Telangana High Court

Sri. K V V Prasad Rao Gupta vs State Bank Of India on 12 February, 2021

Bench: A.Rajasheker Reddy, T.Vinod Kumar

              THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                                  AND
                THE HON'BLE SRI JUSTICE T.VINOD KUMAR

                            W.P.NO.27831 OF 2019

              O R D E R (Per the Hon'ble Sri Justice A.Rajasheker Reddy)

The respondent No.2 - company is the borrower of term loan from

the 1st respondent - Bank, which is the secured creditor. The petitioners

herein are the guarantors. As the 2nd respondent - company defaulted in

payment of loan installments, its loan account was declared as NPA, and

recovery proceedings were initiated under the provisions of Securitisation

and Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short 'the SARFAESI Act'). The 2nd respondent and

the petitioners were issued with demand notice dated 07.10.2014 under

Section 13(2) of the SARFAESI Act, and thereafter, as the amount

remained unpaid, possession notice dated 11.02.2015 under Section13(4)

was issued. However, the petitioners have disputed the issuance of

possession notice, and they also stated that procedure prescribed under

sub-rules 1 and 2 of Rule 8 of the Security Interest (Enforcement) Rules,

2002 (for short 'the Rules of 2002') was not followed by the Bank. The

same is denied by the 1st respondent - Bank in the counter affidavit.

However, this aspect will be considered during the course of judgment.

During the course of said recovery proceedings, the 1st respondent - Bank

issued sale notice dated 30.10.2019 under Rule 8(6) of the Rules of 2002,

and the same was published in Andhra Jyothi and Indian Express

newspapers, for auction of the properties on 12.12.2019. Challenging the

sale notice dated 30.10.2019, the petitioners, who are the guarantors, filed

the present writ petition.

In the affidavit filed in support of the writ petition, the petitioners

sought to dispute the disbursement of loan amount as per the terms and

conditions of the loan agreement, and their case is that as the loan was

not disbursed proportionately as per the terms and conditions of the loan

agreement, and as the repayment of loan installment was demanded

even before disbursement of the entire loan amount, it caused financial

crunch, and resulted in declaring the loan account of the

2nd respondent - company as NPA, and initiation of the proceedings

under the provisions of the SARFAESI Act. As the averments in this regard

are in the realm of disputed questions of fact, they are not being

reproduced from the writ affidavit. The further case of the petitioners is

that no possession notice under Section 13(4) was issued, and the

procedure prescribed under sub-rules 1 and 2 of Rule 8 of the Rules of

2002 was not followed. Their main grievance is that they were not served

with sale notice under Rule 8(6) of the Rules of 2002, and the period of

thirty days under the said provision is not given to them to exercise the

right of redemption under Section 13(8) of the SARFAESI Act, and there is

also no separate gap of 30 days between the sale notice, and the

publication of sale notice, as envisaged under Rule 9(1) of the Rules of

2002, and hence the sale notice is illegal and arbitrary, and contrary to

the law laid down by Apex Court in MATHEW VARGHESE v. M.AMRITHA1,

and, therefore, the same is liable to be set aside.

This court on 16.12.2019, while ordering notice before admission,

passed the following interim order:

"Heard counsel for the petitioners and Sri M.Srikanth Reddy, counsel for 1st respondent.

It is the contention of the petitioners that there is no service of notice under Section 8(6) {Sic Rule 8(6)} on the petitioners, who are guarantors, and the 30 days time fixed there under was not given to them to clear the loan before the sale. Prima facie this appears to be correct.

Therefore, the respondent shall not confirm the sale in favour of the highest bidder pursuant to the sale conducted on 12.12.2019 and shall not dispossess the petitioners from the subject property until further orders."

The 1st respondent - Bank filed counter affidavit and additional

counter affidavit seeking to vacate the interim order, disputing the

averments made by the petitioners with regard to disbursement of

amount under the loan agreement, and also the service of sale notice

under Rule 8(6) of the Rules of 2002. It is stated that since there is

alternative remedy of filing securitization application under Section 17 of

the SARFAESI Act, the present writ petition is not maintainable.

Adverting to the allegations of the petitioners with regard to not

issuing possession notice, it is stated that 1st petitioner is the Director of the

2nd respondent - Company, and the said company is represented by its

Managing Director. After classifying the loan account of the

(2014)5 SCC 610

2nd respondent - company as NPA, demand notice dated 07.10.2014 was

issued under Section 13(2) of the SARFAESI Act, 2002, calling upon the

borrower to pay the outstanding debt of Rs.23,36,90,191.52 ps., as on

24.07.2014, and the same was served on the petitioners, and also on the

2nd respondent - company, but the amount was not paid within the

stipulated period of 60 days.

