Important citation and bank’s interest
Important citation and bank’s
interest:
|
Sr. No. |
Subject Title Relating to |
Citation |
Remarks |
|
1. |
Legal
issues can be raised at any stage at any point of time |
Supreme Court of India: National
Thermal Power Co. Ltd. vs Commissioner Of Income Tax on 4 December, 1996 Equivalent citations: 1998 (99) ELT 200 SC,
1998 229 ITR 383 SC, (1997) 7 SCC 489 |
3. On learning
about this legal position, the assessee sought to include the above three
grounds in its grounds of appeal. The Tribunal has declined to entertain
these additional grounds. 4. Where on the facts found by
the authorities below a question of law arises (though not raised before the
authorities) which bears on the tax liability of the assessee, whether the
Tribunal has jurisdiction to examine the same ? 5. We fail to see why the
Tribunal should be prevented from considering questions of law arising in
assessment proceedings although not raised earlier. 8. the Tribunal has
jurisdiction to examine a question of law which arises from the facts as
found by the authorities below and having a bearing on the tax liability of
the assessee |
|
2. |
District
Magistrate’s satisfaction can be gathered by reading his order. |
Madhya Pradesh High Court: Manish
Makhija vs Central Bank Of India on 15 February, 2018 |
12. After
considering the judgment of Nobal Kumar (supra), it was held that the
Magistrate at the stage of exercising jurisdiction under Section
14 of the Act was not specifically required to record any satisfaction
on record regarding existence of any particular fact. Thus, in view of this
judgment, it is clear that satisfaction of District Magistrate can be
gathered by reading his order. Thus, this point raised by the petitioner must
fail. |
|
3. |
Additional
District Magistrate and District Magistrate can exercise same powers under
Section 14 of SARFAESI Act 2002f |
Supreme Court of India: |
14. We
hold that the powers under Section
14 of the SARFAESI Act can be exercised by the concerned Additional
Chief Metropolitan Magistrates of the area having jurisdiction and also by
the Additional District Magistrates, who otherwise are exercising the powers
at par with the concerned District Magistrates either by delegation and/or
special order. The present appeal is accordingly dismissed. No costs. |
|
4. |
Applicant
has deliberately with malafide intention and ulterior motive had mislead the
Hon’ble Tribunal and played fraud |
Delhi High Court Swarn
Singh V/s Surinder Kumar & Ors. On 22 December 2010 |
23. The
issue is that the grant of specific relief is discretionary relief and in order
to get this discretion, the plaintiff must show that his conduct has been
fair, reasonable and above board. Normally in legal language it is called
that the plaintiff must come to Court with clean hands. It is in this context
that the judgment of Naidu's case becomes important for deciding the present
case |
|
5. |
Applicant
has deliberately with malafide intention and ulterior motive had mislead the
Hon’ble Tribunal and played fraud |
Supreme Court of India Mohammedia
Coop. Building ... vs Lakshmi S. Coop. Building Society ... on 6 May, 2008 |
43. There
cannot be any doubt whatsoever that the discretion has to be exercised
judiciously and not arbitrarily. But for the said purpose, the conduct of the
plaintiff plays an important role. The Courts ordinarily would not grant any
relief in favour of the person who approaches the court with a pair of dirty
hands. |
|
6. |
Applicant
has deliberately with malafide intention and ulterior motive had mislead the
Hon’ble Tribunal and played fraud |
Supreme Court of India Dalip
Singh vs State Of U.P. & Ors on 3 December, 2009 |
19. appellant
did not approach the High Court with clean hands inasmuch as, by making a
misleading statement in paragraph 3 of the writ petition, an impression was
created that the tenure-holder did not know of the proceedings initiated by
the Prescribed Authority. By making the said statement, the appellant
succeeded in persuading the High Court to pass an interim order which
resulted in frustrating the efforts made by the concerned authority to
distribute the surplus land among landless persons. Even before this Court, a
patently false statement has been made in the rejoinder affidavit on the
