{"id":165062,"date":"2010-05-07T00:00:00","date_gmt":"2010-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pankajbhai-vs-the-on-7-may-2010"},"modified":"2017-09-21T09:39:18","modified_gmt":"2017-09-21T04:09:18","slug":"pankajbhai-vs-the-on-7-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pankajbhai-vs-the-on-7-may-2010","title":{"rendered":"Pankajbhai vs The on 7 May, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pankajbhai vs The on 7 May, 2010<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/14629\/2007\t 8\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 14629 of 2007\n \n\n \n \n=========================================\n\n\n \n\nPANKAJBHAI\nBABULAL DAVE - Petitioner(s)\n \n\nVersus\n \n\nTHE\nSTATE BANK OF INDIA & 1 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nPUSHPADATTA VYAS for the Petitioner. \nMS NALINI S LODHA for\nRespondent no.1. \nMR MANISH J PATEL and MR HEMAL A DAVE for\nRespondent no.2. \n========================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 07\/05\/2010 \n\n \n\n \n \n\t\t\t\t\tORAL\nORDER<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE AKIL KURESHI)<\/p>\n
\t\tThe
\npetitioner has filed this petition challenging the order dated 8th
\nJune, 2007 passed by Debt Recovery Appellate Tribunal, Ahmedabad in
\nAppeal No. 23 of 2007 filed by the petitioner herein. He has also
\nprayed for quashing and setting aside the notice dated 17th February,
\n2007 produced at Annexure “A” to the petition under which
\nresidential property of the petitioner was put to auction sale by the
\nrespondent no.1 Bank.\n<\/p>\n
2.\t\tIt
\nis not in dispute that the petitioner was a borrower of the
\nrespondent bank, the secured creditor, having become a guarantor to a
\nloan obtained by the principal borrower from the bank. It is also not
\nin dispute that the principal amount alongwith accumulated interest
\nwas not repaid. The respondent bank therefore, initiated proceedings
\nunder The Securitisation and Reconstruction of Financial Assents and
\nEnforcement of Security Interest Act, 2002 (hereinafter referred to
\nas “The Securitisation Act” for short).\n<\/p>\n
3.\t\tNotice
\nunder Section 13(2) of the Act was issued. Under Section 13(4) of the
\nAct, the respondent Bank also took possession of the property in
\nquestion. Till then the petitioner took no steps. It is a case of the
\nrespondent bank that thereafter, the property in question was put to
\nauction sale.\n<\/p>\n
4.\t\tIt
\nappears that the petitioner, at one stage, approached the respondent
\nbank seeking benefit of One Time Settlement. In this regard, from the
\nbank a communication was issued to the petitioner on 21st January,
\n2006 indicating that the petitioner should pay the minimum amount of
\nRs. 7,50,000\/- and further that his application for One Time
\nSettlement should be received before 31st March, 2006 and that
\nsettlement should be reached latest by 30th June, 2006. It is a case
\nof the petitioner that though he had shown his willingness to abide
\nby the terms of the One Time Settlement, the respondent bank neither
\naccepted nor rejected his request. According to the bank, however,
\nthe offer of the petitioner was not unconditional. He had never shown
\nhis willingness to repay the entire debt as per One Time Settlement
\nterms and had shown his readiness to pay only part of the debt. To
\nthis aspect, we shall revert at a later stage.\n<\/p>\n
5.\t\tSince
\nthe bank was of the opinion that One Time Settlement offer had not
\nbeen worked out, the bank proceeded further with auction of the
\nproperty, the possession of which was taken under Securitisation Act.