The Authorized Officer of the Bank issued possession notice dated

11.02.2015 under the provisions of the SARFAESI Act in respect of the

secured assets at Kirshna District, Guntur District, Hyderabad District,

Rangareddy District and Mahabubnagar District, stipulating three different

dates for taking symbolic possession of the secured assets viz., 11.02.2015

for taking symbolic possession of the secured assets at Krishna and Guntur;

12.02.2015 in respect of the properties at Hyderabad and Rangareddy

Districts; and 13.02.2015 for taking symbolic possession of the secured

assets at Mahabubnagar. The symbolic possession notices were affixed

on the secured assets on 11.02.2015, 12.02.2015 and 13.02.2015

respectively, and the possession notices were published in Indian Express

and Andhra Jyothi newspapers dated 15.02.2015.

That the 2nd respondent challenged the possession notice dated

11.02.2015 in respect of the properties situated at Guntur and Kirshna

District by filing S.A.No.61 of 2015 on the file of Debts Recovery Tribunal at

Visakhapatnam, and obtained interim conditional stay, but has not

complied with the condition imposed by the Tribunal. The 2nd respondent

also filed S.A.No.147 of 2015 on the file of Debts Recovery Tribunal at

Hyderabad against the possession notice dated 11.02.2015 in respect of

the secured assets situated at Hyderbad, Rangareddy and

Mahabubnagar Districts, and obtained conditional interim order, but the

said order was also not complied with. The S.A.No.61 of 2015 on the file of

Debts Recovery Tribunal at Visakhapatnam was transferred to Debts

Recovery Tribunal - II Hyderabad, and renumbered as S.A.No.1392 of 2017

and S.A.No.147 of 2015 on the of Debts Recovery Tribunal, Hyderabad,

was renumbered as S.A.No.930 of 2017, on the file of Debts Recovery

Tribunal - II, Hyderabad. 2nd respondent also challenged the possession

notice dated 11.02.2015 before this court in W.P.No.145 of 2016, but

subsequently the same was withdrawn on 14.06.2017, with liberty to pursue

statutory remedies. However, the above stated securitization applications

were dismissed on 26.07.2018. The 2nd respondent again filed S.A.No.262

on the file of Debts Recovery Tribunal at Visakhapatnam, challenging the

proceedings initiated by the Bank under Section 14 of the SARFAESI Act,

2002, and obtained conditional interim stay on 15.07.2019, but failed to

comply with the said condition, and the said application is pending

disposal.

That prior to publication of the sale notice dated 30.10.2019, the

respondent No.1 - Bank issued notice dated 03.03.2015 under Rule 8(6) of

the Rules of 2002 to the petitioners, and to the 2nd respondent - company

/ borrower, through registered post, and the said notices were served.

Further, the respondent - Bank also issued notice dated 06.08.2019 under

Rule 8(6) of the said Rules to the petitioners and the 2nd respondent

through registered post. But the said notices were returned un-served with

endorsements 'unclaimed', 'intimation served', 'door lock' etc. Therefore,

the case of the 1st respondent - Bank, is that they followed the due

procedure under Rules 8(6) of the Rules of 2002, before publication of sale

notice dated 30.10.2019.

In the counter affidavit it is also stated that as the 2nd respondent

and its guarantors failed to repay the outstanding loan amount, the Bank

was constrained to file O.A.No.1767 of 2017 on the file of Debts Recovery

Tribunal - II at Hyderabad ,for recovery of a sum of Rs.23,36,90,191.52 ps.

together with interest and costs, and it was allowed with future interest

and costs, on 16.07.2018, but as the said amount was not paid, bank

continued the recovery proceedings under the provisions of the SARFAESI

Act.

With these averments, 1st respondent - Bank seeks to dismiss the writ

petition.

The auction purchasers were impleaded as respondents 3 to 5 and

they also filed counter affidavits seeking to vacate the interim stay

granted by this court.

No reply affidavit is filed by the petitioners denying the assertions

made in the counter affidavit and additional counter affidavit filed by the

1st respondent - Bank.

Heard Sri T.Vijay Kumar, learned counsel for the petitioners,

Sri M. Narender Reddy, learned Senior Counsel appearing for Sri M.Srikanth

Reddy, learned Standing Counsel for the 1st respondent - Bank, and

Sri T.Venkataramana and Sri Serinivas Chitturu, learned counsel for

implead respondents / auction purchasers.

The first allegation of the petitioners is that possession notice under

Section 13(4) of the SARFAESI Act was not issued and the procedure

prescribed under sub-rules 1 and 2 of Rule 8 was not followed by the Bank.

This allegation is denied by the 1st respondent - Bank in the counter

affidavit and in the additional counter affidavit, wherein, it is categorically

stated that they issued possession notice dated 11.02.2015 under

Section 13(4) of the SARFAESI Act, the said notices were also affixed on

the secured assets, and the notices with regard to taking of symbolic

possession of secured assets was also published in Indian Express and

Andhra Jyothi newspapers dated 15.02.2015. Further, in the counter

affidavits it is stated that the 2nd respondent represented by its Managing

Director, who is the 13th petitioner herein, challenged the said notice by

filing securitizations applications and also writ petition before this court.

