Writ Petition No. 21759 of 2009 and M.P. No. 1 of 2009. Case: Kalpesh P.C. Surana Vs Indian Bank. High Court of Madras (India)
| Case Number | Writ Petition No. 21759 of 2009 and M.P. No. 1 of 2009 |
| Counsel | For Appellant: S. Raghavan, Adv. and For Respondents: Joyesh B. Dolia, Adv. for Aiyar & Dolia |
| Judges | C. Nagappan and T.S. Sivagnanam, JJ. |
| Issue | Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(3A), 13(4), 17, 17A, 31 and 31(1); Wealth Tax Act - Section 2; Andhra Pradesh Land Grabbing (Prohibition) Act, 1982; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950; Andhra Pradesh Law Grabbing Act; ... |
| Citation | III (2010) BC 262 |
| Judgement Date | March 10, 2010 |
| Court | High Court of Madras (India) |
Order:
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The petitioner has sought for issuance of a writ of mandamus directing the respondent Bank to forbear from bringing the agricultural land described in the schedule, to sale on 27.10.2009 or any other date by invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
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The case of the petitioner is that he is the owner of the agricultural land bearing Survey No. 131/8 part and Patta No. 1015 issued in his name on 30.7.2007 of an extent of 1 acre and 62 cents in Vaikkadu village and he purchased the same under a registered sale deed dated 20.3.1990 and the land is described as agricultural land in the sale deed and Patta No. 237 was given to his vendor pursuant to the order dated 5.2.1972 made by the Settlement Tahsildar, Chinglepet under Section 12 of the Tamil Nadu Act No. 26 of 1963 and kist has been paid by his vendor as well as by himself and it has been used for agricultural purpose and was given on lease from 19.9.2001 to one Motilal by the petitioner. It is further stated by the petitioner that the respondent Bank granted loan to one S. Sakthivel upto a limit of Rs. 1,00,00,000/- and on 21.8.2007, the petitioner executed a Guarantee Agreement along with Mrs. S. Vijayakumari, wife of Sakthivel for due repayment of the loan and the respondent Bank obtained from him on 24.8.2007 a Memorandum of deposit of Title Deeds by which it purported to obtain an equitable mortgage by deposit of documents of agricultural land of the petitioner as security for repayment of loan advanced to Sakthivel. According to the petitioner, the list of documents annexed to the said Memorandum shows that the land is agricultural land and the Documents 1 to 12 in the Memorandum are xerox copies and not originals and there was no valid deposit of title deeds of the agricultural land and as such there is no valid and enforceable equitable mortgage created in favour of the respondent Bank. The petitioner has further stated that for the first time he received a demand notice dated 6.6.2009 purported to have been issued under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 from the Authorised Officer and Chief Manager of the respondent Bank addressed to the borrower as well as the guarantors calling upon them to pay a sum of Rs. 95,29,983.70 with interest and in the event of failure, to initiate appropriate legal proceedings for recovery and another legal notice dated 6.6.2009 classifying the loan account as Non Performing Asset and calling upon them to pay the amount, failing which, to exercise the right under Section 13(4) of the Act against the secured asset viz. agricultural land belonging to the petitioner. According to the petitioner, he sent a detailed reply dated 3.8.2009 which was received by the respondent Bank and it did not consider his representation/objection and did not communicate any reply within the stipulated period under the Act and the petitioner received the notice of intended sale on 29.9.2009 and aggrieved by the same, he has filed the present writ petition.
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The main ground raised by the petitioner is that the land of the petitioner is agricultural land and it is evident on the face of the documents mentioned in the registered Memorandum of Deposit of Title Deeds and since the land is classified as agricultural land by the Revenue Authority, the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 are not applicable as stipulated under Section 31 (1) of the Act and the proceedings initiated by the Authorised Officer are null and void. In support of the submission, the petitioner relies on the decision of the Supreme Court in N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act (2006) 4 SCC 214: III (2006) CLT 1 (SC). In addition, the petitioner has also raised the ground that the respondent Bank has failed to consider the representation/objection of the petitioner dated 3.8.2009 and has not communicated the reasons for non-acceptance of it and in view of the failure to comply with Section 13(3-A) of the Act, the proceedings are vitiated and in support of the submission, the petitioner relies on the decision of the Supreme Court in Mardia Chemicals Ltd. v. Union of India (2004) 4 SCC 311:110 (2004) DLT 665 (SC): II (2004) BC 397.
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The next contention of the petitioner is that the proposed notice of intended sale is contrary to Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 and no possession notice has been delivered by the Authorised Officer to the petitioner for having taken possession of the land as contemplated under Rule 8(1) and there is non-compliance of the provision of Rule 8.
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The respondent Bank in its counter affidavit has stated that the property of the petitioner was offered by way of equitable mortgage by deposit of title deeds as security for the loan obtained by Sakthivel and the said equitable mortgage was duly registered as Document No. 9702/2007 in the office of the Sub-Registrar, Tiruvottiyur and the petitioner had given his sworn affidavit in the form of declaration, dated 24.8.2007, wherein he confirmed that he has submitted all the original documents pertaining to the property with the respondent Bank for the purpose of mortgage by way of collateral security and in addition, the petitioner along with Mrs. S. Vijayakumari, wife of Sakthivel, stood as...
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Appeal No. 151 of 2014. Case: Panwar Steel Ltd. and Ors. Vs Indian Overseas Bank and Ors.. High Court of Bombay (India)
...issued. In this regard, the Bank had placed reliance on the judgment of the Madras high Court in Kalpesh B.C. Surana v. Indian Bank, III (2010) BC 262: AIR 2010 Madras 169, where it was viewed that 30 days' notice would be required only for first sale. The same view had been expressed by th......
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Appeal No. 151 of 2014. Case: Panwar Steel Ltd. and Ors. Vs Indian Overseas Bank and Ors.. High Court of Bombay (India)
...issued. In this regard, the Bank had placed reliance on the judgment of the Madras high Court in Kalpesh B.C. Surana v. Indian Bank, III (2010) BC 262: AIR 2010 Madras 169, where it was viewed that 30 days' notice would be required only for first sale. The same view had been expressed by th......