Allowed

Palanisamy v. Gnanathamilarasi

DRAT24 Nov 2023REGULAR APPEAL/17/2023

Case brief

AI extract

What is this about?

The Tribunal allowed appeals filed by a bank and an auction purchaser against orders set aside a property sale. The judgment held that the lower tribunal exceeded powers under Section 17 of the SARFAESI Act by restoring possession directly instead of a fresh sale, and set aside orders passed without addressing pleadings.

What did the court decide?

Impugned orders setting aside sale and restoring possession to borrower were set aside; consequential applications dismissed. Pending IAs closed; parties bear their own costs.

Palanisamy versus Gnanathamilarasi — Banking and Recovery | DRAT (2023)

¶1

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 24^th of November, 2023

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar CHAIRPERSON

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RA (SA) 15/2023

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(SA No.11/2022 on the file of DRT-III, Chennai)

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RA (SA) 16/2023

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(SA 14/2022 on the file of DRT-III Chennai)

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RA (SA) 17/2023

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(SA No.14/2022 on the file of DRT-III, Chennai)

And

RA (SA) 18/2023

(SA No.11/2022 on the file of DRT-III, Chennai)

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RA (SA) 15/2023

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Between

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The Authorised Officer, City Union Bank Ltd., Credit Recovery and Management Department, Administrative Office, No.24-B, Gandhi Nagar, Kumbakonam – 612 001

Appellant

AND

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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M/s. Axis Formulations, Rep by its Partner, Mr. N. Sitaram, No. 42, Govindaraj Street EPR Nagar, Ullagaram, Chennai – 600 091.

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N. Sitaram

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S/o Mr. G. Narasimhan, No.42, Govindraj Street, EPR Nagar, Ullagaram, Chennai – 600 091.

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Mr. Palanisamy, No.5, Ramasamy Koil Street, Kottaiyur, Keelapavoor Post, Alangulam Taluk, Tenkasi District – 627 806

…….Respondents

RA (SA) 16/2023

Between

The Authorised Officer, City Union Bank Ltd., No. 149, TSR Big Street, Kumbakonam, Thanjavur District, Tamil Nadu - 612 001

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Appellant

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AND

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Mrs. Gnanathamilarasi, W/o Gnanapragasam, No.8, Sriperumbadur, Manavalanagar, Vengathur, Chennai – 600 091.

¶36

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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M/s. Axis Formulations, Rep. by its Partner, Mr. N. Sitaram, No. 42, Govindaraj Street, EPR Nagar, Ullagaram, Chennai – 600 091.

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Mr. Palanisamy, No.5, Ramasamy Koil Street, Kottaiyur, Keelapavoor Post, Alangulam Taluk, Tenkasi District – 627 806.

…… Respondents

RA (SA) 17/2023

Between

Mr. Palanisamy, No.5 Ramasamy Koil Street, Kottaiyur, Keelapavoor Post, Alangulam Taluk, Tenkasi District - 627 806 (PAN No. CTHPP5300C)

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Appellant

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And

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Mrs. Gnanathamilarasi, W/o Gnanaprakasam, No.8, Sriperumbadur, Manavalanagar, Vengathur, Chennai – 600 091 (PAN No. AROPG0835G)

¶47

¶48

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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The Authorised Officer, City Union Bank Ltd., No.149, TSR, Big Street, Kumbakonam, Thanjavur District, Tamilnadu-612 001. (IFSC Code No. CIUB000000).

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M/s. Axis Formulations, Rep by its Partner, Mr. N. Sitaram, No. 42, Govindaraj Street EPR Nagar, Ullagaram, Chennai – 600 091. (PAN No. ABEFA1068P)

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RA (SA) 18/2023

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Between

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Mr. Palanisamy, No.5 Ramasamy Koil Street, Kottaiyur, Keelapavoor Post, Alangulam Taluk, Tenkasi District - 627 806 (PAN No. CTHPP5300C)

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Appellant

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AND

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M/s. Axis Formulations, Rep by its Partner, Mr. N. Sitaram, No. 42, Govindaraj Street EPR Nagar, Ullagaram, Chennai – 600 091. (PAN No. ABEFA1068P)

¶57

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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2, Mr. N. Sitaram, S/o Mr. G.Narasimhan, No.42, Govindaraj Street, EPR Nagar, Ullagaram, Chennai – 600 091.