These averments made in the counter affidavit and additional counter

affidavit, have not been denied by the petitioners by filing any reply

affidavit. Hence, the allegation in this regard is without any basis.

Further, the main grievance of the petitioners is that they were not

served with sale notice under Rule 8(6)of the Rules of 2002, and that they

were also not given 30 days period envisaged under the said provision, for

clearing the dues, and there is also no separate gap of 30 days between

the sale notice and the publication of sale notice as envisaged under

Rule 9(1) of the Rules of 2002.

To consider the above contention of the petitioners, it is necessary

to consider Rule 8(6) and Rule 9(1) of the Rules of 2002, and also

Section 13(8) of the SARFAESI Act, and the said provisions, to the extent

relevant, are extracted as under, for ready reference:

The Security Interest (Enforcement) Rules, 2002

8. Sale of immovable secured assets:

...

(6)The authorized officer shall served to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5); provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the locality by setting out the terms of sale, which shall include,--

....

9. Time of sale, issue of sale certificate and delivery of possession etc.-

(1) No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002:

13. Enforcement of security interest:

...

(8). Where the amount of dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets, --

(i) the secured assets shall not be transferred by way of lease assigned or sale by the secured creditor;

(ii) in case, any step has been taken by the secured creditor for transfer by way of lease or assignment or sale of the assets before tendering of such amount under this sub-section, no further step shall be taken by such secured creditor for transfer by way of lease or assignment or sale of such secured assets;

From the above provisions under Rule 8(6) it is clear that the

authorized officer of the Bank shall serve on the borrower a notice of thirty

days for sale of immovable property, and that if the sale of such secured

assets is by way of public auction, the Bank / secured creditor, shall cause

publication of such notice in two leading newspapers, one in vernacular,

language having sufficient circulation in the locality by setting the out the

terms of sale, mentioned in the said provision; and under sub-rule (1) of

Rule 9, such sale of immovable of property under these Rules shall not

take place before the expiry of thirty days from the date on which the

public notice of sale is published in newspapers as referred to in the

proviso to sub-rule (6), or notice of sale has been served to the borrower.

Further, under sub-section (8) of Section 13 of SARFAESI Act, if the

amounts due to the secured creditor together with all costs, charges and

expenses incurred by him is paid by the borrower before the date of

publication of notice for public auction, the secured asset shall not be

sold or transferred by the modes mentioned in the said provision.

The Apex Court in J.RAJIV SUBRAMANIYAN vs. PANDIYAS2, while

referring to its decision in MATHEW VARGHESE vs. M.AMRITHA KUMAR

(1supra), observed as under:

"13. This court in Mathew v. Vanghese case further observed that the provision contained in Section 13(8) of the SARFAESI Act, 2002 is specifically for the protection of the borrowers inasmuch as, ownership of the secured assets is a constitution right vested in the borrowers and the protected under Article 300-A of the Constitution of India. Therefore, the secured creditor as a trustee of the secured asset cannot deal with the same in any manner it likes and such an asset can be disposed of only in the manner prescribed in the SARFAESI Act, 2002. Therefore, the creditor should ensure that the borrower was clearly put on notice of the date and time by which either the sale or transfer will be effected in order to provide the required opportunity to the borrower to take all possible steps for retrieving his property. Such a notice is also necessary to ensure that the process of sale will ensure that the secured assets will be sold to provide maximum benefit to the borrowers. The notice is also necessary to ensure that the secured creditor or anyone on itself behalf is not allowed to exploit the situation by virtue of proceedings initiated under the SARFAESI Act, 2002.

Further a Division Bench of the erstwhile High Court of Judicature for

the State of Telangana and the State of Andhra Pradesh in the decision

reported in SRI SAI ANNADATHA POLYMERS v. CANARA BANK

MADANAPALLE3, held as under:

(2014)5 SCC 651

2018(5) ALD 180 (DB)

11. However, the amended provisions of Section 13(8) of the SARFAESI Act bring in a radical change, inmuch as the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public action under Rule 9(1) of the Rules of 2002. In fact, the right of redemption available to the borrower under the present statutory regime stands drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the Rules of 2002 and not till completion of the 'sale or transfer' of the secured asset in favaour of the auction purchaser. However, it is significant to note that Rule 8(6) of the Rules of 2002 still continues to remain the same and thereunder, the authorized officer of the secured creditor must necessarily serve upon the borrower a notice of thirty days for sale of the immovable secured asset taking recourse to one of the options available under Rule 8(5) thereof.

...