issue of receipt of notice dated 29.11.1975 22. We
would have saddled the appellants with exemplary costs but, keeping in view
the fact that possession of the surplus land was taken in 2002 and the same
has been distributed among landless poor persons, we refrain from doing so |
|
7. |
Applicant
has deliberately with malafide intention and ulterior motive had mislead the
Hon’ble Tribunal and played fraud |
Supreme Court of India |
8. A
fraud is an act of deliberate deception with the design of securing something
by taking unfair advantage of another. It is a deception in order to gain by
another's loss. It is a cheating intended to get an advantage |
|
8. |
Remedy of
Section 17 is available when in whatever possession is taken |
Supreme Court of India Standard
Chartered Bank V/s V.V. Noble Kumar |
27. We
are of the opinion that by whatever manner the secured creditor obtains
possession either through the process contemplated under Section 14 or
without resorting to such a process obtaining of the possession of a secured
asset is always a measure against which a remedy under Section 17 is
available. |
|
9. |
DRT
cannot only set aside Bank’s action under SARFAESI Act under Section 13(4)
etc. but can also grant even “status quo ante” DRT Can
look into the matter relating to Section 13(2), Rule 8(1) and 8(2) even at
the stage of sale or the execution of sale deed |
Supreme Court of India Authorised
Officer Indian Overseas Bank Vs. Ashok Saw Mill 2009(3) Banker’s Journal 241. |
24. We
are unable to agree with or accept the submissions made on behalf of the
appellants that the DRT had no jurisdiction to interfere with the action
taken by the secured creditor after the stage contemplated under Section
13(4) of the Act. On the other hand, the law is otherwise and it
contemplates that the action taken by a secured creditor in terms of Section
13(4) is open to scrutiny and cannot only be set aside but even the
status quo ante can be restored by the DRT. |
|
10. |
Suit
barred by limitation can be dismissed at any stage |
Kerala High Court Craft
Centre And Ors. vs The Koncherry Coir Factories, ... on 7 July, 1990 |
4. It
is the duty of the Court to dismiss a suit which on the face of it is barred
by time even at the appellate stage despite the fact that the issue was not
at all raised. |
|
11. |
So long
as mortgage-deed does not prohibit mortgager from making lease of mortgaged
property – And so long as lease satisfies requirement of Sec. 65(2) – A lease
made by a borrower as a mortgagor will not only be valid – But is also
binding on secured creditor as mortgagee. Lessee –
Right to remain in possession during period of lease A lease
of secured asset made by borrower after he receives notice under Section
13(2) of the SARFAESI Act from secured creditor intending to enforce that
secured asset will not be valid lease. Lessee
has a right to enjoy property – This right cannot be taken away without
authority of law as provided in Act 300-A of the constitution. |
Supreme Court Of India Harshad
Govardhan Sondagar Vs. I.A.R.C. Ltd. & Others Decided on 3 April 2014 2014(2) DRTC 1(SC) |
|
|
12. |
Judgment
of Kumkum Tentiwal stayed by Supreme Court of India |
Supreme Court of India Bank
of Baroda V/s Kaushambi Paper Mills SLP 3687/2021 |
|
|
13. |
Notice
with remark refused or not available in the house or house locked
or shop closed or addressee not in station would be deemed to be served |
Supreme Court of India C.C.
Alavi Haji vs Palapetty Muhammed & Anr on 18 May, 2007 |
14. This
Court has already held that when a notice is sent by registered post and is
returned with a postal endorsement refused or not available in the house or
house locked or shop closed or addressee not in station, due service has to
be presumed. |
|
14. |
No
criminal proceedings can be initiated against bank’s officer for any action
under SARFAESI Act 2002. |
Supreme Court of India |
if the
instant action is permitted, it would not be possible to discharge the
official functions and as such the instant case is a fit case where
interference was required but the High Court has failed to appreciate this
aspect of the matter. |
|
15. |
District
Magistrate/Additional District Magistrate should issue notice to borrower and
hear him before passing any order under Section 14 of SARFAESI Act 2002 |
Allahabad High Court |
"61.
