Kolluru Ramesh vs CORPORATION BANK on 28 January 2019

ORDER

This petition is filed by the review applicant to review the Order dt: 01.11.2018 made in SA 378/2018.

2. The averments of the review application, it is submitted that review applicant herein have filled S.A.No.378/2018 challenging the possession notice dated 31.07.2018 and the same was published on 01.09.2018 as null and void and consequently set aside the sale notice published in Eenadu daily dated 01.10.2018 fixing the auction on 02.11.2018. After hearing the arguments this Tribunal by Order dated 01.11.2018 allowed the S.A. 378/2018 on the ground that no clear 30 days in conducting the sale and hence the sale notice dated 01.10.2018 was set aside. The Review applicant further submitted that the respondent bank herein had issued demand notice dated 02.07.2018 under section 13(2) of the Act calling the borrower to pay a sum of Rs.60,63,342/- within 60 days from the date of notice. It is submitted that the review applicant herein has 60 days time from the date of receipt of the demand notice dated 02.07.2018 that is the applicant has time up to 31.8.2018 to repay the dues to the respondent bank. It is submitted that possession notice admittedly issued on 31.08.2018 and symbolic possession was taken 31.08.2018 before the expiry of 60 days as mentioned in the demand notice dated 02.07.2018. The said possession notice dated 31.08.2018 was published on 01.09.2018 in Eenadu daily fixing the auction on 02.11.2018. Therefore the Review applicant has locus-standi to challenge possession notice dated 31.08.2018 and the same was published on 01.09.2018 as well as sale notice published on 01.10.2018 fixing the auction on 02.11.2018. The Review applicant submitted that while disposing the S.A.No.378/2018 the one vital point was not considered by this Tribunal and if the said issue was considered by this Tribunal definitely the S.A. ought to have been allowed on ground that the issuance of possession notice dated 31.08.2018 is premature and bad in law. The Review applicant further submitted that while passing the Order dated 01.11.2018 in S.A.No.378/2018 an error occurred while recording statement as well as the documents produced by the respondent bank. In page No.9 & 10 the Tribunal discussed about the issuance of demand notice dated 02.07.2018 and issuance of possession notice dated 31.08.2018, but this Tribunal has not given any findings on the above said issue when the applicant has specifically raised that particular issue, hence error occurred in the order dated 01.11.2018 made in S.A.No.378/2018. However in the present case the respondent bank issued demand notice dated 02.07.2018 and same was served on 02.07.2018 on the applicant herein and the time of 60 days expired only on 31.8.2018 (60 days). The respondent bank has to take symbolic possession only after the expiry of 60 days from the date of receipt of the demand notice dated 02.07.2018 and the same was served on 02.07.2018. In this particular case the respondent bank before the expiry of 60 days had issued the possession notice dated 31.03.2018 and the same was published on 01.09.2018 and this Tribunal thought that possession was taken on 01.09.2018 and same was published on 01.9.2018. Hence there is an apparent error in the order dated 01.11.2018 made in S.A.No.378/2018. In these circumstances, the Review Applicant filed the present Review Petition to review the Order dt: 01.11.2018.

3. Written arguments has been filed by the review applicant which is on the same lines as that of the averments made in review application and further submitted :-

Date of issuance of demand notice = 02.07.2018

Service of demand notice 02.07.2018 (denied by applicant)

Publication of possession notice dt: 01.09.2018

Clear 60 days expires on 31.08.2018.

Hence the respondent bank has issued the possession notice dt: 31.08.2018 pre-maturely and therefore prayed to consider the review application and thereby redeliver the possession of the property.

4. Counter has been filed by the respondent bank denying the averments made by review applicant and further submitted that review applicant herein has filed this RA (Review Application) not legally maintainable as the Tribunal has pronounced the final orders dated 01.11.2018 in the main SA No. 378/2018 on the prayers sought by the petitioner herein and applicant in the main SA. As such there is no error-apparent crept in the Order. Respondent bank further submitted that applicant herein filed the main SA on the ground that there was no 60 days span between the demand notice dated 02.07.2018 and possession notice allegedly dated 31.07.2018. On this ground the applicant in the main SA prayed the Tribunal to declare the possession notice allegedly dated 31.07.2018 as null and void. It is submitted that the gist of the prayer is made in the main SA basing on the possession notice allegedly dated 31.07.2018. It is submitted that the this Tribunal after providing opportunity to both sides to file their respective counter/reply has framed the point for consideration as to whether the applicant is entitled for declaring the demand notice dated 02.07.2018 and possession notice dated 31.07.2018 as null and void and consequently setting aside the sale notice published on 01.10.2018 as prayed for or not and this Tribunal has provided ample opportunity to both sides. During the course of hearing it is settled that there is no possession dated 31.07.2018 and it is the possession notice dated 31.08.2018 and accordingly this Tribunal decided the matter. Respondent bank further submitted that this Tribunal has given ample opportunities/time to the applicants and respondent and disposed of the SA on merits. Respondent bank further submitted that the aggrieved parties on the Orders of this Tribunal u/s 17 of SARFAESI Act may prefer an appeal before the DRAT. As such the

Orders u/s 17 are not of reviewable and hence it is submitted that the Orders dated 01.11.2018 are appealable in nature to the DRAT. It is submitted that the present Review Application is not maintainable as there is no ambiguity in the Order and therefore prayed to dismiss the review application.

5. Written arguments has been filed by the respondent bank and further submitted that :-

- • The review application filed by the applicant has no merits and is liable to be dismissed.

