Shilpa Homes and anr. Vs. A.P. Mahesh Co-operative Urban - Court Judgment

Excerpt:
1. this regular appeal is directed as against the order dated 5th october, 2005 in s.a. no. 85 of 2004, passed by the d.r.t., hyderabad.the appellants have questioned the validity of the notice issued under sections 13(2) and 13(4) of srfaesi act, 2002, before the d.r.t. and the d.r.t. after taking into consideration all the aspects of the case, came to the conclusion that the respondent bank has not complied with rule 8(2) of the security interest (enforcement) rules, 2002, regarding publication and, therefore, the measures taken under section 13(4) of the srfaesi act are not maintainable and set aside the measures taken under section 13(4) of the srfaesi act. as against the same, this appeal has been filed.i have heard the learned advocates for the appellants and the respondent.2. it is the contention of the learned advocate for the appellants that the notice issued under section 13(2) itself is not maintainable apart from the fact that the action taken by the respondent is barred by time. hence the measures taken under section 13(4) is not at all maintainable. it is further contended, the learned presiding officer while allowing the application filed by the appellants should have decided the question of limitation also, but it was not done and the respondent was also allowed to take up proceedings arising after the issuance of notice under section 13(2) of the srfaesi act, and therefore, the respondent would take further proceedings in which case, the appellants would be put to unnecessary hardship and inconvenience.the appellants, therefore, submitted that the order passed by the d.r.t. is not proper.3. on the contrary, the learned advocate for the respondent bank would submit that the d.r.t. has set aside the measures taken under section 13(4) of the srfaesi act but, however, held that the notice issued under section 13(2) holds good and, therefore, the respondent is entitled to take necessary measures under section 13(4) after compliance of the relevant rules. it is further submitted that the appellants are entitled to question the measures taken under section 13(4) of the srfaesi act, but not the notice issued under section 13(2) of the act.4. the apprehension of the appellants appears to be. that they would not be allowed to raise all the contentions, which they have already raised in the application filed before the d.r.t. and, therefore, their right would be prejudiced. it is also further submitted that the appellants have already incurred the payment of court fees and no cost was awarded by the d.r.t. and if the appellants have to challenge the measures that would be taken by the respondent once again under section 13(4), they have to pay court fee once again, which would unnecessarily burden the appellants.as far as the first contention of the appellants is concerned, i would like to make it clear that the appellants are always at liberty to raise all the contentions, which they have already raised and they are also entitled to raise further contentions in the measures that would be taken by the respondent under section 13(4) and they would not be precluded at all from raising all the contentions and, therefore, the first contention of the appellants is answered accordingly.as far as the second contention of the appellants that they have to spend amount for the court fee for the second time is concerned, if they were to challenge the measures that would be taken by the respondent under section 13(4) of the srfaesi act, it requires consideration. as the d.r.t. had set aside the measures taken under section 13(4) of the srfaesi act, the application filed by the appellants could have been allowed with cost, but no cost has been awarded. there is no provision for refund of the court fee in the rddbfi act. that in the said circumstances, i am able to perceive the hardship that would be caused to the appellant in paying the court fee once again. hence, i am inclined to set aside the order of the tribunal with regard to the cost alone, as i feel that the appellants arc entitled to cost.5. in the result, the appeal is allowed in part and the order with regard to 'no costs' passed by the d.r.t., hyderabad, is set aside and it is held that the appellants are entitled to cost.6. the appellants have filed an application for waiver of the deposit as required under section 18 of the srfaesi act, in which this tribunal by its order dated 19th july, 2006, directed the appellant to deposit a sum of rs. 7 lakh with the respondent bank and the said sum was also deposited by the appellants and it is with the respondent bank. as the appellants have questioned the validity of the measures taken under section 13(4) of the srfaesi act, and the same was allowed by the d.r.t., and it was not questioned by the respondent bank, the appellants pray for refund of the said amount.7. without prejudice to the rights and contentions of the appellants, the respondent bank is hereby directed to keep the said amount of rs. 7 lakh in an interest earning no lien account for a period of one year and if no action is taken by the respondent within the said time, the appellants are entitled to get back the amount.