It is now settled law that the proceedings must be just, fair and reasonable
and negation thereof offends Articles 14 and 21. It is well settled law that
principles of natural justice are integral part of Article
14. No decision prejudicial to a party should be taken without
affording an opportunity or supplying the material which is the basis for the
decision. The enquiry report constitutes fresh material which has great
persuasive force or effect on the mind of the disciplinary authority. The
supply of the report along with the final order is like a post mortem
certificate with putrefying odour. The failure to supply copy thereof to the
delinquent would be unfair procedure offending not only Arts. 14, 21 and
311(2) of the Constitution, but also, the principles of natural
justice." |
|
16. |
KumKum
Tentiwal judgment of Allahabad High Court has been upheld by Supreme Court
and SLP filed against this judgment was dismissed on 06.05.2019 |
Allahabad High Court |
19. It
has been submitted by Sri Akhilesh Kalra that the judgment rendered by the
Division Bench in Kumkum Tentiwal (supra) on 11.12.2018 was challenged in SLP
by the Bank, which SLP has been dismissed by the Supreme Court on 6.5.2019
and the judgment of the Division Bench has been affirmed. |
|
17. |
Writ
Petitions should be dismissed in case of suppression of material facts.
Reliance is placed on Supreme Courts ‘K D Sharma V/s Sail (2008) 12 SCC 481 |
Hon’ble
Sri Justice A. Rajasheker Reddy and The Hon’ble Sri Justice T. Vinod Kumar Order (Per the Hon’ble Sri Justice A.
Rajasheker Reddy) |
While
dealing with power and duty of the writ court held that where petitioner
makes false statement or conceals material facts or misleads the court, the
court may dismiss the writ petition at the threshold without considering the
merits of the claim and that the court would be failing in its duty if it
does not reject the petition on the said ground. |
|
18. |
If there
is delay and delay condonation application has been filed, Debts Recovery
Tribunal should adopt liberal approach and not dismiss application under
Section 5 of limitation Act but decide on merit. Reliance placed on “Esha
Bhattacharjee V.s Managing Committee (2013)12 SCC 2649 |
High Court of Punjab and Haryana at
Chandigarh CWP No.27/2019 Date of Decision : 04.01.2019 |
There is
no dispute that DRT has jurisdiction to entertain an application under
Section 5 of the Limitation Act and should not have adopted a harsh approach
in not condoning the delay as mentioned above, particularly in view of the
principles culled out in Esha Bhattacharjee’s case (Supra). |
|
19. |
Answer
given by advocate on the instructions of and on behalf of Authorized Officer
was in the same pedestal in the eyes of law as by Authorized Officer himself |
Gujarat High Court 18.02.2016 |
Para 6 Sub Para
6.1 Sub Para
6.2 Sub Para
6.3 Sub Para
6.4 |
|
20. |
If any
objection or notice is given by advocate by petitioner. One fails to
understand why Respondent Bank cannot reply suitably like any other legal
notice through a lawyer |
Gujarat High Court, Ahmedabad Fab
Tech Manufacturing P Ltd V/s Authorized Officer,
State Bank of India date 30.01.2015 |
Therefore,
like any provision or notice under the Code of Civil Procedure or any other
statue, when the objection is sought to be raised by the borrower through
lawyer, the same is communicated by the respondent bank through lawyer that
such objections are not tenable and not acceptable and it cannot be said to
be without jurisdiction or authority. Thereafter
if any objection or a notice is given through a lawyer by the petitioners,
one fails to understand why the respondent bank cannot reply suitable like
any legal notice through lawyer. |
|
21. |
A notice
by the counsel of the bank is in law and for all intent and purpose is the
notice of the bank |
Delhi High Court |
What is
important is that a notice must be issued to the debtor in default for
payment of the outstanding amount. This notice could indeed be by an
authorized officer of the bank but merely because the bank engages the
services of a lawyer who is authorized to issue such a notice would not
render the invocation of the said powers illegal or otherwise objectionable A notice
by the Counsel for the bank is in law and for all intents and purposes a
notice by the bank. |
|
22. |
Time
limit for District Magistrate to pass orders under Section 14 of SARFAESI Act
2002 and give possession is 30 days to 60 days. The provision is directory
and not mandatory. Held by
Kerala High Court on 19.07.2019 upheld by Supreme Court on 05.11.2020 |
Supreme Court of India |
Para 20. |
|
23. |
District
Magistrate under Section 14 would not adjudicate inter-se right of parties |
Orissa High Court |
Para 33. |
|
24. |
1.
