Punjab National Bank vs Additional District Magistrate / ...
2024 Latest Caselaw 15242 MP

Madhya Pradesh High Court

Punjab National Bank vs Additional District Magistrate / ... on 22 May, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                                    -1-


                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT I N D O R E
                                                                    BEFORE
                                        HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                                                 DHARMADHIKARI
                                                                           &
                                        HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                                  WRIT PETITION No. 3806 of 2022

                         BETWEEN:-
                         PUNJAB NATIONAL BANK CHIEF MANAGER
                         SANVER ROAD BRANCH SHRI RAJESH K BAJAL
                         S/O LATE SHRI H.C. BAJAJ (MADHYA PRADESH)
                                                                                                        .....PETITIONER
                         (BY SHRI GAURAV CHHABRA, ADVOCATE.)

                         AND
                         1
                           ADDITIONAL   DISTRICT    MAGISTRATE
                         .
                           COLLECTOR DHAR (MADHYA PRADESH)

                            MR. ANIL AGRAWAL S/O MOHANLAL
                            AGRAWAL OCCUPATION: PROPRIETOR OF
                         2. M/S SHIVKRIPA AGRO INDUSTRIES 106,
                            JAWAHAR MARG, MANAVAR (MADHYA
                            PRADESH)
                            MR. SHAILENDRA KUMAR S/O SHRI
                         3. MOHANLAL AGARAWAL 106, JAWAHAR
                            MARG, MANAVAR (MADHYA PRADESH)
                                                                                                    .....RESPONDENTS
                         (RESPONDENT NO.1 / STATE BY SHRI BHUWAN GAUTAM, GOVERNMENT
                         ADVOCATE.
                         RESPONDENT NOS.2 & 3 BY SHRI YASHI MAHESHWARI, ADVOCATE.)
                         --------------------------------------------------------------------------------------------------------
                                 This petition coming on for orders this day, Justice Gajendra Singh
                         passed the following:

                                 Heard on                           :        07.05.2024

                                 Order Delivered on                 :        22.05.2024



Signature Not Verified
Signed by: PRAVEEN
Signing time: 22-05-
2024 17:40:27
                                                         -2-


                                                         ORDER

This writ petition under Article 226 of the Constitution of India is preferred challenging the order dated 18.10.2021 passed by respondent No.1 in case No.RCMS/0076/B-121/2021-22 (Security) whereby the application filed by the petitioner (Annexure P/9) for making necessary correction in the order dated 24.04.2019 (Annexure P/8) has been dismissed seeking following reliefs:-

(i) The order dated 18.11.2021 (Sic 18.10.2021), passed by respondent No.1 in case bearing No.RCMS/76/2021-

2020/B-121 (Security) be set aside and the application filed by the petitioner (Annexure P/9) may be allowed, directing the Respondent No.1 for making necessary correction in the main order dated 24.04.2019 (Annexure P/8).

(ii) The respondent No.1 be directed to carry out the necessary corrections in its earlier order dated 24.04.20109 and the description of the property mentioned as 'House On Khasra No.384/1 (k) and 455/2/2, Patwari Halka No.07, Old No.26, Settlement No.359, Oppo, Mangladevi Temple Manawar, District Dhar (M.P.) be corrected as ' House On Khasra No.384/1 (K) and 445/2/2, Patwari Halka No.07, Old No.26, Settlement No.359, Oppo, Mangladevi Temple Manawar District Dhar (M.P.).

(iii) That the respondent No.1 may be directed to provide assistance to the Petitioner bank to take vacant physical possession House on Khasra No.384/1 (K) and 445/2/2 Patwari Halka No.07, Old No.26, Settlement No.359, Oppo. Mangladevi Temple Manawar, Dist. Dhar

(M.P.) admeasuring 11619 sq.ft.

(iv) Any other relief in favour of the petitioner that this Court may deem fit, may also be granted.

Facts of the case are as under:

02. On 27.10.2015 respondent No.2 obtained financial assistance in the form of cash credit of Rs. 2,00,00,000/- (Rupees Two Crores Only), in the name of M/s. Shivkripa Agro Industries, from the petitioner bank.

