IDBI BANK vs M S BHAGWATI COLD STORAGE on 28 November 2024

**JUDGMENT**

1. 1. This Review Application has been filed by the R. Applicant Bank, challenging the order dated 14.05.2015 passed by DRT, Lucknow in TSA No. 425 of 2018 vide which the application for condonation of delay in filing the SA by the S. Applicant was allowed and the DRT has also made certain observations with regard to process adopted by the respondent while initiating SARFAESI actions against the borrowers/guarantors/mortgagors.

2. 2. Reply/objection has already been filed by the defendants/borrowers.

3. 3. The Ld. Counsel for the Review Applicant Bank submitted that the applicant Bank has followed the proper procedures as laid down under the

SARFAESI Act, 2002 and Rules made thereunder and there was no lapses on the part of the applicant Bank. It is further submitted that as per Rule 8 of the Security Interest (Enforcement) Rules, 2002, if notices are not served then it should be served through newspaper and in the instant case as per the DRT, the possession notice was published in daily newspaper namely Times of India (English) and Hindustan (Hindi) on 20.07.2014 but while passing the order dated 14.05.2015, the Hon'ble Tribunal has not considered the procedures as laid down under Rule 8 of the Security Interest (Enforcement) Rules, 2002 in right prospective and has wrongly observed that the defendant has not enclosed any postal receipt or any receiving of the possession notice sent to the S. Applicant. It is submitted that the applicant Bank has taken possession of the property in question on 14.07.2014 and thereafter, took actual possession on 23.01.2015.

1. 4. Ld. Counsel for the Review Applicant Bank further submitted that while condoning the delay, the Tribunal has only observed regarding the postal receipts or servicing of possession notice and not considered the other formalities complied with by the defendant as per the Rules. It is submitted that the review applicant Bank has also affixed the said symbolic possession notice over the secured assets in the presence of the security guards of the S. Applicant, who has refused to accept the same and the same was also published.

2. 5. It is further submitted by the Ld. Counsel for the review applicant Bank that the S. Applicant has not complied with the order dated 10.12.2014 passed by the Tribunal on the basis of the statement made by the S. Applicant regarding liquidating the account. It is submitted that since the order dated 10.12.2014 had not been complied by the S. Applicant, therefore, the review application bank has sold the secured assets in e-auction on 10.03.2015 and has also issued sale certificate dated 25.03.2015 and in furtherance thereof the review applicant Bank has also executed Conveyance Deed in favour of the Auction Purchaser on 01.06.2015 which is duly registered with Sub-Registrar, Agra, Uttar Pradesh.

1. 6. On the contrary, the Ld. Counsel for the S. Applicant/respondent in this Review Application submitted that the review applicant Bank has not served the possession notice upon the S. Applicants and thereby, it has violated the Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002. It is submitted that the possession notice was received by the applicant when she visited the bank on 01.10.2014. It is submitted that vide order dated 14.05.2015, the DRT, Lucknow has observed that the respondent Bank has not enclosed any postal receipt or any receiving of possession notice sent to the applicant. It is further submitted that once the Tribunal has already observed vide order dated 14.05.2015 that the respondent Bank has not proved the compliance of Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002, the same cannot be changed by this Tribunal as it will amount to appellate jurisdiction. It is further submitted that against this observation, the bank has moved this review application but the Bank has not filed any document showing compliance of Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002 in the appeal. It is further submitted that in paragraph No. "e", the Bank has stated that if the notices are not served then it should be published. In this regard it is submitted that mere publication cannot be said to be compliance of Rule 8 (1) of the Rules, 2002. It is further submitted that in paragraph "g" and "m" of the review application, the bank has admitted that it has published and affixed the notices but it has not served the same to the S. Applicant. It is further submitted that in paragraph 'n" of the review application, the bank is trying to misguide this Tribunal by stating that the S. Applicant refused to receive the notice. It is further submitted that the review applicant bank has never served any notice under section 8 (1) of the Rules, 2002 and the S. Applicant received the notice when she visited the Bank after three months from the date of issuance of the same and this fact has also been mentioned in paragraph 10 of the SA filed by the S. Applicant. It is submitted that in reply to the paragraph 10 of the SA, the review applicant Bank has stated that the content of paragraph No. 10 of the affidavit are wrong and misconceived and are denied. Possession Notice dated 14.07.2014 was affixed on main gate of the property and was also published on 20.07.2014 in two leading newspapers but the bank has not stated that as to why the symbolic possession notice was not delivered to the applicant according to Rule 8 (1) of the Rules, 2002. It is submitted that it is the bank who is to prove that as to how Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002 was not complied with because the burden of prove lies upon the bank. It is submitted that the bank has not stated anywhere that why the notices were not sent through registered post.