Possession Notice to be delivered physically. 2. If not
possible, it should be sent immediately preferably on the same date 3. It is
secured creditor who should reply representation and not their advocate |
Madhya
Pradesh High Court Central
Bank Of India vs M/S Jain Meneral Water Durga ... on 18 February, 2019 |
Thus, the
conjoint reading of the Rule 8(1) and proforma of the possession notice leads
to the inference that the Authorized Officer has to deliver the possession
notice to the borrower on the spot, stating that the possession has been
taken. If for any reason, including non-availability of the borrower or non
acceptance of the notice or any resistance thereto, the Authorized Officer is
required to sent the possession notice immediately as early as possible by
post, beside affixing the notice at conspicuous place of the property |
|
25. |
Advocate’s
name is not printed in cause list |
Delhi
High Court M/s
Gobind Prashad Jagdish V/s Shri Hari Shankar On 11
January 2001 |
Similarly,
if in the cause list the name of the Advocate for the respondent is not
mentioned, it must amount to having issued a notice without designating the
person to whom the notice is issued. Such a notice is incapable of being
served, much less of being duly served." |
|
26. |
Time
barred suit/application should be dismissed by the court |
Kerala
High Court Craft
Centre and Ors V/s The koncherry Coir Factories On 7 July
1990 |
4. What Section
3 of the limitation act says is that every suit instituted after the
prescribed period shall be dismissed. |
|
27. |
On
technical grounds public sector banks/FIs should not be rejected |
Supreme
Court of India United
Bank Of India vs Sh. Naresh Kumar And Ors on 18 September, 1996 |
In cases
like the present where suits are instituted or defended on behalf of a public
corporation, public interest should not be permitted to be defeated on a mere
technicality. Procedural defects which do not go to the root of the matter
should not be permitted to defeat a just cause. There is sufficient power in
the Courts, under the Code of Civil Procedure, to ensure that injustice is
not done to any party who has a just case. As far as possible a substantive
right should not be allowed to be defeated on account of a procedural
irregularity which is curable. |
|
28. |
Refusal
to obey the superior court order, such plaintiffs cannot be granted any
relief |
Supreme
Court of India M/S
Prestige Lights Ltd vs State Bank Of India on 20 August, 2007 |
35. A
party, whose hands are soiled, cannot hold the writ of the Court. We,
therefore, hold that the High Court was not in error in refusing relief to
the appellant-Company. |
|
29. |
In
absence of any injury to mortgagor, sale notice cannot be set aside |
HIGH
COURT OF DELHI STATE
BANK OF INDIA V/s HON‟BLE DEBTS RECOVERY APPELLATE TRIBUNAL W.P. (C)
No. 9090 of 2009 Date of
decision : 05.02.2010 |
However,
in absence of any injury to mortgagor, Sale Notice cannot be set aside on
account of non-statement of exact amount of secured debt. |
|
30. |
premises
has been found locked or that the addressee was not available at the time
when postman went for delivery of the letter, if the facts are proved, it may
amount to refusal of the notice |
Supreme
Court of India D.
Vinod Shivappa vs Nanda Belliappa on 25 May, 2006 Appeal
(crl.) 1255-1261 of 2004 |
We cannot
also lose sight of the fact that the drawer may by dubious means manage to
get an incorrect endorsement made on the envelope that the premises has been
found locked or that the addressee was not available at the time when postman
went for delivery of the letter. It may be that the address is correct and
even the addressee is available but a wrong endorsement is manipulated by the
addressee. In such a case, if the facts are proved, it may amount to refusal
of the notice. |
|
31. |
In Rule
9(1) “and” should place “or” |
Supreme
Court of India Mathew
Varghese Vs Amritha Kumari 10
February 2014 |
Use of
expression “or” in Rule 9(1) should be read as “and”- that alone would be in
consonance with Section 13(8) of sarfaesi Act-30 days clear notice to
borrower should also be ensured as stipulated under Rule 8(6) as well. |
|
32. |
Order XIV
Rule 2(2)(b) CPC - Issue Of Limitation Can Be Determined As A Preliminary
Issue If It Can Be Decided On Admitted Facts |
Supreme
Court of India SUKHBIRI
DEVI & ORS. versus UNION OF INDIA & ORS. CIVIL
APPEAL NO.10834 OF 2010; September 29, 2022 |
Para 18. In short,
in view of the decisions and the provisions, referred above, it is clear that
the issue limitation can be framed and determined as a preliminary issue
under Order XIV, Rule 2(2)(b), CPC in a case where it can be decided on
admitted facts. |
|
33. |
Reply to
Representation should be given within 15 days from the date of receipt of
representation in case of further delay fresh 13(2) notice should be given |
Madras
High Court Bharath
Post Graduate College vs Indiabulls Housing Finance Order
