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Court No. - 24
Case :- MISC. SINGLE No. - 5940 of 2009
Petitioner :- Allahabad Bank Lko.Thorugh Its Authorised Officer
Respondent :- District Magistrate Lucknow And Ors.
Petitioner Counsel :- Abhay Kumar
Respondent Counsel :- C.S.C.,Manish Mathur
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Hon'ble Rajiv Sharma,J.
Heard Sri Abhay Kumar, learned Counsel for the petitioner-
Bank and learned Standing Counsel for respondent No.1 and Sri
Manish Mathur for opposite parties No. 2 and 3.
Through the instant writ petition, petitioner-Bank has
assailed the order dated 2.9.2009 passed by the opposite party
No.1-District Magistrate, Lucknow, whereby petitioner’s
application moved under Section 14 of Securitisation &
Reconstruction of Financial Assets & Enforcement of Security
Interest Act, 2002 [hereinafter referred to as ‘SARFAESI ACT’]
for taking over the physical possession of the property mortgaged
by it’s Aishbagh, Lucknow Branch, was rejected.
Learned Counsel for the petitioner submits that Singh
Associates had taken loan of Rs.4,00,000/- [Four lakhs rupees
only] under cash credit limit from petitioner’s Bank, namely,
Allahabad Bank, Aishbagh, Lucknow Branch, Lucknow, for
promoting it’s medicine business but he failed to repay the due
amount as per the terms and conditions of the loan and as such,
the petitioner’s bank declared the said account as non performing
asset with effect from 31.3.2007. Thereafter, the Authorized
Officer, Zonal Office, Allahabad Bank, Lucknow, in exercise of his
power under Section 13 (2) of the SARFAESI Act, 2002, issued
notice to the opposite party No.2-Sumitra Devi on 8.12.2007 but
the opposite party No.2 did not pay any heed and as such, on
23.2.2008, the Authorized Officer, in exercise of powers under
Section 13 (4) of SARFAESI Act read with Rule 6 (2) and Rule 8
(6) of the SARFESI Act sent a notice to the opposite party No.2,
mentioning therein that even after issuance of demand notice on
8.12.2007, she failed to deposit the due amount and as such, the
Authorized Officer had after seizure taken over the possession of
the property described in the notice on 8.2.2008. The possession
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notice dated 14.2.2008 to the concerned property was published
in the local dailies “United Bharat” dated 13.2.2008 and “Business
Standard” and thereafter, the sale notice of the aforesaid property
was published in the Lucknow Edition of “Hindustan” and
“Business Standard” newspapers on 26.2.2008 and 27.2.2008,
respectively.
Learned Counsel for the petitioner further submits that on
28.3.2008, when all the tenders were opened at Zonal Office,
Hazratganj, Lucknow, the tender applied by Sri Pradeep Kumar
was found to be highest. They were informed by the Bank
authorities in this regard to deposit the rest of amount except to
the amount deposited by him with the tender. Pursuant thereof,
the opposite party No.3 deposited the demand draft amounting to
Rs.5,08,750. Thereafter, vide letter dated 10.6.2008, the
petitioner’s Bank informed to the opposite party No.3-Sri Pradeep
Kumar to deposit 75% of the balance amount. In response
thereof, he had sent one bank draft amounting to Rs. 4,00,000/-
in favour of the Bank by the letter dated 19.6.2008, indicating
therein that rest of the amount shall be paid by him after he gets
the possession of the land.
Learned Counsel for the petitioner submits that though the
Bank had taken the symbolic possession of the plot in question on
8.2.2008 i.e. after expiry of the period indicated in the notice
dated 8.12.2007 but as the physical possession of the plot in
question was not possible without the help of the police
administration and as such, the Authorized Officer preferred an
application under Section 14 of the SARFAESI Act before the
District Magistrate, Lucknow-opposite party No.1 on 13.3.2008, to
which the District Magistrate, Lucknow issued notice to the
opposite party No.2 but he did not turn up. Subsequently, on
5.11.2008, the opposite party No.3 moved an application for
impleadment before the District Magistrate, Lucknow, indicating
therein that the Bank authorities had auctioned the plot in
question without having their own possessing over the same and
as such, the Bank should be directed to refund the entire amount,
already deposited by him along with 24% interest. The opposite
party No.1, vide order dated 2.9.2009, rejected the petitioner’s
application for obtaining physical possessing of the plot in
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question. Feeling aggrieved, the petitioner has preferred the
instant writ petition.
During the course of arguments, Sri Manish Kumar, learned
Counsel for the opposite parties No.3 submits that he is ready to
deposit the balance amount as per the terms and conditions of the
auction in case the petitioner’s Bank is taking the full possession
and deliver the same peacefully in favour of the opposite party
No.3, to which learned Counsel for the petitioner’s bank has no
objection.
In view of the above, with the consent of learned Counsel
for the parties, the writ petition is allowed. The order dated
2.9.2009 passed by the District Magistrate, Lucknow-opposite
party No.1 is hereby set-aside. The District Magistrate is directed
to provide necessary police assistance for execution of the order
passed under Section 13 of the SARFESI Act, in accordance with
law, expeditiously, say, within a period of three months from the
date of receipt of a certified copy of this order. The opposite
parties No. 3 is directed to deposit the balance of the amount
within one month from the date of taking over the possession by
the petitioner’s bank. If such deposit being made by the opposite
party No.3 as per the auction of the plot in question, the physical
possessing of the same will be confirmed in favour of the opposite
party No.3 immediately thereafter.
20.7.2010
Ajit/-