1. 7. Ld. Counsel for the S. Applicant/defendant/respondent in this Review Application has further submitted that the conduct of the bank is so malicious that the Bank in the said paragraph 5 of the written arguments filed in TSA 425 of 2018 has annexed the Xerox copy of the possession notice as RA-01 which was filed by the S. Applicant along with SA at page No. 19 of the TSA. The Bank has annexed this copy so that the court may get confused and treat the sign of the applicant as sign while receiving the symbolic possession. However, the said signature was made by the S. Applicant at the time of filing of the SA. It is further submitted that in paragraph "f" of the review application, the Bank has stated that it has taken physical possession of the property in question on 23.01.2015 but the notice annexed by the Bank as Annexure no. 1 is dated 03.12.2014 in which the date of possession was scheduled on 10.12.2014 and the Bank has also not filed any order passed under section 14 of the SARFAESI Act, 2002.

1. 8. Considered the rival contentions advanced on behalf of respective parties and perused the records.

2. 9. The Tribunal has to examine as to whether the application for condonation of delay filed by the S. Applicant along with the SA, which is allowed by the Tribunal vide order dated 14.05.2015 together with the observations made in the said order, are in accordance with the Act & Rules or not.

3. 10. On perusal of record, it appears that vide order dated 14.05.2015, the DRT, Lucknow has condoned the delay in filing the present SA (T) and while condoning the delay, the DRT, Lucknow has observed that according to the respondent Bank, after taking symbolic possession, the possession notice dated 14.07.2014 was published in the newspapers on 20.07.2014. It is further observed that the respondent Bank has not enclosed any postal receipt or any receiving of possession notice sent to the applicant.

1. 11. In this regard, this is to be seen that in place of filing proof of service of symbolic possession notice dated 14.07.2014 to the S. Applicant, the respondent Bank has preferred Review Application bearing RA (T) No. 102 of 2018 against the order order dated 14.05.2015, passed by the DRT, Lucknow on various grounds including the ground (b) Because the Hon'ble Tribunal has observed that the defendant has not enclosed any postal receipt or any receiving of the possession notice sent to the applicant (d) Because the Hon'ble Tribunal has considered that the possession notice was published in daily Newspaper namely Times of India (English) and Hindustan (Hindi) on 20.07.2014 (e) Because it is a settled law that if notices are not served then it should be served through newspaper publication.

2. 12. So far as the submission of the Ld. Counsel for the review applicant Bank that if the notices are not served then it should be published, is concerned, in this regard, it is to be seen that mere publication cannot be said to be compliance of Rule 8 (1) of the Rules, 2002 as the intent of the legislature was to ensure that the notices are properly served, affixed and published in the newspapers and all the process are separate and mandatory for any secured creditor. It appears that the review applicant bank has never served any notice under Rule 8 (1) of the Rules, 2002 as no proof of service has been brought on record.

3. 13. On perusal of record, it further appears that the fact that the S. Applicant had received the notice when she visited the Bank after three months from the date of issuance has also been mentioned in paragraph 10 of the SA filed by the S. Applicant in reply to which, the review applicant Bank has stated that the content of paragraph No. 10 of the affidavit are wrong and misconceived and are denied. Possession Notice dated 14.07.2014 was affixed on main gate of the property and was also published on 20.07.2014 in two leading newspapers but the bank has not stated that as to why the symbolic possession notice was not delivered to the applicant according to Rule 8 (1) of the Rules, 2002. It is the bank who is to prove that as to how Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002 was not complied with because the burden of prove lies upon the bank but the bank has not stated anywhere that why the notices were not sent through registered post and also failed to bring on record the proof of service of the symbolic possession notice and against this observation by the Tribunal, the bank has moved this review application but the Bank has not filed any document showing compliance of Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002.

1. 14. In view of the above facts, circumstances and SARFAESI Act & Rules the respondent Bank is failed to point out any irregularity/illegality in the order dated 14.05.2015 of DRT, Lucknow and in my considered view, the DRT has rightly condoned the delay in filing the SA, therefore, the Review Application filed by the review applicant Bank deserves dismissal.

**ORDER**

The Review Application filed by the review applicant Bank is, hereby, dismissed.

Interim I.A./interim order, if any, stands disposed off/vacated.

A copy of this order be given to the parties.

Judgment signed, sealed, dated and pronounced in the open court on this 28^th Day of November, 2024.

Dictated & Corrected by me.

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

VK