Dismissed

A.Shajahan v. The Branch Manager

Madras HC15 Feb 2017WP/3665/2017

Case brief

AI extract

What is this about?

A writ petition challenging a recovery certificate and sale proclamation under the DRT and Income Tax Acts was dismissed as not maintainable. The Court held that the petitioner failed to exhaust the statutory alternative remedy of appeal before the Tribunal and filed the petition after an unreasonable delay of nearly three years.

What did the court decide?

The writ petition was held not to be maintainable and was dismissed. No costs awarded. Connected miscellaneous petitions closed.

A.Shajahan Vs The Branch Manager — Banking and Recovery | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 15/2/2017

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The Honourable Mr.Justice S.Manikumar
and
The Honourable Mr.Justice M.Govindaraj
Writ Petition No.3665 of 2017
A. Shajahan ... Petitioner
Vs
1. The Branch Manager
City Union Bank
Karaikal Branch
No.159-160 Thirunallar Road
Karaikal 609 602.
2. The Debts Recovery Tribunal – III
5 th Floor, Deva Towers
Anna Salai
Chennai.
3. The Recovery Officer
Debts Recovery Tribunal – III
5 th Floor, Deva Towers
Anna Salai
Chennai.
4. N. Mohammed Siddique ... Respondents

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Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records pertaining to the final order passed in O.A.No.234 of 2012 dated 17/1/2014 now re-numbered as O.A.No.16 of 2015 in DRT – III, on the file of the second respondent and the consequential Recovery Certificate issued by the third respondent in D.R.C.No.77 of 2014 which was renumbered as DRC No.199 of 2014, dated 14/7/2014 and the Sale Proclamation issued by the third respondent on 24/1/2017 vide DRC No.199 of 2014 (Old DRC No.77/14) and quash the same as illegal.

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https://hcservices.ecourts.gov.in/hcservices/

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For petitioner ... Mr.R.Sreedhar

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O R D E R

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(Order of the Court was made by S.Manikumar,J)

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One of the borrowers, who suffered an order in O.A.No.234 of 2012, dated 17/1/2014, and a consequential Recovery Certificate, issued by the Debts Recovery Tribunal – III, in D.R.C.No.77 of 2014, which was re-numbered as D.R.C.No.199 of 2014, dated 14/7/2014 and visited with a further demand notice, dated 16/7/2014 and sale proclamation, dated 24/1/2017, has challenged the above in the instant writ petition, on the sole ground that Mr.N.Mohammed Siddique/fourth defendant in the said O.A., though alive has been stated as the deceased.

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Supporting the prayer sought for, Mr.R.Sreedhar, learned counsel for the petitioner submitted that as there is an error apparent on the face of the record and therefore, a remedy under Article 226 of the Constitution of India is available for the petitioner.

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Heard the learned counsel for the petitioner.

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Order in O.A.234 of 2012 has been passed, on 17/1/2014. On the application filed by the Bank, under Section 19 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 and the said order is appealable under Section 20 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993.

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Section 20 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 reads as follows:-

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"Appeal to the Appellate Tribunal - (1) Save as provided in sub-Section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.

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(2). No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.

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(3) Every appeal under sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the

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order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:

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Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

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(4). On receipt of an appeal under subSection (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

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(5). The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.

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(6). The appeal filed before the Appellate Tribunal under sub-Section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.

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Section 21 of the said Act reads as follows:-

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"Deposit of amount of debt due, on filing appeal - Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him as determined by the Tribunal under Section 19:

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Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to the deposited under this Section."

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Based on the order made in O.A.No.234 of 2012, dated 17/1/2014, the Presiding Officer, Debts Recovery Tribunal – I, Chennai has issued a Recovery Certificate in D.R.C.No.77 of 2014 in O.A.No.234 of 2012. Recovery Officer, Debts Recovery Tribunal - I, Chennai has issued a demand notice, in D.R.C.No.77/2014/DN dated 16/7/2014, under Rule 2 r/w. Section 16 of the Second Schedule to the Income Tax Act, 1961. On the failure to make payment, the Recovery Officer, Debts Recovery Tribunal - III, Chennai, has issued a notice, dated 24/1/2017, for proclamation of sale under Rules 38, 52 (2) of the second schedule to the Income Tax Act, 1961, r/w. The Recovery of Debts Due to Banks & Financial Institutions Act, 1993.

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The Hon'ble Supreme Court has held that when there is an efficacious and alternate remedy, under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act or Securitisation And Reconstructions of Financial Assets Act, 2002, as the case may be, writ petition is not maintainable. We deem it fit to consider the following decisions.

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(i) In Precision Fastenings v. State Bank of Mysore, reported in 2010(2) LW 86, this Court held as follows:

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"This Court has repeatedly held in a number of decisions right from the decision in Division Electronics Ltd. v. Indian Bank (DB) Markandey Katju, C.J., (2005 (3) C.T.C., 513), that the remedy of the aggrieved party as against the notice issued under Section 13(4) of SARFAESI Act is to approach the appropriate Tribunal and the writ petition is not maintainable. The same position has been succinctly stated by the Hon'ble the Supreme Court in Transcore v. Union Of India (2006 (5) C.T.C. 753) in paragraph No. 26 wherein the Supreme Court has held as under:—

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“The Tribunal under the DRT Act is also the Tribunal under the NPA Act. Under Section 19 of the DRT Act read with Rule 7 of the Debts Recovery Tribunal (Procedure) Rules, 1993 (1993 Rules), the applicant bank or FI has to pay fees for filing such application to DRT under the DRT Act and, similarly, a borrower, aggrieved by an action under Section 13(4) of NPA Act was entitled to prefer an Application to the DRT under Section 17 of NPA.” (Emphasis added) "

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(ii) In Union Bank of India v. Satyawati Tondon, reported in 2010 (5) LW 193 (SC), the Hon'ble Apex Court has held as

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follows:

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"16. The facts of the present case show that even after receipt of notices under Section 13(2) and (4) and order passed under Section 14 of the SARFAESI Act, respondent Nos. 1 and 2 did not bother to pay the outstanding dues. Only a paltry amount of Rs. 50,000/- was paid by respondent No. 1 on 29.10.2007. She did give an undertaking to pay the balance amount in installments but did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted on any legally permissible ground and, in our view, the Division Bench of the High Court committed serious error by entertaining the writ petition of respondent No. 1.