Judgment:
1. This regular appeal is directed as against the order dated 5th October, 2005 in S.A. No. 85 of 2004, passed by the D.R.T., Hyderabad.

The appellants have questioned the validity of the notice issued under Sections 13(2) and 13(4) of SRFAESI Act, 2002, before the D.R.T. and the D.R.T. after taking into consideration all the aspects of the case, came to the conclusion that the respondent Bank has not complied with Rule 8(2) of the Security Interest (Enforcement) Rules, 2002, regarding publication and, therefore, the measures taken under Section 13(4) of the SRFAESI Act are not maintainable and set aside the measures taken under Section 13(4) of the SRFAESI Act. As against the same, this appeal has been filed.

I have heard the learned Advocates for the appellants and the respondent.

2. It is the contention of the learned Advocate for the appellants that the notice issued under Section 13(2) itself is not maintainable apart from the fact that the action taken by the respondent is barred by time. Hence the measures taken under Section 13(4) is not at all maintainable. It is further contended, the learned Presiding Officer while allowing the application filed by the appellants should have decided the question of limitation also, but it was not done and the respondent was also allowed to take up proceedings arising after the issuance of notice under Section 13(2) of the SRFAESI Act, and therefore, the respondent would take further proceedings in which case, the appellants would be put to unnecessary hardship and inconvenience.

The appellants, therefore, submitted that the order passed by the D.R.T. is not proper.

3. On the contrary, the learned Advocate for the respondent Bank would submit that the D.R.T. has set aside the measures taken under Section 13(4) of the SRFAESI Act but, however, held that the notice issued under Section 13(2) holds good and, therefore, the respondent is entitled to take necessary measures under Section 13(4) after compliance of the relevant rules. It is further submitted that the appellants are entitled to question the measures taken under Section 13(4) of the SRFAESI Act, but not the notice issued under Section 13(2) of the Act.

4. The apprehension of the appellants appears to be. that they would not be allowed to raise all the contentions, which they have already raised in the application filed before the D.R.T. and, therefore, their right would be prejudiced. It is also further submitted that the appellants have already incurred the payment of Court fees and no cost was awarded by the D.R.T. and if the appellants have to challenge the measures that would be taken by the respondent once again under Section 13(4), they have to pay Court fee once again, which would unnecessarily burden the appellants.

As far as the first contention of the appellants is concerned, I would like to make it clear that the appellants are always at liberty to raise all the contentions, which they have already raised and they are also entitled to raise further contentions in the measures that would be taken by the respondent under Section 13(4) and they would not be precluded at all from raising all the contentions and, therefore, the first contention of the appellants is answered accordingly.

As far as the second contention of the appellants that they have to spend amount for the Court fee for the second time is concerned, if they were to challenge the measures that would be taken by the respondent under Section 13(4) of the SRFAESI Act, it requires consideration. As the D.R.T. had set aside the measures taken under Section 13(4) of the SRFAESI Act, the application filed by the appellants could have been allowed with cost, but no cost has been awarded. There is no provision for refund of the Court fee in the RDDBFI Act. That in the said circumstances, I am able to perceive the hardship that would be caused to the appellant in paying the Court fee once again. Hence, I am inclined to set aside the order of the Tribunal with regard to the cost alone, as I feel that the appellants arc entitled to cost.

5. In the result, the appeal is allowed in part and the order with regard to 'No costs' passed by the D.R.T., Hyderabad, is set aside and it is held that the appellants are entitled to cost.

6. The appellants have filed an application for waiver of the deposit as required under Section 18 of the SRFAESI Act, in which this Tribunal by its order dated 19th July, 2006, directed the appellant to deposit a sum of Rs. 7 lakh with the respondent Bank and the said sum was also deposited by the appellants and it is with the respondent Bank. As the appellants have questioned the validity of the measures taken under Section 13(4) of the SRFAESI Act, and the same was allowed by the D.R.T., and it was not questioned by the respondent Bank, the appellants pray for refund of the said amount.

7. Without prejudice to the rights and contentions of the appellants, the respondent Bank is hereby directed to keep the said amount of Rs. 7 lakh in an interest earning No Lien Account for a period of one year and if no action is taken by the respondent within the said time, the appellants are entitled to get back the amount.