Against the said loan, respondent No.3 stood as guarantor and had mortgaged the property of his own ownership, i.e., House on Khasra No. 384/1 (K) and 445/2/2, Patwari Halka No. 07, Old No. 26, Settlement No.359, Oppo. Mangladevi Temple Manawar, Dist. Dhar (M.P.) admeasuring 11619 sq. ft. (hereinafter referred to as the 'subject property' / 'mortgaged property').

03. Since the respondent No.2 failed in repaying the said loan amount, the account of Respondent No.2 was declared as NPA on 31.03.2017, and the petitioner bank initiated proceedings for recovery of the loan dues amounting to Rs. 1,99,57,377.93 as on 31.03.2017.

04. The petitioner bank issued a demand notice under Section 13(2) of the SARFAESI Act, dated 22.09.2017 to all the respondents (No.2 and 3) and the same was served upon them on 27.09.2017.

05. In pursuance to the aforesaid, the petitioner bank took the symbolic possession on 23.01.2018 and also got the same published in the newspapers on 30.01.2018. At the time of issuance of the said demand notice under Section 13(2) of SARFAESI Act dated 22.09.2017 as well as while publication of notice of taking symbolic possession in the English newspaper on 30.01.2018, the Khasra number of the mortgaged property was mentioned correctly i.e. Khasra No. 384 (k) and 445/2/2, whereas in the publication made in the hindi newspaper on 30.01.2018, the publication agency has wrongly mentioned the Khasra

No. as 384 (k) and 455/2/2 which is on account of a typographical error.

06. Thereafter, while continuing the recovery proceedings under the SARFAESI Act, the Petitioner bank on 19.04.2018 preferred an application under section 14 of the SARFAESI Act before the respondent No.1. The said case was registered as case bearing no. 89/B- 121/2017-2018. At the time of filing the said application under section 14, seeking possession of the mortgaged property, instead of Khasra No. 445/2/2 (of the mortgaged property), Khasra No. 455/2/2 was wrongly mentioned. The said error was on account of a bonafide typographical mistake and was evident on the face of the record.

07. That, the Respondent No.1, after hearing the said case bearing no. 89/B-121/2017-2018, vide its Order dated 24.04.2019 allowed the application under section 14 of the SARFAESI Act filed by the Petitioner and further directed the Sub-Divisional Officer, Manawar to assist the petitioner bank in taking over the actual physical possession of the mortgaged property. On account of the said typographical error, even in the Order dated 24.04.2019 the Khasra No. of the mortgaged property was wrongly mentioned as '455/2/2' instead of '445/2/2.

08. That, upon noticing the said bonafide error in the Order dated 24.04.2019, the present petitioner on 08.04.2021 made a request before the Respondent No. I seeking rectification of the Khasra No. wrongly mentioned as 455/2/2 in the Order dated 24.04.2019. The respondent No. 1 did not consider the said request and therefore on 31.08.2021, the petitioner filed an application before the Respondent No.1 informing about the said inadvertent error in the Order dated 24.04.2019 and sought necessary corrections to the effect that the Khasra No. mentioned as 455/2/2 (wrongly mentioned) to be rectified and be read as 445/2/2. On the said application, a fresh case came to be registered bearing no. RCMS/76/21-22/B-121 (Security).

09. That the respondent No.1 vide its Order dated 18.10.2021 (impugned here-in) rejected the said application for correction filed by the Petitioner on the ground that the said error was itself a part of the application under Section 14 filed by the petitioner and thus, the respondent No. 1 was not required to make any corrections as sought by the petitioner bank.

10. This writ petition has been preferred on the ground that error pertaining to the khasra number of the mortgage land in the application under Section 14 filed before the respondent No.1 was on account of a typographical mistake which was bonafide. The said mistake was apparent on the face of the record and thus the respondent No.1 has grossly erred in not correcting the mistake which was bonafide.