Pronounced On: 31.07.2018 |
37. We
therefore hold, that under Section 13(3-A) of the SARFAESI Act, 2002,
that in the event that a borrower makes a representation under Section
13(3-A) of the Act, the Secured Creditor, must communicate reasons for
accepting or rejecting the representation of the borrower, within 15 days
from the receipt of the representation, failing which, the notice
under Section 13(2) would be rendered invalid. The secured
creditor, would therefore have to issue a fresh notice under Section
13(2) and start the process again. |
|
34. |
By making
payment into bank, the borrower cannot be absolved from his liability of the
bank |
Supreme
Court of India Bank
Of Baroda vs M/S Karwa Trading Company on 10 February, 2022 |
However,
it is directed that on public auction being finalized and the mortgaged
property is sold by the bank the borrower has to handover the peaceful and
vacant possession of the property to the bank and/or the auction
purchaser. |
|
35. |
The
Division Bench judgment and order appended at page '41' of the paper book
passed in Writ C no.38578 of 2018 (Kumkum
Tentiwal vs State of U.P and 3 others) has held that while
passing order under Section
14 of the Act, 2002, notice or opportunity of hearing to the
borrower or the guarantor is necessary. |
Allahabad
High Court Smt.
Talat Farzana And Another vs State Of U.P. And 2 Others on 25 March, 2021 Bench:
Sunita Agarwal, Sadhna Rani (Thakur) WRIT - C
No. - 9139 of 2021 |
Having
noticed the above, it is found that the measures taken under Section 14 of SARFAESI Act, 2002 is a
coercive measure for taking possession of the secured asset, observance of
principles of natural justice while passing the order under Section 14 of the Act is necessary. For the
categorical facts recorded in the order impugned that no notice had been
issued to the borrower, this Court finds that the order dated 26.12.2020
cannot be sustained. While
quashing the same, the present petition is allowed. The matter is remitted to
the District Magistrate/Collector, Moradabad for fresh decision on Section 14 of the Act, 2002 by giving
due notice and opportunity to the petitioners. |
|
36. |
Agricultural
land where building/factory/house built is no more agriculture land hence not
exempted from action under SARFAESI Act |
Delhi
High Court Bijender
Kr Gupta vs Corporation Bank Of India on 22 November, 2013 W.P.(C)
2132/2012 and CM APPL.4608/2012 |
11.
Thus, there is no escape from the conclusion that the land in question is not
a „land‟ as envisaged under Section 3(13) of the DLR Act. 12.
Moreover, the SARFAESI
Act nowhere defines „land‟ or „agricultural land‟.
Though „land‟ as envisaged under Section 3(13) of the DLR Act is a
very wide term and includes any land on which any of the various activities
mentioned in the Section is being carried on, however, by no means, it can be
read to be an agricultural land for the purposes of Section
31(i) of the SARFAESI Act. The provisions of Section
31(i) appear to have been incorporated to only protect the land
where actual agricultural activity is being carried on. It is not even the
case of the Petitioner that any agricultural activity is being carried on on
the land in question. Also, Respondent No.1‟s plea that a banquet hall is
being run on the land in question has not been rebutted by the Petitioner by
either producing any document or by even filing any rejoinder affidavit
refuting that contention. Thus, the land cannot be called to be an
„agricultural land‟ as envisaged under Section
31(i) of the SARFAESI Act. Hence, it cannot be said that the
provisions of SARFAESI
Act are not applicable to the land in question. 13. It is
well settled that the powers under Article
226 of the Constitution conferred on all the High Courts in the
matter of issuing writs are very wide. There are, however, self-imposed
limitations on the powers of the High Courts not to issue such writs when
adequate efficacious alternative remedy is available. In
U.P. State Spg. Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264, the
Supreme Court at length discussed the exceptional cases wherein writs
under Article
226 could be issued in spite of availability of alternative efficacious
remedy. Paras 11 to 16 of the Report in R.S. Pandey are extracted hereunder: |
|
37. |
“refused”
or “not available in the house” or “house locked” or “shop closed” or
“addressee not in station”, service has been done |
SUPREME
COURT OF INDIA N
PARAESWARAN UNNI Versus G KANNAN & Ors. Criminal
appeal no. 455 of 2006 Decided
on 01.03.2017 |
15. This
Court in catena of cases has held that when a notice is sent by registered
post and is returned with postal endorsement “refused” or “not available in
the house” or “house locked” or “shop closed” or “addressee not in station”,
due service has to be presumed |
|
38. |
Charging
of interest in NPA A/c does not cease |
Allahabad
High Court Girish
Chandra Tiwari vs Uco Bank Lucknow Circle (U.P.) & 4 ...
