9911796707
TMI Blog2006 (6) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of Financial Assets and Enforcement of Security Interests Act." [Emphasis supplied] Besides, the petitioners have prayed various other reliefs, as para 18, the prayer clause, consists of, as many as eight sub-clauses. 2. If the petitioners are heard, saying the submissions made in this petition and if the petition is considered for grant of the relief quoted hereinabove or any other relief, its net effect will be that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 (hereinafter referred to as "the Act") will stand repeal from the statute book. The Act was brought on the statute book for a definite purpose and the purpose was to see that the financial institutions are not made to follow a long recovery procedure of the debts, particularly, the secured debts. In the present case, the respondent No. 1-Bank of Baroda advanced some loan to respondent No. 3, for which the property in question i.e. Flat bearing No. C/201 of Zamzam Apartment was the security. The say of the petitioners is that they do not know, respondent No. 3. They have purc- hased this Flat from one Jetunisha Kadarmiya Shaikh - respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 13, however, he clarified that this submission is made without prejudice to his earlier submissions, namely, the provisions of the Act do not apply to the case of the petitioners, the respondent Bank and the petitioners have no relationship of borrower and the secured creditor and therefore, the petitioners should not be touched by the Bank. The learned advocate submitted that if at all the Court does not accept the submissions made on behalf of the petitioners, then, the submission that; "the respondent Bank has not followed the prescribed procedure" be accepted and if not on the first ground, than, on the second ground, the petition be allowed and reliefs as prayed for be granted. Sub-section (1) of section 13 provides as under : " Enforcement of security interest . Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of this Act." The learned advocate submitted that he be allowed to reiterate that these su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reason all such persons be allowed to live happily. The argument of the learned advocate for the petitioners is not only unreasonable but against the morality. However, it does not sound unreasonable to the learned advocate for the petitioners because he is under an obligation to be discharged in the open Court by arguing that condition precedent for implementation of law is the relationship of borrower and the secured creditor between the parties. Identification of the property is to be ignored. The submission of the learned advocate for the petitioners is that the petitioners are not the borrower , the respondent No. 1-Bank is not the secured creditor and therefore, the Bank cannot take any action against the petitioners and must thank itself and write off the debts. 8. The learned advocate for the petitioners next submitted that, it is also required to be noted that the respondent No. 1-Bank did not give any notice under sub-section (2) of section 13 to the petitioners. The submissions of the learned advocate is that if the secured creditor/respondent No. 1-Bank treats the petitioners to be borrowers then they should have been served with the notice under sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in providing for a service of a notice upon the borrower under sub-section (2) of section 13 of the Act." In the present case, the petitioners are not served with any such notice, therefore, it is to be held that provisions of the Act are breached and therefore, the petition be entertained and the reliefs sought for be granted. 11. None of the submissions of the learned advocate are found to be acceptable. If any of the arguments of the learned advocate are accepted, as discussed hereinabove, the same will have only one effect and i.e . nullifying the entire Act. Besides, the Court finds that all arguments/submissions are thoroughly misconceived. The learned advocate for the petitioners conveniently avoided to acknowledge the concept of secured assets and the secured assets cannot disappear like a natural human being, the borrower. In the present case, the borrowers and the respondent No. 3 could dupe somebody by transferring the secured assets , firstly to respondent No. 4, who in turn transferred to present petitioners. Even if the bona fides of the petitioners are not doubtful the question is "whether they have a remedy against the secured creditor/respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