11. The respondent No.3 (Guarantor) is the owner of the property situated at Khasra No.384 (k) and 445/2/2 Patwari Halka No.7, Old No.26 settlement No.359, Oppo. Mangala Devi Mandir, Dist. Dhar (M.P.) and the said property was mortaged with the bank towards the loan of respondent No.2. Therefore, there was no iota of doubt that the respondent No.3 is not the owner of survey No.455/2/2, nor, the survey No.455/2/2 was mortgaged with the petitioner Bank. Therefore, respondent No.1 has grossly erred in not correcting the order passed under Section 14 of the SARFAESI Act, 2002 dated 18.10.2021, which admittedly cannot be enforced because of wrongly mentioned Khasra number in the order dated 24.04.2019, which is a mistake, apparent on the face of the record.

12. The respondent No.1 has grossly erred in not appreciating the fact that the possession under Section 14 of the SARFAESI Act can only be obtained with regard to the property, which is mortgaged with the bank, and thus, it would be in the interest of justice to allow the said rectification sought by the petitioner in the order dated 24.04.2019.

13. The respondent No.1 has grossly erred in not correcting the order passed under Section 14, even when, this fact was brought to the knowledge of the respondent No.1 that the property situated at Survey No.455/2/2 was never mortgaged with the bank and the same has been wrongly mentioned due to some bonafide typographical mistake.

14. The respondent No.1 has grossly erred in rejecting the application for correction as the petitioner is a Nationalized Bank and public money is required to be recovered from the respondent No.2 and 3, who have deliberately failed to repay the loan amount alongwith interest. The respondent No.1 failed to appreciate that this is the only remedy available with the petitioner bank to recover the amount and if such error is not corrected the bank would not be in a position to recovery the outstanding amount by the sale of the mortgaged property.

15. The respondent No.2 who admittedly is a defaulter, would be benefited and encouraged for making such defaults. The mistake in the application under Section 14 of the SARFAESI Act, is due to human error, which can be corrected at any stage, in light of the documents already placed on record.

16. The correction sought in the order dated 24.04.2019 is necessary to be carried out as the petitioner Bank cannot recover their dues from the respondent No.2 and 3, which is nothing but the public money.

17. The respondent Nos.2 and 3 objected to the petition submitting preliminary objection that the petitioner has concealed material facts and material documents. Memo of writ petition suffers from suppressive facts as also has presented distorted facts . The petitioner has suppressed material fact that the earlier notice issued by the bank under Section 13(2) of the Act of 2002 has been quashed by the Debt Recovery Tribunal in Second Appeal No.238/2017. The petitioner bank has further

concealed the material fact that bank has already auctioned the subject property in sheer defiance of the cardinal directions as contend in the impugned order dated 24.04.2019. The valuation of the subject property as per the Sampada Software comes out to Rs.3,13,13,718/-. Conjoint reading of Annexure R/2 and R/3 reveals the fact that the reserve price of the subject property has been fixed by the bank as 33% of the Government guidelines. There is not even a silent whisper about the auction of the subject property by the petitioner bank. The petitioner has falsely submitted that typographical mistake has been committed by the petitioner Bank while filing the application under Section 14 of the Act whereas the petitioner bank has wrongly mentioned details of the secured assets in respect of which as per SARFAESI provisions have been invoked. Since the details of the secured assets in the basic notice and demand is itself wrong and divergent from the actual details, the petitioner Bank is estopped from seeking any change in the basic details of the secured assets in any subsequent proceedings under the code of Securitization.

18. The petitioner bank has not mentioned proper survey number of the subject property in the basic notice of demand and as such all the contentions, averments, excuses, reasons insofar as the same relate to typographical mistake or errors are not tenable. Provisions of Section 14 of the Act of 2002 do not confer any power whatsoever in the District Magistrate to review his own order passed under Section 14 of the Act. Thereafter, respondent No.2 filed the parawise reply to the remarks raised in the writ petition submitting that the facts mentioned are false and account has been wrongly classified as NPA. The respondent No.2 and 3 have relied the judgment passed in case of Shriram Housing Finance Limited Vs. State of Haryana and others reported in 20223 LiveLaw (PH) 38 and J. Samuel and others Vs. Gattu Mahesh and

others reported [2012] 1 S.C.R. 295.

We have heard the learned counsel for the parties and perused the record.

19. Vide order dated 18.10.2021, the respondent No.1/District Magistrate has rejected the application recording the finding that notice dated 30.01.2018 was published in Hindi Daily Newspaper and English Daily Newspaper mentioning security assets as Khasra No. No.384/1/(k) and Khasra No.455/2/2 and description of the property in order dated 24.04.2019 is according to the application. The Bank has initiated the proceedings with wrong description accordingly, it requires no correction.

20. The question arises whether the prayer sought before the respondent No.1 was within the purview of typographical error or review of order was sought in the grave of typographical error ?

21. The petitioner has relied in the case of Butto Bai and another Vs. Dumri (Civil Revision No.256/2023 decided on 07.02.2024) reported in 2024 LiveLaw (MP)30, wherein it has been held that if there is no dispute with regard to identity of disputed land then the mistake of mentioning Khasra No. 256 instead of Khasra No.165 in the plaint and accordingly passing decree may be rectified relying upon on the judgment passed in case of Appat Krishna Poduval Vs. Lakshi Nathiar, AIR 1950 Madras 751, Niyamat Ali Molla Vs. Sonargon Housing Cooperative Society Limited and others, (2007) 13 SCC , Bela Debi Vs. Bon Behary Roy, AIR 1952 Cal. 86 and Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan, (2003) 1 SCC 197.

22. On the contrary the respondents have relied on the judgments passed in case of Shriram Housing Finance Limited Vs. State of Haryana and others reported in 20223 LiveLaw (PH) 38 and submitted that the respondent No.1 after passing the order under Section 14 of the

SARFAESI Act has no jurisdiction to review or recall the the such order and referring J. Samuel and others Vs. Gattu Mahesh and others reported [2012] 1 S.C.R. 295 submitted that the correction sought by the petitioner does not fall within the purview of typographical error.

23. The record of the Writ Petition shows that vide Annexure P/2 the respondent No.3 has mortgaged his property as guarantee for the loan obtained by the respondent No.2 from the petitioner/Bank. The notice (Annexure P/5) as per Rule 8 (1) of the Security Interest (Enforcement), Rules, 2002 mentioned the correct survey number of the property and publication of the notice in English Daily Newspaper (Annexure P/6) also mentioned the correct survey number of the mortgaged property.

24. The notice published in the Hindi Daily Newspaper mentioned the survey No.455/2/2 instead of survey No.445/2/2. Same mistake was repeated in the application (Annexure P/7) under Section 14 of the SARFAESI Act preferred to District Magistrate, Dhar and consequently the same description was mentioned in order dated 24.04.2019 (Annexure P/8).

25. On perusal of the Annexure P-7 and Annexure P-8, it transpires that alongwith mention of survey No.455/2/2, boundaries of the property is also mentioned and description of the boundaries bears no mistake. Accordingly, security asset is identifiable and statutory obligation enjoined upon the CMM/DM is to verify the compliance of all the formalities by the secured creditor and after being satisfying in that respect only, it is expected to pass the order. Accordingly, the respondent No.1 is also duty bound to verify the fact that the application for taking possession is mortgaged and possession is not sought of the property that was not mortgaged.

26. 'Review' means process under which the Court in certain

circumstances can re-consider its own judgment. It is judicial re- examination of the case by the same Court by the same Judge. The application preferred before the respondent No.1 was not for re- examination or re-consideration of the its own judgment but it was only for correction in one survey number of the secured asset, the boundaries of which and other details were also available and the property is identifiable. Accordingly, it is an error or mistake arising from accidental slip or omission and may be rectified at any time. If the mistake is not corrected then it may affect the property that was not mortgaged but mentioned in the impugned order. In case of J. Samuel (supra) the omission was with reference to specific plea which is mandatory in terms of Section 16 (C) of Specific Relief Act, 1963 and was running into 3-4 sentence so that was not considered as typographical error whereas in this case only correction of Khasra number of which boundaries are correctly mentioned is sought to be corrected. Accordingly, the case of J. Samuel (supra) does not apply in this case.

27. In light of above discussion, the order dated 18.10.2021 passed by respondent No.1 is not sustainable and accordingly, is hereby set aside. The respondent No.1 is directed to decide the application (Annexure P/9) as discussed above. Accordingly, Writ Petition is allowed and disposed off.

                         (S. A. DHARMADHIKARI)                            (GAJENDRA SINGH)
                                  JUDGE                                        JUDGE


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