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The Authorised Officer, City Union Bank Ltd., Credit Recovery and Management Department, Administrative Office, No.24-B, Gandhi Nagar, Kumbakonam – 612 001. IFSC: CIUB000317

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…Respondents

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Counsel for Bank : M/s. R. Sivaraman Counsel for Borrower : M/s. Aiyar & Dolia Counsel for Guarantor : Mr. C. Seemon Counsel for Auction Purchaser : Mr. M. Theivakumar

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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COMMON ORDER

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These Appeals are preferred against Orders dated 18.03.2023 of DRT-III, Chennai, in SA 11/2022 and SA 14/2022.

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These four Appeals are disposed of by a common Order.

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Parties are hereinafter referred to as Borrowers,

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Guarantor, Bank and Auction Purchaser for better

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understanding and convenience.

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Brief facts leading to these Appeals are as follows:-

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Borrowers filed SA 11/2022 challenging Sale held on 09.12.2021. Guarantor filed SA 14/2022 challenging Sale Certificate dated 29.12.2021 issued in pursuance of Sale held on 09.12.2021.

¶73

¶74

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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Both Bank and Auction Purchaser resisted these

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Securitisation Applications.

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Tribunal below through impugned Orders dated 18.03.2023 allowed both Securitisation Applications; aggrieved by which, Bank preferred RA (SA) 15/2023 and Auction Purchaser preferred RA (SA) 18/2023 against Orders in SA 11/2022; Bank preferred RA (SA) 16/2023 and Auction Purchaser preferred RA (SA) 17/2023 against

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Orders in SA 14/2022.

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3. Heard arguments.

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Advocate for Bank submitted that Orders of Tribunal

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below is completely erroneous, illegal and unsustainable under law. He submitted that Tribunal below has not appreciated the pleadings of all parties and decided the Applications on an erroneous thinking. He submitted that Tribunal below held that Bank proceeded with excessive

¶82

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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execution of Schedule property when the property can be severable. He submitted, nowhere such ground is taken either by Borrowers or by Guarantor in their respective Applications, therefore, that finding is completely erroneous. He further submitted, Tribunal below erred in holding that non description of existing extent of square feet for bringing in more bidders is fatal, but, when the same extent is described in earlier Sale Notices, which were challenged and upheld as correct. He submitted that the property that was mortgaged alone put to Sale, and same description is given which is identifiable, and finding of the Tribunal below on this aspect is completely wrong. He submitted that Tribunal below erred in holding that vital details are not given in Sale Notice dated 19.11.2021 when said Notice is not challenged. He submitted that the Orders of Tribunal below in both the Applications are liable to be set aside.

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Advocate for Auction Purchaser submitted that he is a

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bonafide purchaser and paid the entire bid amount within

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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the time stipulated and possession is also delivered in December, 2021 itself, and both the Applications are filed after conclusion of Sale process. Advocate for Auction Purchaser, while adopting the arguments of Bank, submitted that, impugned Orders in both the Securitisation Applications are liable to be set aside.

¶90

On the other hand, Advocate for Borrowers and Guarantor, while supporting impugned Orders, submitted that the Auction Purchaser is related to Manager of Bank and Sale is a collusive sale. It is further submitted that when outstanding was only around Rs.50 Lakhs, the property was sold for Rs.1.60 Crore, for which, the Tribunal below rightly held it as excessive execution. It is submitted that Tribunal below is right in setting aside the Sale and the Sale Certificate, and there are no grounds to interfere with the Orders challenged in these Appeals.

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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Main and foremost objection on behalf of Bank and Auction Purchaser, i.e. Appellants herein, is that the issue decided by Tribunal below is neither pleaded nor established. Advocate for Bank mainly harped on the finding of excessive execution on the ground that the property that was mortgaged is sold, which is a site of 2500 sq. ft., with existing building. Now, it may be relevant and necessary to examine the grounds on which both Borrowers and Guarantor challenged the measures.

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Borrowers challenged the measures through

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Securitisation Application SA 11/2022 on the following grounds:-

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“a) The action of the 1st Respondent in selling the schedule mentioned properties on 09.12.2021 is totally illegal, malafide, without jurisdiction and the same is also not maintainable in law.

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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b) The Respondent erred in proceeding to sell the schedule mentioned properties on 09.12.2021 without giving an opportunity to the Applicant to pay the dues by extending the time due to pandemic and market condition.