on 9 September, 2014 |
4.5.1 In
case of NPAs where interest has not been received for 90 days or more, as a
prudential norm, there is no use in debiting the said account by interest
accrued in subsequent quarters and taking this accrued interest amount as
income of the bank as the said interest is not being received. It is simultaneously
desirable to show such accrued interest separately or park in a separate
account so that interest receivable on such NPA account is computed and shown
as such, though not accounted as income of the bank for the period". From a
perusal of the aforesaid provision, it is clear that charging of interest on
an asset declared as NPA does not cease rather, for the convenience of the
bank and particularly for the accounting purposes the amount of interest due
in the loan account declared NPA, is not shown in the loan account and
details thereof are to be maintained in a separate account |
|
39. |
For
condonation of delay, applicant/defendant should have sufficient cause. |
Bombay
High Court M/S.
La-Kozy vs Ing Vysya Bank Ltd. on 17 September, 2009 |
5…………Thus
understood, the fact that the DRT has jurisdiction to not only enquire into
the illegality and irregularity in the action of the Bank under
sub-section (1) of section
17 of the Act, but also to set aside the sale and even to order
restoration of status quo ante by the parties as observed by the Apex Court
in the case of Authorised Officer, Indian Overseas Bank & Anr. V/s. Ashok
Saw Mill reported in CDJ 2009 SC 1434, does not mean that the DRT is obliged
to entertain the proceedings even after the same has become hopelessly barred
by limitation and no sufficient cause for condoning delay is made out by the
Applicants. The onus is on the Applicants to make out sufficient cause for
condoning delay. In the present case, it has been concurrently found that the
case made out by the Petitioners was unacceptable. |
|
40. |
· No Notice to borrower under
Section 14 of SARFAESI Act · DM’s Order should served in
advance on borrower/mortgagor |
Allahabad
High Court Shipra
Hotels Limited And Anther Versus State Of U.P. And 3 Others WRIT - C
No. - 22594 of 2022 Delivered
on 25.11.2022 |
52. In
view of the above discussion, it is held that the CMM/DM acting under Section
14 of the SARFAESI Act, 2002 is not required to give notice to the borrower
at the stage of the decision or passing order as no hearing can be demanded
by the borrower at this stage. |
|
41. |
No writ
of mandamus can be issued by the High Court in exercise of powers under
Article 226 of the Constitution of India, directing a financial
institution/bank to positively grant the benefit of OTS to a borrower. |
Supreme
Court of India The
Bijnor Urban Cooperative Bank Limited, Bijnor & others V/s Meenal Agarwal
& others Passed on
15.12.2021 |
11. The
sum and substance of the aforesaid discussion would be that no writ of
mandamus can be issued by the High Court in exercise of powers under Article
226 of the Constitution of India, directing a financial institution/bank to
positively grant the benefit of OTS to a borrower. The grant of benefit under
the OTS is always subject to the eligibility criteria mentioned under the OTS
Scheme and the guidelines issued from time to time. If the bank/financial
institution is of the opinion that the loanee has the capacity to make the
payment and/or that the bank/financial institution is able to recover the
entire loan amount even by auctioning the mortgaged property/secured
property, either from the loanee and/or guarantor, the bank would be
justified in refusing to grant the benefit under the OTS Scheme |
|
42. |
Auction
sale cannot be set aside |
Supreme
Court of India K.
