contention of the petitioner that he is aggrieved by not referring to the order of attachment in the E-auction notice. First of all the petitioner is not a secured creditor and the order of attachment is much later to the proceedings initiated by the Bank under Securitization Act. 6.The learned counsel relied upon Rule 8 (7)(a) of Rules. Rule 8 reads as follows: 8.Sale of immovable secured assets (1) Where the secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property an may sell the whole or any part of such immovable secured asset by any of the following methods:- (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; or (b)by inviting tenders from the public; [(c)by holding public auction including through Eauction mode; or] (d)by private treaty; [Provided that in case of sale of immovable property in the State of Jammu and Kashmir, the provisions of Jammu and Kashmir Transfer of Property Act, 1977 shall apply to the person who acquires such property in the State.] (6)The authorised officer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaser in writing]. The question is whether the Bank is required to accept the order of attachment before Judgment as an Encumbrance so as to disclose the same in the sale notice. 7.The effect of an order of attachment before Judgment is stated in Section 64 C.P.C. Section 64 of Civil Procedure Code reads as follows: Section 64: Private alienation of property after attachment to be void._ (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. (2) Nothing in this section shall apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment is not binding on the bank to proceed against the property in the manner known to law as a secured creditor. The order of attachment before Judgment in a suit in which the Bank is not a party is not an encumbrance so as to affect the rights of Bank or the title of purchaser of property in the auction at the instance of Bank. 9.Learned counsel appearing for the respondent, relied upon a judgment of Division Bench of Delhi High Court in S.S.Dahiya and others Vs. Union of India and others, dated 14.02.2020, wherein it has been held as follows: 14. Encumbrance actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the land. It m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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