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c) The Respondent erred in invoking the provisions of the SARFAESI Act when the account cannot be treated as Non performing asset.

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d) The Respondent erred in invoking the provisions of the SARFAESI Act as against the schedule mentioned properties when no valid mortgage was created over the same.

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e) The Respondent failed to consider the request of 1st Applicant for extending the time for payment of the dues, and hence the action of the Respondent in

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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proceeding to sell the schedule mentioned properties on 09.12.2021 is bad in law and liable to be set aside.

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f) The Respondent failed to follow Rule 8(6) of the Security Interest Enforcement rules and Section 13(8) of the SARFAESI Act, before issuing the Sale Notice for selling the schedule mentioned property. Before expiry of 30 days, the Respondent proceeded to issue publication of sale notice which is bad in law and liable to be set aside.

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g) The Respondent failed to mention the exact details about the amount due in the Sale Notice and hence the sale held on 09.12.2021 in respect of the schedule mentioned property is bad in law and liable to be set aside.

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h) The Respondent had not valued the schedule properties as per the provisions contained in the

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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SARFAESI Act and hence the auction sale of the schedule mentioned properties on 09.12.2021 is bad in law and liable to be set aside.

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i) The Respondent failed to give publication as well as affixture of the sale notice in the properties and hence the action of selling the schedule mentioned property on 09.12.2021 is bad in law and liable to be set aside.”

¶113

Guarantor challenged the Sale Certificate through Securitistion Application SA 14/2022 on the following grounds:

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a). The Auction sale notice dated 19.11.2021, and the sale deed vide No.5027/2021 dated 29.12.2021, is illegal, arbitrary and totally violative of principle of natural justice and also violate of rule of the 8 of the security Interest (Enforcement) Rules, 2002.

¶115

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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b). The respondent just to threaten the applicant is trying to misuse the power vested with them under the said act and suppressing original facts, the schedule of property is bringing for a distrust sale.

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d). The applicant strongly oppose the due amount found in the Auction sale notice dated 19.11.2021, and the sale deed vide No.5027 /2021 dated 29.12.2021, because the respondent bank did not properly give statement of accounts, which has been paid by the applicant, towards the above loan account and also there was a willful violation of rule, regulations and guidelines of Reserve Bank of India by imposing the unnecessary interest towards the applicants account.

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e) Without properly issued the Auction sale notice dated 19.11.2021, and the sale deed vide No.5027 / 2021

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dated 29.12.2021, as the respondent did not affix the auction sale notice on the outdoor or conspicuous place

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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of property which is violative of rule 8 of Security Interest (Enforcement) Rules, 2002.

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f). The above securitization actions are taken by this respondent as against the applicant and the same did not constitute as per the facility agreement and any other agreement. So it is clearly shows that the respondent company has no power to take action under securitization act against the applicant and the same has been violative of the said act and rule.

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g). The applicant further reserves his right of filing an additional grounds and documents at a later stage in case of necessity.

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h) The applicant states that all of a sudden, the 1st Respondent bank have raised a statement stating that the applicant has to pay a sum of Rs.53,85,341/(Rupees Fifty Three Lakhs Eighty Five Thousand Three

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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Hundred and Forty One only) and demanded the applicant to pay the same immediately.”

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Bank filed Counter disputing the contentions raised in both the Applications stating that the loan was classified as Non-Performing Asset (NPA) on 30.10.2017, and thereafter, issued Demand Notice under Section 13(2) of SARFAESI Act, 2002, on 25.07.2019, demanding the outstanding amount, which was received by Borrowers and Guarantor. Bank also contended that it issued Possession Notice under Section 13(4) of SARFAESI Act, 2002, on 12.04.2018 and symbolic possession was taken on 12.04.2018 and publicity is made in two leading newspapers as required under Rules. Bank also contended that OA 7/2020 is filed for recovery of Rs.71,74,131/-, which was due as on 12.11.2019. Bank contended that it issued Sale Notice dated 08.04.2021 fixing Sale on 29.04.2021, which was challenged in SA 144/2021. Bank contended that said SA was dismissed on 23.11.2021 giving liberty to Borrower to settle the matter. Bank