\nA public notice was issued on 17th February, 2007 fixing the upset
\nprice at Rs. 7,50,000\/-.\n<\/p>\n
6.\t\tIt
\nappears that pursuant to the said auction notice, the auction was
\nheld, the property was sold for a sum of Rs.11,51,000\/-. It is the
\ncase of the bank that the sale has been confirmed and the sale
\ncertificate has also been issued in favour of the highest bidder upon
\npayment of the full price.\n<\/p>\n
7.\t\tThe
\npetitioner moved an application before Debt Recovery Appellate
\nTribunal being Appeal No. 23 of 2007. He challenged the sale notice
\ndated 17th February, 2007. This application was dismissed by the
\nimpugned order dated 8th June, 2007. The contention of the petitioner
\nthat no notice was issued to him before the auction was held, was
\nturned down on interpretation of Rule 9(1) as well as Rule 8(6) of
\nthe Security Interest (Enforcement) Rules, 2002. (“Rules”
\nfor short).\n<\/p>\n
8.\t\tIt
\nis this order of the Tribunal which  the petitioner has challenged in
\nthis petition alongwith the auction notice dated 17th February, 2007.\n<\/p>\n
9.\t\tBefore
\nus, the learned counsel for the petitioner vehemently submitted that
\nthe respondent bank did not finally reply to the request of the
\npetitioner for the benefit of One Time Settlement. Reliance was
\nplaced on the decision of Sardar Associates and Others vs. Punjab and
\nSind Bank and Others<\/a>  reported in (2009) 8 SCC 257, to contend that
\nsuch one One Time Settlement scheme is not discretionary and the
\nBank, if the borrower had shown willingness to abide was duty bound
\nto accept terms.\n<\/p>\n
10.\t\tIt
\nwas further contended that no notice was issued to the borrower.
\nReliance was placed on Rules   6,5,8 as well as 9(1) of the Rules to
\ncontend that individual notice to the borrower was necessary. Relying
\non proviso to sub-rule 6(1) of the Rules, it was contended that only
\nin case where the property is sought to be sold either through tender
\nor public auction, and by way of additional mode, a notice was
\nrequired to be published in the newspapers. In all cases, however, it
\nwas incumbent upon the bank to serve individual notice to the
\nborrower.\n<\/p>\n
11.\t\tRelying
\non the decision of the Apex Court in case of Commissioner
\nof Commercial Taxes, Board of Revenue, Madras and another vs.
\nRamkishan Shrikishan Jhaver etc. reported in AIR 1968 SC 59,
\nit was contended that a proviso if the context so provides can also
\nbe viewed as an individual provision and it is not always necessary
\nthat proviso is added to the statute by way of an exception to the
\nmain provision.\n<\/p>\n
12.\t\tReliance
\nwas also placed on the decision in the case of Kishorilal
\nvs. Sales Officer, District Land Development Bank and others
\nreported in 2006(7) SCC 496 to contend that when there is
\nno due notice to the borrower, the auction sale must fail.\n<\/p>\n
13.\t\tOn
\nthe other hand, learned counsel appearing for the respondent bank
\ncontended that the order passed by the Debt Recovery Tribunal was not
\nchallenged in the Appeal before Debt Recovery Appellate Tribunal
\nthough a statutory appeal was available.\n<\/p>\n
\t\tIt
\nwas contended that the possession of the  property was taken by the
\nbank after following due   process. That the property was in
\npossession of the neighbour and the keys were handed over to the
\nbank. At that stage, the petitioner ought to have known about steps
\ntaken by the bank.\n<\/p>\n
\t\tIt
\nwas contended that public notice was issued, one in Gujarati
\nnewspaper circulated in Mahesana, where the party is situated and
\nanother in Business Standard being circulated from Ahmedabad. It is
\nnot possible to believe that the petitioner was not aware about such
\npublication.\n<\/p>\n
\t\tIt
\nwas contended that the previous auction attempts had failed since no
\noffers were available from prospective borrowers. At this stage, the
\npetitioner made no move to challenge the auction process.\n<\/p>\n
\t\tIt
\nwas further contended that the petitioner approached Debt Recovery
\nTribunal against the notice for auction, meaning thereby the
\npetitioner was aware about notice being issued in the newspapers.\n<\/p>\n
\t\tIt
\nwas further contended that the petitioner never agreed to repay the
\nentire debt as per One Time Settlement, the bank therefore, could not
\nhave accepted such an offer which was conditional in nature.\n<\/p>\n
14.\t\tPreviously,
\nby an order dated 8th March, 2010 though we had inquired from the
\nlearned counsel for the petitioner whether the petitioner would be
\nwilling to deposit interest at the rate of 12% in favour of the
\nauction-purchaser, the learned counsel orally conveyed that the
\npetitioner would be so willing. However, no affidavit has been filed
\nto this effect. In any case, neither the bank nor the
\nauction-purchaser agreed to accept such an offer. We have therefore,
\nno option but to decide the petition on merits.\n<\/p>\n
15.\t\tHaving
\nheard learned counsel at considerable length and having perused the
\nmaterial on record, we find that the issue of non-acceptance of One
\nTime Settlement in favour of the petitioner needs summary conclusion.