Kumara Gupta v/s Sri Markendaya And Ors. CIVIL
APPEAL NOS. 791-792 OF 2022 18.02.2022 |
8.1…. it
is not open to set aside the auction or sale in favour of a highest bidder on
the basis of some representations made by third parties, who did not even
participate in the auction proceedings and did not make any offer. 8.2….It
is established that there was any fraud and/or collusion or the land in |
|
43. |
Borrower
has no right be heard before magistrate SARFAESI Act |
Bombay
High Court WRIT
PETITION (L) NO. 8418 OF 2022 23.03.2022 |
8.
Pertinently, section
14 of the SARFAESI Act was amended twice, once in 2013 and then
again in 2016. If it were the intention of the legislature to extend
opportunity of hearing to a borrower before the District Magistrate/Chief
Metropolitan Magistrate, as the case may be, it was free to do so. Advisedly,
the legislature did not do so, for, it would have militated against the
scheme of the SARFAESI
Act and more |
|
44. |
Agricultural
land building/factory etc is constructed is not exempted under Section 31(i)
of SARFAESI Act and can not be called agricultural land. |
Andhra
Bank Gajula
Exim (P) Ltd V/s Authorized Officer, passed on 02.05.2008 |
10. under Section
31 (i) of the Act, its provisions are not applicable to any security
interest created in agricultural land. 11. The "agricultural lands" is
defined under Section
2 (b) of The A.P. Agricultural Land (Conversion For Non-Agricultural
Purposes) Act, 2006 and it reads as follows: (b) 'Agriculture lands' means lands used for
agriculture; 12. The
agricultural land is not defined under the present Act. It is an undisputed
fact that there were buildings, plants and machinery in the land. The
petitioner is said to have paid land revenue to the concerned authorities,
but it does not mean that by mere paying land revenue the land shall be
treated as an agricultural land. No evidence was adduced by the petitioner as
to what is the extent of land on which the buildings are situated, the extent
on which the machinery and the plants of the industry were erected and
established. There is also no material placed by the petitioner to show that
any agricultural operations are being conducted in any part of the land. In
the absence of such material and in view of the petitioner undertaking
business in seafood, the business may be treated as an industry ancillary to
pessy culture, but it cannot be treated that the land is being used for
agriculture. |
|
45. |
DM’s
satisfaction need not be recorded in the order passed by him but can be
gathered after reading his order |
Supreme
Court-Daily Order |
6….. that
the learned Magistrate at the stage of exercising jurisdiction
under Section
14 of the SARFAESI Act was not specifically required to record any
satisfaction on record the existence of any particular fact. |
|
46. |
Time
Limit For Filing Of Written Statement Under Order VIII Rule 1 CPC Is Not
Mandatory |
SUPREME
COURT OF INDIA CIVIL
APPEAL NO.3788 OF 2022 (@ SLP(C) No.63 of 2022) |
Admittedly,
the suit for injunction filed by the plaintiff is not the one which is
governed by the Commercial Court Act, 2015. Therefore, the time limit for
filing of the written statement under Order VIII Rule 1 of CPC is not
mandatory in view of the judgment of this Court reported as ‘Kailash V.
Nankhu & Ors.’ reported in (2005) 4 SCC 480. In view of the aforesaid
judgment, we find that the delay in filing of the written statement could
very well be compensated with costs but denying the benefit of filing of the
written statement is unreasonable. |
|
47. |
There is
no bar the bank to initiate proceedings simultaneously both under SARFAESI
Act 2002 and RDDBFI Act. |
S.Sumathy
vs Indian Overseas Bank on 23 January, 2018 |
26. Since
there is no bar for the respondent bank to initiate proceedings,
simultaneously both under SARFAESI and RDDB&FI Act, this Court is not
inclined to direct the respondents to forbear / refrain from enforcing the
order made in ROC.No.18419/2016-M4 dated 12.10.2016 passed by the second
respondent. |
|
48. |
the death
of the original borrower occurring at that stage of the proceedings will not
result in abatement of the entire steps already taken. |
Punjab-Haryana
High Court Kotak
Mahindra Bank Ltd vs The District Magistrate And Anr on 3 August,
2022 |
It held
that the proceedings initiated against the original borrowers for enforcement
of security interest stand concluded by virtue of intimation served upon them
with respect to taking over possession under Sec.13(4) of the SARFAESI
Act; and the death of the original borrower occurring at that stage of
the proceedings will not result in abatement of the entire steps already
taken. |
|
49. |
Bank
Can't Forfeit Deposit Made After Auction Purchase When Bidder Wasn't Informed
Of Challenge Pending Against Sale |
SUPREME
COURT OF INDIA CIVIL
APPELLATE JURISDICTION MOHD.
