9911796707
TMI Blog2004 (7) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... inal documents, copy whereof is produced on page 20 is considered the stamp paper is purchased on 29-1-1986, whereas it is used for entering into transaction on 11-10-1990 i.e., after a period of expiry of six months. The respondent Bank issued notice dated 3-11-2003 under "Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002" (hereinafter referred to as "the Ordinance") under section 13(2) for recovering of the amount outstanding from the borrower as well as the guarantor. As per the Bank, Rambhai Kavalbhai Patel was the original owner of the property in question stood as the guarantor and the said property was mortgaged with the Bank. It is the said notice of the Bank which is under challenge in this petition by the petitioners. The petitioners have also prayed for challenging the communication dated 15-12-2003, whereby the bank addressed a correspondence giving copy of the notice dated 3-11-2003 issued to Rambhai K. Patel and intimated to the petitioners that upon the expiry of the period of 60 days, the Bank will proceed for public auction of the said property and the petitioners are intimated to surrender the vacant possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mortgage as per the Transfer of Property Act and it is not open to the Bank to take the possession directly from the purchaser of the property who has acquired the rights over the property. Section 13(4) of the Act reads as under : "13(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely : ( a )take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for raising the secured asset; ( b )take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured assets; ( c )asspoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; ( d )require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer of Property Act. Therefore, if the petitioners have not acquired lawful interest in the property as per the provisions of Transfer of Property Act and if the petitioners would not be entitled to the benefits and the protection under section 53A of the Transfer of Property Act, against respondent bank in capacity as mortgagee, the petitioners cannot validly press in service the provisions of section 13(4) clause ( d ) of the Act as sought to be canvassed by Mr. Kapadia on behalf of the petitioners. Since the petitioners are found to be having not acquired the security assets, it would not be necessary to examine the larger questions as to whether the rights of the Bank as mortgagee of the property can be enforced under section 13(4) even if registered sale deed is executed by borrower for taking possession of the property or not. In the present case, the property legally has continued to remain with the mortgagor and the respondent bank is enforcing the security interest over the property which is mortgaged. Merely because in respect of the property which is mortgaged, the agreement to sell is entered into, will defeat and frustrate the rights of the Bank, nor it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus of the petitioners as bona fide purchaser or otherwise can be gone into at the trial or the Debt Recovery Tribunal (DRT) may examine such questions of facts, but at this stage, in a petition under Article 226 of the Constitution for challenging the action under section 13(4), it cannot be concluded that the petitioner are a bona fide purchaser of the property in question. Mr. Kapadia, learned counsel appearing for the petitioner, has also raised the contention that as per the provisions of the Act, the notice is required to be served to the borrower and the borrower includes the guarantor but the guarantor has expired long back. He submitted that notice is required to be issued to the legal heirs of the guarantor and the liability of the legal heirs should also be fixed to the extent of the property which is inherited by the legal heirs from the guarantor. He also submitted that as such in such a situation, the provisions of the Act cannot be invoked and the proper steps are required to be taken under Indian Succession Act and other relevant provisions of the Act and, therefore, he submitted that in absence of action being taken by the bank, the present action of the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 13(4) of the Act, I am of the view that if the respondent bank is directed to issue a fresh notice under section 13(2) of the Act and the opportunity is given to the Bank to take action under section 13(4) of the Act, no serious prejudice will be caused to the respondent bank and, therefore, I find that it is not necessary for this Court to examine the question as to whether for testing the legality and validity of the notice, the substance of the notice is to be seen or the detail or the reference made to the Ordinance is to be considered. As such in view of the directions given hereinafter, such aspect, in my view, would be rendered academic. 13. In view of the aforesaid I find that the following directions be issued that 13.1 The respondent Bank shall be at the liberty to issue a fresh notice under section 13(2) of the Act for taking measures under section 13(4) of the Act against the property in question by serving the same to the legal heirs of the guarantor namely Rambhai K. Patel for recovery of the amount and for enforcement of the security interest. 13.2 It will be open to the petitioner to make representation to the Bank in case the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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