- • The orders in SA No. 378/2018 were pronounced on 01.11.2018 on merits and this Tribunal in its reasoned orders categorically held that the possession notice mentioned as 31.07.2018 instead 31.08.2018 is a clerical mistake and Tribunal came to the conclusion depending on the postal tract reports filed by the respondent bank.

- • The finding on the point is on merits. The petitioner in the RA intends to seek re-consideration of the point in the present review, which is not legally permissible. The course of action is open for the applicant herein is to file an appeal before the Honorable DRAT at Kolkatta.

- • The Tribunal while considering all the points had set-aside the intending sale notice dated 01.10.2018. The respondent bank in due obedience to the said orders have issued a fresh intending sale notice under Rule 8(6) on 12.11.2018. Therefore the Tribunal Orders in the SA dated 01.11.2018 have been duly complied with and attained finality.

- • The review is not maintainable per se as there are no errors apparent on the face of the record to invoke the review. The review petitioner under the guise of review prays for re-delivery of the possession which is not correct.

In view of the above position, the respondent bank prayed to dismiss the review application.

1. 6. The point for consideration is whether the review applicant is entitled for to reviewing the Order dt: 01.11.2018 made in SA 378/2018 as prayed for or not.

2. 7. Heard both sides. Review applicant filed this review application to review the Order dt: 01.11.2018 made in SA 378/2018 by this Tribunal. But, there is no specific provision in the SARFAESI Act, 2002 for review of Orders passed by Tribunal while proceeding under SARFAESI Act, 2002. In SA 378/2018, applicant prayed to declare the u/s 13(2) demand notice dated 02.07.2018 and possession notice dt: 31.07.2018 as null and void and consequently set aside the sale notice published in Eenadu daily dt: 01.10.2018. This Tribunal after consideration of material facts placed before this Tribunal, categorically allowed the SA 378/2018 by setting aside the e-auction sale notice dt: 01.10.2018 issued u/r 8(6) and consequential e-auction notice dt: 01.10.2018 issued u/r 9(1) thereof, published in the newspapers on 01.10.2018. Therefore, it is crystal clear that this Tribunal impliedly held that the u/s 13(2) & 13(4) notices issued by respondent bank are valid under law. In this review application, review applicant contended that the review applicant has got 60 days time from the date of receipt of the demand notice dated 02.07.2018 i.e. the applicant has time up to 31.08.2018 to repay the dues to the respondent bank. Review applicant further contended that possession notice was issued on 31.08.2018 and symbolic possession was taken 31.08.2018 before the expiry of 60 days as mentioned in the demand notice dated 02.07.2018. Review applicant further contended that the possession notice dated 31.08.2018 was published on 01.09.2018 in Eenadu daily fixing the auction on 02.11.2018. Therefore the Review applicant has got locus-standi to challenge possession notice dated 31.08.2018 and the same was published on 01.09.2018 as well as sale notice published on 01.10.2018 fixing the auction on 02.11.2018. The Review applicant further submitted that this Tribunal ought to have allowed the S.A.No.378/2018 on the ground that the issuance of possession notice dated 31.08.2018 is premature and bad in law. The Review applicant further submitted that while passing the Order dated 01.11.2018 in S.A.No.378/2018 an error occurred while recording statement as well as the documents produced by the respondent bank and at page No.9 & 10 of the Order, the Tribunal discussed about the issuance of demand notice dated 02.07.2018 and issuance of possession notice dated 31.08.2018, but this Tribunal has not given any findings on the above said issue when the applicant has specifically raised that particular issue, hence error occurred in the order dated 01.11.2018 made in S.A.No.378/2018. But, when SA 378/2018 was allowed by setting

aside the e-auction sale notice dt: 01.10.2018 issued u/r 8(6) and consequential e-auction notice dt: 01.10.2018 issued u/r 9(1) thereof, published in the newspapers on 01.10.2018, it is crystal clearly implied that the u/s 13(2) demand notice & u/s 13(4) possession notice is valid under law. Therefore, it cannot be said that this Tribunal has not given any findings with respect to u/s 13(4) possession notice. In the written arguments filed by the applicant, applicant categorically submitted that while disposing SA 378/2018, vital point was not considered by this Tribunal i.e. with respect to issuance of possession notice dt: 31.08.2018. But, this Tribunal in SA No.378/2018 vide Orders dt: 01.11.2018 categorically discussed the above matter and on perusal of documents filed by applicant, the u/s 13(4) possession notice dt: 31.08.2018 was sent to newspapers on 31.08.2018 and the said possession notice got published on 01.09.2018

8. Therefore, it is crystal clearly implied that possession notice was issued in accordance with law. If there is any objection for applicant with respect to the Orders of this Tribunal on merits after hearing arguments of both parties and on perusal of documents filed by both parties only the SA was dismissed on merits and applicant can prefer appeal against this Tribunal's Order before appropriate forum and cannot prefer this review application back to this Tribunal against this Tribunal's Order. Therefore, review application filed by applicant is not maintainable and by filing this review application, applicant intends to reopen the Orders passed by this Tribunal in SA 378/2018 which is not permissible under law.

9. Therefore, considering the above in view, I am of considered opinion that that this Review Application RA No.5/2018 in SA No. 378/2018 filed by the applicant is devoid of merits and deserves to be dismissed.

In the result this review application is dismissed however without costs.

Let the copy of the order be made available to the parties as per rules.

[Dictated to PS, transcribed by him and corrected and pronounced by me in the open court on this 28^th day of January, 2019]

PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM