2. The learned Counsel for the applicants in support of his application referred notice dated 16th August, 2000 under Section 13(2) and the notice dated 1st December, 2003 under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002. It is stated that two different loan amounts are mentioned in these notices. The amount under C.C.account No. 91 in the notice dated 16th August, 2000 is shown as nil whereas under notice dated 1st December, 2003 it is shown as Rs. 4,70,966.88. He further contended that the loan account number and the date of classification and other details of non-performing asset are not given in the notice under Section 13(2). He further contended that the notices under Sections 13(2) and 13(4) were issued under the Ordinance which has lost its validity after the Act coming into force.
In this connection he referred the judgment of the Hon'ble High Court in some other case quashing the notices issued by the secured creditor Bank on the basis of the Ordinance. It is further contend that there is no valid charge over the properly and the respondent Bank has already filed a suit for its claim in Civil Court, Agra. It is also contended that the applicants have sent reply to the notice under Section 13(2) issued by the Bank but no reasoned reply has been given by the respondent Bank. The learned Counsel for the applicants referred the postal receipt filed by him in support of the dispatchment of the reply by the applicants.
3. In reply the learned Counsel for the respondent Bank stated that there is no contradiction in the amount recalled from the applicants.
The notice dated 1st December, 2003 was issued to the applicants with regard to the amount unlawfully drawn from the account on the basis of fraud committed by one Shri D.K. Nair, Manager of the branch. This notice is not a part of the proceedings under SRFAESI Act with regard to the reasoned reply under Section 13(3) the learned Counsel for the respondent Bank stated that the Bank has not received any reply to its notice under Section 13(2) which was issued by the authorised officer i.e. the Assistant General Manager of the Bank. With regard to the notice issued under Securilisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 it is contended that after the enforcement of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SRFAESI Act for short hereafter) the Ordinance has been merged with the Act.
4. I have heard the learned Counsel of both the parties and gone through the record. I find that the notice dated 8th December, 2003 referred by the learned Counsel for the applicants pertain to the amount recalled by the respondent Bank which was allegedly unlawfully drawn by the applicants on the basis of fraud committed by Mr. D.K.Nair, the Manager of the respondent Bank. From the perusal of the record I find that the notice under Section 13(2) of the SRFAESI Act was issued by the respondent Bank on 28th July, 2003 and the another notice for possession was issued on 8th December, 2004. In both these notices the amount recalled by the respondent Bank is one and the same.
There is no contradiction in the amount claimed by the respondent Bank.
It is further observed that the notice dated 28th July, 2003 was issued under the provisions of the SRFAESI Act. It is clearly mentioned in the notice whereas in the possession notice the specific section is not mentioned. Moreover, none of the notices have been issued under the Ordinance. The only mistake which has been committed by the respondent Bank is that while giving reference of the notice under Section 13(2) in the notice under Section 13(4) the word 'Ordinance' has been mentioned instead of Act. This is a typographical mistake. It is a fact that notice under Section 13(2) has been issued under the provisions of the SRFAESI Act. By making a wrong reference in another notice (possession notice) does not change the nature of the notice under Section 13(2) which is a legally valid notice issued by the respondent Bank. With regard to the contention raised by the learned Counsel for the applicants that the loan account number and full details of the non-performing asset, date of classification, etc. are not mentioned in the notice under Section 13(2) of the SRFAESI Act. I am of the opinion that it is not necessary to give the full details of the non-performing asset in this notice. It is sufficient to mention that the account has become non-performing asset along with quantum of loan i.e. liability recalled. With regard to the contention raised by the learned Counsel for the applicants that the respondent Bank has not given any reasoned reply to their reply under Section 13(3) of the SRFAESI Act, it is on record that the applicants could not prove the receipt of reply by the respondent Bank. The reply by the applicants was sent to the Branch Manager and not to the authorised officer i.e. Assistant General Manager of the Bank. The applicants contended that there is no valid charge over the property but no proof has been given in this regard and the applicants failed to prove the same. The applicants contention that the respondent Bank has filed a civil suit in Agra is not a bar for initiating the legal action by the respondent Bank under the SRFAESI Act.
5. On the basis of the above mentioned discussions I am of the opinion that by initiating the proceedings under SRFAESI Act the respondent Bank has committed no illegality. The respondent Bank is legally-empowered to initiate such proceedings to enforce its right against the security. The applicants failed to prove their case, hence, the application is liable to be dismissed.
That the S.A. No. 5/2005 initiated by the M.M. Carpet Industries and Ors. against the Punjab National Bank and Ors. under Section 17 of the SRFAESI Act, 2002 is hereby dismissed on contest. No cost.