\nWhat is pointed out by the learned counsel for the bank, the
\npetitioner had not shown willingness to pay the entire amount that
\nwould have been payable under One Time Settlement. His willingness
\nwas to pay only part of the burden. One Time Settlement does not
\nenvisage acceptance of amount in part. The stand of the bank that
\nsuch an offer being a conditional one could not have been accepted,
\nwarrants no interference. In that view of the matter, non-conveyance
\nof the bank to the petitioner about  his letter would not be fatal to
\nthe proceedings. Had the offer of the petitioner been unconditional,
\nperhaps, the bank was duty bound to consider the same in terms of the
\nscheme and convey its decision to the petitioner before taking
\nfurther steps.\n<\/p>\n
16.\t\tWith
\nrespect to the requirement of the individual notice, we may notice
\nrelevant statutory provisions at this stage. Rule 8 of the Rules
\npertains to the sale of immovable secured assets. Rule  9 pertains to
\ntime of sale, issue of sale certificate and delivery of possession
\netc. The relevant portion of the provisions reads as follows:\n<\/p>\n
“8. Sale
\nof immovable secured assets-\n<\/p>\n
(1) xxx   xxx
\nxxx<\/p>\n
(2) xxx   xxx
\nxxx<\/p>\n
(3) xxx   xxx
\nxxx<\/p>\n
(4) xxx   xxx
\nxxx<\/p>\n
(5) Before
\neffecting sale of the immovable property referred to in sub-rule (1)
\nof rule 9, the authorised officer shall obtain valuation of the
\nproperty from an approved valuer and in consultation with the secured
\ncreditor, fix the reserve price of the property and may sell the
\nwhole or any part of such immovable secured asset by any of the
\nfollowing methods:-\n<\/p>\n
(a) by
\nobtaining quotations from the persons dealing with     similar
\nsecured assets or otherwise interested in buying the such assets; or <\/p>\n
(b) by inviting
\ntenders from the public;\n<\/p>\n
(c)  by holding
\npublic auction; or<\/p>\n
(d)  by private
\ntreaty.\n<\/p>\n
(6)  The
\nauthorised officer shall serve to the borrower a notice of thirty
\ndays for sale of the immovable secured assets, under sub-rule (5):\n<\/p>\n
\t\tProvided that
\nif the sale of such secured asset is being effected by either
\ninviting tenders from the public or by holding public auction, the
\nsecured creditor shall cause a public notice in two leading
\nnewspapers one in vernacular language having sufficient circulation
\nin the locality by setting out the terms of the sale, which shall
\ninclude-\n<\/p>\n
(a) The
\ndescription of the immovable property to be sold, including the
\ndetails of the encumbrances known to the secured creditor;\n<\/p>\n
(b)  the
\nsecured debt for recovery of which the property is to be sold;\n<\/p>\n
(c)  reserve
\nprice, below which the property may not be sold;\n<\/p>\n
(d)  time and
\nplace of public auction or the time after which sale by any other
\nmode shall be completed;\n<\/p>\n
(e) depositing
\nearnest money as may be stipulated by the secured creditor;\n<\/p>\n
(f)  any other
\nthing which the authorised officer considers it material for a
\npurchaser to know in order to judge the nature and value of the
\nproperty;\n<\/p>\n
9.  Time of
\nsale, issues of sale certificate and delivery of possession etc. –\n<\/p>\n
(1) No sale of
\nimmovable property under these rules shall take place before th
\nexpiry of thirty days from the date on which the public notice of
\nsale is published in newspapers as referred to in the proviso to
\nsub-rule (6) or notice of sale has been served to the borrower.”\n<\/p>\n
17.\t\tUpon
\nperusal of the above noted provisions, one would find that under
\nsub-rule (1) of Rule 9 of the Rules, it is provided that no sale of
\nimmovable asset under this Rule shall take place before expiry of 30
\ndays from the date on which public notice of sale is published as
\nreferred to in sub-rule 6 or notice of sale has been served to the
\nborrower.\n<\/p>\n
\t\tTherefore,
\nreverting to the provisions of sub-rule (6), one finds that it
\nrequires an authorised officer to serve to the borrower a notice of
\n30 days for sale of immovable secured assets under Sub-rule (5).