SHARIQ V/s PUNJAB NATIONAL BANK CIVIL APPEAL NO(S). OF 2023
(Arising out of SLP(Civil) No(s). 17470 of 2019) |
28.
Consequently, the appeal succeeds and accordingly allowed. The first
respondent is directed to return the money of Rs.50.25 lakhs to
the appellant deposited in reference to the auction notice dated
18th June, 2013 within a period of two months failing which it shall
carry interest @ 12% per annum until the date it is made over to the
appellant. No costs. |
|
50. |
Bank can proceed against personal properties
of guarantors without waiting for liquidation of mortgage properties of the company |
Madras
High Court Mr.B.Pattabhiraman vs The
Authorised Officer on 29 August, 2018
W.P.(MD).Nos.19871
to 19874 of 2018 and W.M.P.(MD).Nos.17659
to 17662 and 19050 to 19053 of 2018 |
29……………..Therefore,
the contention of the petitioners that the secured creditor of the corporate
debtor has to wait to initiate proceedings under the SARFAESI Act against the
personal guarantors till the liquidation process is over, is unsustainable
and not supported by any of the provisions of the IBC. |
|
51. |
Till OTS proposal under RBI Scheme is
decided by Bank sarfaesi action and notice under Section 13(2) should not be
issued. |
Allahabad
High Court M/S Shyama Ice & Cold
Storage (P) ... vs M/S Syndicate Bank And Another on 29 February, 2012 Civil
Misc. Writ Petition No. 8377 of 2012 |
The
question which now arises for consideration of this Court is as to whether
during the pendency of the proposal for One Time Settlement the Bank can proceed
to take steps under the provisions of the Act of 2002. In our view, the same
would not be permissible. On one hand the Bank would be communicating to the
petitioners for arriving at One Time Settlement, for which purpose the
borrower would be taking steps to ascertain as to what best amount he would
be able to pay so that the matter may be settled, and on the other hand the
Bank would be pressurizing the petitioners to arrive at the settlement by
issuing notice under Section 13 (2) of the Act of 2002 and thereby
threatening that their assets would be attached and sold under the provisions
of the Act of 2002 for recovery of the dues of the Bank. |
|
52. |
Honest,
bonafide and legitimate amendments should be allowed by courts |
Supreme Court of India M/S.
Revajeetu Builders & ... vs M/S. Narayanaswamy & Sons & Ors on 9
October, 2009
(Arising out of SLP (c) No.1552 OF 2007)
|
70. We
can conclude our discussion by observing that while deciding applications for
amendments the courts must not refuse bona fide, legitimate, honest and
necessary |
|
53. |
Period
from 15.03.2020 till 28.02.2022 shall also stand excluded. |
Allahabad High Court
January 11, 2022 |
2.
Noticing such situation, Hon'ble the Supreme Court in Misc. Application
No. 21 of 2022 filed in Suo Motu Writ Petition (C) No. 3 of 2020 (In
Re: Cognizance for Extension of Limitation) has issued direction
on 10.01.2022, which is as follows:…………… |
|
54 . |
Case of Final Hearing can not be listed under h ead “Appearance” |
High Court of Meghalaya The Deputy
Commissioner, vs . Monen Sangma on 21 May, 2019
MA (F) No. 1 of 2019 with MA (F) No. 2 of 2019
Date of Decision: 21.05.2019 |
46)
Having given my thoughtful consideration to the entire facts and
circumstances surrounding the case especially the fact that MA (F) No. 2 of
2019 the matter was fixed for appearance and not for hearing apart from the
fact that it was not indicated clearly in the Cause List of the learned trial
Court, I have no hesitation in concluding after the detailed discussions that
the learned Lower Court has misconstrued the meaning of „date fixed for
appearance to be the same as „date of hearing‟. As such, „sufficient cause‟
has been made out to satisfy this Court to warrant interference and
accordingly the orders dated 10.09.2018 are hereby set aside. |
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