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RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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contended that Borrower also filed SA 75/2021, and in that SA, a conditional Order is passed on 29.04.2021, which is not complied with, and as per said conditional Order, Bank was directed not to confirm the Sale held on 09.12.2021, but, as the condition was not complied, after that date, the Sale is confirmed, and Sale Certificate is issued in favour of Auction Purchaser, on 29.12.2021. Bank also contended that it obtained proper Valuation Report as required under Rule 8(5) of Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as Rules, 2002), and copy of which is filed along with Counter. Bank contended that it has not committed any error in conducting the Sale, and sufficient opportunity was given to Borrowers to redeem the loan. Bank further contended that Borrowers and Guarantor filed various Applications, out of them, some are dismissed. Bank further contended that the measures taken by Bank are in consonance with the Act and Rules, and it is for the Borrowers and Guarantor to rebut them.

¶134

¶135

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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Almost similar grounds are taken in the Counter filed for Securitisation Application SA 14/2022 by adding one more contention that the alleged collusion between Bank and Auction Purchaser is incorrect and Guarantor has to prove the same.

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Auction Purchaser also filed a separate Counter disputing all the averments contending that he is a bonafide purchaser for valuable consideration and he took possession of the property and enjoying the same.

¶138

Above are the grounds on which Borrowers and Guarantor challenged the Sale and Sale Certificate respectively, and answer of the Bank disputing those allegations, which are referred to above.

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As per Section 17 of SARFAESI Act, 2002, any person aggrieved by any measures taken by Secured Creditor or his Authorised Officer, may make an Application to Tribunal

¶140

¶141

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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having jurisdiction, and on receipt of such Application, DRT

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shall consider whether any of the measures taken by Secured Creditor for enforcement of security are in accordance with the provisions of the Act and Rules made there under. If DRT, after examining the facts and circumstances of the case and evidence produced by parties, comes to the conclusion that the measures referred to in Section 13(4) of SARFAESI Act, 2002, are not in accordance with the provisions of the Act and Rules made there under, require to restore the management or possession, and pass the Order. So, in order to pass any Order under Section 17 of SARFAESI Act, 2002, it is the duty of Tribunal below to examine the contentions and rival contentions of both parties with reference to evidence, if any produced. Here, the main objection of Bank is that Tribunal below, without examining the contentions and rival contentions, decided the matter.

¶144

Now, it may be necessary to examine the impugned Orders in both the cases. First, I will examine the

¶145

¶146

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

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impugned Order in SA 11/2022. As seen from the Order,

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Learned Presiding Officer has not referred to any of the pleadings of both the parties. He only recorded the submissions of Advocates for parties. Para 1 to 4 of the impugned Order is about the submissions. It is well known principle that the submissions have to be in consonance with pleadings and evidence. Any length of submission, without pleadings and evidence, is of no use. But unfortunately, Tribunal below carried away with the submissions, without examining the material placed before it. In para 5 of the impugned Order, Learned Presiding Officer refers about the description of the property. This was not taken as a ground in Securitisation Application, which are already extracted above. When the property mortgaged is land of 2500 sq. ft. with building, when the same is reflected in the Sale Notice, I fail to understand, how it is in violation of Rule 8 of Rules, 2002. In the very same para, Tribunal below held that it is an excessive execution. According to Tribunal below, when the amount due is

¶149

¶150

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶151

around Rs.50 Lakhs, why a property worth more than it, was brought for Sale at Rs.1.60 Crores. Learned Presiding Officer recorded that the Bank has not answered this. If such plea is taken by Borrowers in its Securitisation Application, then, it is the duty of Bank to answer the same, and if it is not answered, then, adverse inference can be drawn. But, when no such plea is raised, finding fault with Bank, for not answering it, in my view, is nothing but, a perverse thinking. Tribunal below recorded that the property can be distinguishably severable. I fail to comprehend, how a building in a site can be distinguishably severable without effecting partition. I also fail to comprehend, how one floor can be sold without partitioning the site in which building is constructed. Tribunal below went on saying that by selling one floor, the loan can be discharged, which in my view, is not a correct thinking. As rightly pointed out by Advocate for Bank, Tribunal below allowed SA 11/2022 mainly focusing that the property is

¶152

¶153

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶154

distinguishably severable. Even in Securitisation

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Application SA 14/2022 also, the same findings are recorded.

