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TMI Blog2009 (9) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... oked the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. A notice dated 17th December 2005 was issued under Section 13(2) of the Act by the Respondent Bank. The Petitioner preferred securitisation application which was numbered as Securitization Application No.86 of 2007 some time on 8th October 2007, amongst others, questioning the validity of the notice issued by the Bank. The reliefs claimed in the original securitisation application were as follows : (a) this Hon'ble Tribunal may be pleased to declare the notice issued under section 13(2) of the SARFAESI Act, is being bad in law illegal, unlawful and null and void. (b) That this Hon'ble Tribunal may be pleased to declare that the measures adopted under section 13(4) of the SARFAESI act, are violative and are contrary to Rule 8 of the Securitization Interest (Enforcement) Rules, 2002 and hence the taking possession be declared as null and void. (c) That the purported sale affected on 01.10.2007 by Respondent No.2 in favour of the Respondent No.3 be declared as null and void. (d) That this Hon'ble Tribunal may be pleased to declare that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete prayer 7(c). 8(b)(i) That pending the hearing and final disposal of the Securitization Application, Respondent Bank is required to be directed to deposit the alleged sale proceeds in respect of Gat Nos. 319, 322, 325, 326 in this Hon'ble Tribunal and/or to keep such alleged sale proceeds separately and subject to the orders as may passed in respect of the aforesaid property by this Hon'ble Tribunal in the present Securitization Application. 8(b)(ii)that pending the hearing and final disposal of the Securitization Application, the Respondent Nos.3 and 4 be restrained by an order of injunction from selling, transferring, encumbering or otherwise dealing with Gat Nos. 319, 322, 325, 326 or creating any third party rights in respect thereof. Interim and ad-interim reliefs in terms of paras 8(b)(i) and 8(b)(ii) above be granted. 6. The matter did not rest at that, inasmuch as the Petitioner moved another amendment application on 25th July 2008 (Exhibit 21). For the nature of controversy that needs to be addressed by us, we think it apposite to reproduce the contents of the said Application, which read thus : 1. The Applicant has filed Securitization Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Applicant was under bonafide belief that the sale has been already conducted on 1st October 2007 only after going through the reply filed by the Defendant Bank, the Applicant came to know that private treaty has been conducted on 15th October, 2007 and the property was sold to one Mr. Shashank Shah. The Purchaser's are brought on record as per the directions. It is just in the interest of justice that the subsequent event be allowed to take on record and necessary directions/orders be given to amend the securitization application in respect of sale conducted on 15th October, 2007 by way of private treaty without notice and following mandatory provisions under the Act. Para to be added after 6 (L) Ground It is mandatory on the part of the Defendant Bank to give notice of the sale by private treaty. It is further submitted that the applicant was never informed about the sale by private treaty conducted on 15th October 2007, the mandatory provisions of the Act are not complied with before putting the property for sale and therefore on this count alone sale by private treaty without notice is liable to be set aside. Schedule B Prayers to be added after payer (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded learned Counsel that in the earlier Application, the foundation for praying proposed relief was already laid. It is obvious that it was the mistake of the draftsman of the Application which resulted in non-mentioning of proposed relief now claimed by way of second amendment application. Moreover, the proposed amendment would not give rise to fresh cause of action. According to the Petitioner, not granting permission to amend has resulted in serious miscarriage of justice. For, the purpose for which the first amendment has been allowed by the Tribunal, would be rendered meaningless in absence of appropriate relief in that behalf. To buttress the above submissions, Counsel for the Petitioner has relied on the decision of the Apex Court reported in 2004 Law Suit (SC) 1376 in the case of Raj Kumar vs. Dipender Kaur Sethi which has taken the view that if the material averment was left out due to inadvertence of the draftsman and if that is sought to be rectified by way of second amendment, so as to fill up the missing averment in the plea already introduced, the same ought to be granted. 10. The Counsel appearing for the Respondent, on the other hand, have opposed this Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the stage contemplated under Section 13(4) ? The Apex Court has answered the said issue in the affirmative. It has held that the consequences of the authority vested in Debts Recovery Tribunal under sub-section (3) of Section 17 necessarily implies that the Debts Recovery Tribunal is entitled to question the action taken by the secured creditors and the transactions entered into by virtue of Section 13(4) of the Act. It has expounded that the Legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the Debts Recovery Tribunal with authority to even set-aside a transaction including sale and to restore possession to the borrower in appropriate cases. It has also noted that the dichotomy in the views expressed by the Bombay High Court and the Madras High Court has in fact been resolved to some extent in the case of Mardia Chemicals (supra) and also by virtue of the amended effected to Sections 13 and 17 of the principal Act. It has thus held that the Debts Recovery Tribunal has jurisdiction to interfere with the action taken by the secured creditor even after the stage contemplated under Section 13(4) of the Act, as the action of the secured credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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