TaxTMI 
TaxTMI 
2016 (4) TMI 1251
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....on of the controversy and the following order was passed on 07th April, 2016. "Heard learned advocate Mr. A. M. Parekh for the petitioner and learned senior counsel Mr. Sudhir Nanavati assisted by learned advocate Mr. Bhavesh Choksi in extenso. 2. Both the learned advocates consented and requested the Court to take up the main petition for final consideration. Therefore, keeping Civil Application pending, main petition was taken up and learned advocates for the parties were heard. 3. Learned advocates have stated that they have completed their pleadings and have concluded their submissions. 4. Reserved for orders." 3. The challenge in the main Special Civil Application is addressed to order dated 17th September, 2015/17th October, 2015 passed by the District Magistrate, Ahmedabad under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SERFAESI Act) whereby the respondent-Bank was given the police assistance for the purpose of taking possession of the mortgaged property being Flat No.203, 2nd Floor, Tower 2, Devnandan Infinity, Survey No.266/2+3+4, Final Plot No.281, T.P. No.....
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....ted 26th June, 2014. (viii) On 23rd September, 2014 the applicant issued a demand notice in newspaper. (ix) On 25th September, 2014 said Joytsnaben Yograjsinh Chudasama and Geetaba Vanrajsinh Chudasama replied to above-mentioned demand notice. (x) On 07th October, 2014 in reply thereof, the Bank also sent a letter to Jyotsnaben and Geetaba specifically requesting them to pay as per demand notice, or else applicant-Bank shall have no other option but to take further necessary steps as per the SERFAESI Act. 4. Learned advocate Mr.A.M. Parekh for the petitioner tried to raise various contentions. He submitted that procedure for taking possession was not followed. In any view when the petitioner was not heard by the Magistrate, such opportunity ought to have been given to her. It was also insisted that the Bank did not comply with the requirement of making certain factual averments in its application under Section 14 of the Act. Learned advocate for the petitioner relied on the decisions in (i) Dena Bank Vs The District Magistrate being Letters Patent Appeal No.877 of 2008 decided on 10th July, 2009, (ii) Consumer Protection And Analytic Committee Vs State....
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....n affixed on the property, the petitioner who is in possession, cannot disclaim the knowledge thereof and therefore also the knowledge of proceedings before the District Magistrate. It was submitted that despite that the petitioner did not appear, thereafter petitioner cannot subsequently complain about notice not given and/or opportunity not afforded. 5.1 The original owners executed power of attorney in favour of said Jyotsnaben Yograjsinh Chudasama and Geetaba Vanrajsinh Chudasama in which existence of Bank dues were clearly mentioned. The present petitioner claims to be the purchaser from the said person who acted on the basis of the power of attorney. Therefore it was sought to be contended that it was hardly a believable stand by the petitioner that she was unaware about the claim of the Bank; the knowledge in that regard has to be attributed to the petitioner. 5.2 While on reading of the facts, thus the submission of learned senior counsel that the petitioner was within the know of the unpaid dues of the Bank could not be brushed aside lightly, there was yet another aspect staring on the face of merits, the petitioner has instituted Special Civil Suit No.592 of 2014 fo....
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....ot avail the remedy of Appeal is devoid of substance. On a plain reading of Section 17 of the Act which provides a remedy of Appeal, its language is wide enough when it provides that any aggrieved person including the borrower may file Appeal. Therefore not only the borrower but any person who feels aggrieved and who has the cause to assert his rights in respect of action on part of the Bank or Financial Institution under the Act, is entitled to prefer Appeal and invoke jurisdiction of Debts Recovery Tribunal. 6.3 In Union of India Vs Satyawati Tondon [AIR 2010 SC 3413], the Apex Court observed to held as under. "There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14." (para 17) 6.3.1 It was further observed, "Bo....