M.B.Basavaraju V/S Indian Bank & anr

R.A(S.A):106/2011

R1 is represented by Ld. Counsel Shri Balasubramaniam of M/s Aiyar & Dolia. R2 viz. Shri V. Vidhyasagar is already called absent.   Ld. Counsel Shri Venkatesh R. Bhagat appears on behalf of R3.

Ld. Counsel Shri R.Y. Achar appearing on behalf of the appellant took this Tribunal through the order of the Ld. Presiding officer, DRT, Bangalore and stated that the Ld. Presiding officer has not considered the circumstances surrounding the case and that the Ld. Presiding Officer has also not considered the fact that the appellant is a bonafide purchaser of the secured asset for valuable consideration and that the Ld. Presiding officer ought to have looked into these facts before he proceeded to dismiss  ASA No.59/08.  The Ld. Counsel further stated that the Ld. Presiding Officer has erred in not looking into the agreement of sale and the subsequent sale deed and that he has also failed to appreciate the submissions made about these documents during the course of arguments and that these documents if they had been properly considered would have revealed the fact that the Authorized officer could not have proceeded against the appellant’s property.  He further stated  that had the Ld. Presiding officer considered the facts of the case in the proper perspective he would not have proceeded to dismiss the ASA filed by the appellant.

Ld. Counsel Shri Balasubramaniam appearing on behalf of R1 bank stated that nowhere in the application filed in the ASA No.59/08 the appellant has averred any contravention of the provisions of the SARFAESI Act and the rules framed there under and that in as much as there are no pleadings with respect to the contravention of the provisions of the SARFAESI Act the Ld. Presiding officer has rightly proceeded to dismiss the ASA as he has found that there are no contraventions in the action taken by the Authorised officer.  Ld. Counsel stated that the order of the Ld. Presiding Officer is proper, valid and correct and that this appeal should be dismissed with costs.

Ld. Counsel Shri Venkatesh R. Bhagat appearing on behalf of the auction purchaser i.e. R3 herein stated that the order of the Ld. Presiding officer is proper and that he has rightly negatived  the claims of the appellant made before the Tribunal below by arriving at  a correct decision that the Authorised Officer has not contravened  any of the provisions of the SARFAESI Act.  He further stated that in view of fact that no infirmities can be countenanced in the order of the Ld. Presiding officer this Tribunal should confirm the order of the Ld. Presiding officer and dismiss the appeal with costs.

Heard the Ld. Counsel for the appellant, R1 and R3.

It is seen that the appellant has not made averments with respect to any contravention of the provisions of the SARFAESI Act in the action taken by the Authorized officer and as no contravention has been complained of in the ASA this Tribunal is driven to conclude that the order of the Ld. Presiding officer has considered what is required to be considered by him under Sec.17 of the SARFAESI Act properly and further driven to hold that the appellant has not made out a case in the appeal and proceed to hold that the order of the Ld. Presiding Officer, DRT, Bangalore is proper and further hold that this appeal warrants only a dismissal. Accordingly this RA(SA) is dismissed.

IA 130/09 (stay); RA(SA) is dismissed today. Hence this IA is also dismissed.

IA 1528/10 (stay);  RA(SA) is dismissed today. Hence this IA is also dismissed.

This judgement  was delivered on 14 th Mar 2012 by the Honble Chair Person of DRAT Chennai