\nProviso however, provides that if sale of such secured assets is
\nbeing effected, either by inviting tenders from the public or by
\nholding a public auction, the secured creditor is required to cause a
\npublic notice in two leading news papers, one in Vernacular and
\nanother having sufficient circulation.\n<\/p>\n
18.\t\tIt
\ncan thus be seen that though ordinary mode of serving a notice to
\nthe borrower of auction of 30 days of individual notice, however,
\nwhere under  four modes envisaged for disposal of the property, the
\nbank proposes to sell the property either by way of tender or by way
\nof a public auction, it is sufficient if the notice is published in
\ntwo newspapers as provided under the proviso to sub-rule 6 of Rule 8
\nof the Rules. To our mind, the proviso provides for exception to the
\nmain requirement of the individual notice to a borrower in case of
\nwhere the bank proposes to sell the property either by auction or by
\na tender. The purpose appears to be quite simple. If through tender
\nor through public auction, members of public are required to be
\ninvited to bid for the property, additional individual notice to the
\nborrower in such a case would not be necessary since the secured
\ncreditor in any case would be required to issue a public notice for
\nthe same. Significantly, in the proviso, the words having used “shall
\ncause a public notice” and does not use the words “shall
\nalso cause a public notice”. This, to our mind is one of the
\ncommunications that the proviso to be made an exception to the main
\nrequirement contained in the main Rule 6.\n<\/p>\n
19.\t\tIn
\nthe present case, admittedly, public notices were issued. It is not
\npossible to hold that the petitioner was not aware about said steps
\nbeing initiated by the bank. He took no steps to raise objection at
\nthat stage. The allegation of fraud are neither pleaded on record nor
\nany individual is joined in the petition by name. Such allegations
\nare therefore, not taken into account in this petition.\n<\/p>\n
20.\t\tBefore
\nclosing, we may notice that under an order dated 11th April, 2008,
\nthe petitioner was required to deposit a sum of Rs. 11,51,000\/-
\nbefore this Court. Learned counsel for the petitioner pointed out
\nthat the said amount was deposited on 2nd May, 2008. If the
\npetitioner applies for refund of such amount to the Registry, the
\nsame shall be paid to the petitioner through an account payee cheque
\nafter due verification alongwith accrued interest, if any.\n<\/p>\n
21.\t\tSubject
\nto above directions, the petition is dismissed. Rule is discharged.
\nNo costs.\n<\/p>\n
                    (S.J.Mukhopadhaya,C.J.)<\/p>\n
                    (Akil
\nKureshi,J)<\/p>\n
***vcdarji<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pankajbhai vs The on 7 May, 2010 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp; Gujarat High Court Case Information System Print SCA\/14629\/2007 8\/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14629 of 2007 ========================================= PANKAJBHAI BABULAL DAVE – Petitioner(s) Versus THE STATE BANK OF INDIA & 1 – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-165062","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPankajbhai vs The on 7 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pankajbhai-vs-the-on-7-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pankajbhai vs The on 7 May, 2010 - 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