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There is another reason why the impugned order should be set aside. If respondent No. 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression ‘any person’ used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive

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https://hcservices.ecourts.gov.in/hcservices/

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procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

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While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for re-dressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out

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in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1=1999-2-L.W. 200 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.

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It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.

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Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act.

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In the result, the appeal is allowed and the impugned order is set aside. Since the respondent has not appeared to contest the appeal, the costs are made easy."

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(iii) In Saraspathy Sundararaj v. Authorised Officer and Assistant General Manager, State Bank of India, reported in (2010) 5 LW 560, the Court held as follows:

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"The petitioner has filed this writ petition praying for a Writ of Certiorarified Mandamus calling for the records relating to the possession notice dated 16.09.2004 issued by the respondent under the SARFAESI Act and consequently direct the respondent to effect the settlement in accordance with the SBI OTS-SME 2010 Scheme as contained in its letter dated 18.03.2010 and unconditionally restore physical possession of the six rooms taken physical possession by it at No. 29, Sarojini Street, T. Nagar, Chennai - 17 with such damages.

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... When a specific forum has been created which enables the borrower to challenge the action of the financial institution by filing necessary petition under Section 17, the petitioner is not entitled to invoke the writ jurisdiction of this Court. What could not be achieved by the petitioner by filing a petition before the appropriate Forum, which is at present barred by period of limitation, could not be permitted to be achieved by extending the jurisdiction conferred to this Court under Article 226 of The Constitution of India. Above all, since the petitioner has violated the terms and conditions of the loan by transferring the property in favour of her son, this Court is not inclined to entertain the petition.

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In this connection, we are fortified by the decision of the Honourable Supreme Court reported in (United Bank of India v. Satyawati Tondon and others) III (2010) BC 495 (SC) = 20105-L.W. 193, wherein in para Nos. 17 and 18, it was held thus:—

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“17. …Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under

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https://hcservices.ecourts.gov.in/hcservices/

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Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

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While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2

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https://hcservices.ecourts.gov.in/hcservices/

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SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order, (underlining added).

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In the light of the above decision of the Honourable Supreme Court, the writ petition filed by the petitioner seeking to set aside the possession notice issued to her long back is legally not sustainable. We are of the considered view that this petition has been filed only to drag on the proceedings and to evade repayment of the loan. That be so, the petitioner has no legal right to compel the bank to accept the one time settlement offer made by her.

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The present case is identical in nature and it is covered by the judgment of the Supreme Court mentioned supra. In this case, the petitioner has violated the condition of mortgage by transferring the secured asset in favour of her son and therefore, as per clause 1.7 of the OTS Scheme offered by the bank, the petitioner has to be excluded from extending the benefits of the scheme which was rightly done by the bank. In any event, without exhausting the alternative remedy, the relief sought for by the petitioner by invoking the discretionary remedy under Article 226 of The Constitution of India cannot be granted."

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iv) In Simon's Foot Wear Pvt. Ltd. v. Indian Bank, reported in (2015) 2 MLJ 166, a Hon'ble Division Bench of this court held as follows:

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“9.As against the confirmation of sale and issuance of the sale certificate, the writ petitioners did have their remedy of filing an appeal under Section 18 of the SARFAESI Act before the Debts Recovery Appellate Tribunal. The appeal remedy is an effective and efficacious remedy. When such an effective and efficacious remedy is available, this court will decline exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. ....

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10.So far as the challenge made to the order dated 24.06.2013 is concerned, since an appeal remedy is available the writ petitioners ought to have exhausted the appeal remedy before approaching this Court with this writ petition. .......”

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Contention that one of the defendants has been shown as the deceased, while alive and therefore, writ is the only remedy, cannot be countenanced. The said ground is also available, if any statutory appeal is filed, but the writ petitioner has not chosen to do so. On the facts and circumstances, it could be deduced that after nearly three years, instant writ petition has been filed.

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In the light of the above decisions and discussions, we are of the view that the writ petitioner, who has failed to avail the alternate and efficacious remedy, has approached this Court, after three years, from the date of order made in O.A.No.234 of 2012, dated 17/1/2014. Secondly, inspite of the demand, under Rule 2 r/w. Rule 16 of the Income Tax Act, 1961, dated 16/7/2014, the writ petitioner has not paid a sum of Rs.53,83,643,14, within fifteen days, from the date of receipt of the notice. After nearly 2½ years, proclamation of sale, under Rules 38, 52 (2) of the second schedule, to the Income Tax, 1961, r/w. Recovery of Debts Due to Banks & Financial Institutions Act, 1993, has been issued. Proclamation can also be challenged.

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In the light of the decisions and discussion, we are of the view that the writ petition is not maintainable and accordingly, the same is dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.

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-s/dAssistant Registrar(CSVI) True Copy

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Sub-Assistant Registrar

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mvs To

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