¶156

Now, coming to Securitisation Application 14/2022, this SA itself is filed to set aside the Sale Certificate. As rightly pointed out by Advocate for Bank, the issue of Sale Certificate is not a measure, and it is only a consequence to the Sale conducted. Normally, only when Sale is set aside, the Sale Certificate issued would be set aside consequentially. In other words, if the primary relief is to set aside the Sale, then, consequential relief be to set aside the Sale Certificate issued pursuant to Sale. But, here, unfortunately, the Guarantor has not challenged the Sale, but she only prayed for setting aside the Sale Certificate, on the grounds specified in the Securitisation Application, which are already extracted above. As seen from this impugned Order also, Learned Presiding Officer recorded in para 3 that Guarantor contended that the property is divisible either floor-wise or property-wise and Authorised Officer need not put entire property for sale. But, as seen

¶157

¶158

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶159

from Securitisation Application, no such objection is raised by Guarantor. Further, when Sale is not challenged, this contention, even if pleaded, cannot be countenanced. As seen from record, Guarantor, even in the Written Submissions filed, nowhere it is contended that the property is divisible either floor-wise or property-wise and there is no need to put the entire property for Sale. When Sale Certificate alone is challenged, minimum expected from the Tribunal below is to first question the Guarantor as to how such relief can be granted under Section 17 of SARFAESI Act, 2002, when the issue of Sale Certificate is not a measure, and it is only a consequential measure after selling the property.

¶160

Section 17 of SARFAESI Act, 2002, empowers the Tribunal below to restore possession of secured asset when the measures under Section 13 (4) of SARFAESI Act, 2002, are not in accordance with the provisions of the Act and Rules, made there under. Admittedly, Section 13(4) Notice is

¶161

¶162

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶163

dated 12.04.2018 and Bank specifically pleaded that symbolic possession is taken on that day. This Notice is not challenged and even the correctness of that Notice cannot be questioned in SA 11/2022, because by the date of filing of SA, the time prescribed to challenge that Notice is expired. From a close reading of Section 17 of SARFAESI Act, 2002, when Tribunal below records a finding that the measures taken are not in accordance with the provisions of the Act and Rules made there under, then, it can order for restoration. But, here, unfortunately, Learned Presiding Officer even ordered for restoration of possession which is in the hands of Auction Purchaser. Even for arguments sake, it is accepted that the Sale conducted on 09.12.2021 is not in accordance with the provisions of Act and Rules, at best, that Sale has to be set aside, and in which case, Authorised Officer has to proceed with a fresh Sale, but, restoration of possession would not arise in a case where Sale is set aside. Even if the Tribunal feels as the Sale is set aside, property cannot be in the hand of Auction Purchaser, at best, the

¶164

¶165

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶166

Tribunal below can direct Auction Purchaser to restore back the possession to Authorised Officer, because Sale is set aside. But, ordering restoration of possession to Borrowers, in my view, it is nothing but exceeding of powers conferred under Section 17 of SARFAESI Act, 2002, and it is completely an illegal direction.

¶167

As rightly pointed out by Advocate for Bank, none of the grounds on which the Sale is challenged in SA 11/2022 are referred nor answered by Tribunal below. On the contrary, a new issue is taken up without there being any pleadings, and answered it in favour of Applicants in both SAs, and set aside the Sale, which, in my view, is excess exercise of power and jurisdiction conferred under SARFAESI Act, 2002.

¶168

For these reasons, I am of the considered view that both Orders in SA 11/2022 and SA 14/2022 cannot be sustained and they are liable to be set aside.

¶169

¶170

RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 & RA (SA) 18/2023

¶171

In view of my above discussions and observations, the Appeals RA (SA) 15/2023, RA (SA) 16/2023, RA (SA) 17/2023 and RA (SA) 18/2023 are allowed. Impugned Orders in Securitisation Applications SA 11/2022 and SA 14/2022 dated 18.03.2023 are set aside. Consequently, Securitisation Applications SA 11/2022 and SA 14/2022 are dismissed. Both parties shall bear their own costs. All pending IAs, if any, sand closed.

¶172

[Dictated to Athistamani, PS, transcribed by her, corrected, signed and pronounced by me in open court, this 24^th of November, 2023]

¶173

[ Justice S. Ravi Kumar] CHAIRPERSON

¶174

Palanisamy v. Gnanathamilarasi

Case brief

What is this about?

What did the court decide?

Palanisamy v. Gnanathamilarasi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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