13. . . . To sum up, post-amended scenario inevitably requires a clear thirty day notice period being maintained between issuance of the sale notice under Rule 8(6) of the Rules of 2002 and the publication of the sale notice under Rule 9(1) thereof, as the right of redemption available to the borrower in terms of Rule 8(6) of the Rules of 2002, as pointed out in Mathew Varghese's case (supra) stands extinguished upon publication of sale notice under Rule 9(1).

Thus from the above judgments it is clear that under Rule 8(6) of the

Rules of 2002, the petitioners are entitled for a thirty day notice period

enabling them to clear the loan and to redeem the property as

envisaged under Section 13(8) of the SARFAESI Act, and that if they fail to

repay the amount within the stipulated period, after expiry of said period

of 30 days, the secured creditor is entitled to issue publication of sale

notice under Rule 9(1), and that on publication of such notice, the right of

the borrower to redeem the property stands extinguished.

In the present case, the allegation of the petitioners is that they

were not served with sale notice as envisaged under Rule 8(6) of the Rules

of 2002 giving 30 days notice period to clear the loan and to redeem the

property before sale. This allegation is denied by the respondent No.1 -

Bank. In the additional counter affidavit, it is categorically stated that the

prior to publication of sale notice dated 30.10.2019, the respondent - Bank

issued sale notice dated 03.03.2015 under Rule 8(6), to the petitioners and

the 2nd respondent - company, through registered post, and the same

were served. It is further stated that the Bank also issued sale notices

dated 06.08.2019 under Rule 8(6) through registered post, but the same

were returned un-served with endorsements 'unclaimed', 'intimation

served' 'door lock' etc. The copies of the returned postal covers with the

above stated endorsements, are filed along with the additional counter

affidavit.

As per the above averments made in the counter affidavits, it is to

be seen that the prior notices dated 03.03.2015 sent by the Bank, were

served on the petitioners, but the subsequent notice dated 06.08.2019

were returned un-served with postal endorsements 'unclaimed',

'intimation served', 'door locked' etc.

The Apex Court in K.BHASKARAN vs. SANKARAN VAIDHYAN BALAN4

while considering the 'service of notice' before filing petition under

Section 138 of Negotiable Instruments Act, 1881,held as under:

It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [vide Harcharan Singh v. Smt. Shivrani and Ors., [1981] 2 SCC 535, and Jagdish Singh v. Natthu Singh, [1992] 1 SCC 647.] Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus :

1999 Supp (3) SCR 271

"27. Meaning of service by post. - Where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression `serve' or either of the expressions `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post"

No doubt Section 138 of the Act does not require that the notice should be given only by `post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.

Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption.

In the present case, the learned Standing Counsel for the

respondent - Bank submits that demand notice under Section 13(2) of the

SARFAESI Act and the earlier sale notice dated 3.3.2015 were sent to the

addresses mentioned in the loan agreement, and they were served, but

the subsequent notices dated 06.08.2019 issued under Rule 8(6) of the

Rules of 2002, to the same addresses, were returned un-served with postal

endorsements 'unclaimed' 'door locked' etc., and hence it amounts to

service.

As per the judgment of the Apex Court referred to above(2 supra),

since the respondent - Bank sent notices to the correct addresses of the

petitioners as mentioned in the loan agreement, it has to be presumed to

have been served, unless the petitioners proves that they were not really

served and that they were not responsible for such non-service. But in the

present, the petitioners have not even chosen to file any reply affidavit

disputing the claim of the respondent - Bank with regard to service of

notice. Hence, it has to be presumed that notices dated 06.08.2019

issued under Rule 8(6) of the Rules of 2002, have been served on the

petitioners.

The Apex court in T.N.PARAMESWARAN UNNI vs. G.KANNAN AND

ANOTHER5 held that "15. This Court in a catena of cases has held that

when a notice is sent by registered post and is returned with postal

endorsement "refused" or "not available in the house" or "house locked" or

"shop closed" or "addressee not in station", due service has to be

presumed." In view of the above facts and circumstances and the law

laid down by Apex Court, it has to be presumed that the sale notice

dated 06.08.2019 issued by the Bank under Rule 8(6) of the Rules of 2002, is

served on the petitioners. Further the impugned sale notice is dated

30.10.2019, and the same was published in Andhra Jyothi and Indian

Express newspapers for auction of the secured assets on 12.12.2019. This

shows that there is clear compliance with Rules 8(6) of the Rules of 2002.

Further, it is to be seen that the 2nd respondent - company, which is

the borrower, is represented by its Managing Director Mr. Kolla Koteshwar

Rao, r/o flat No.102, Sai Srinivasam Apartments, Srinivas Nagar (West) S.R.

(2017)5 SCC 737

Nagar, Hyderabad. The said Kolla Koteshwar Rao s/o K.Narsimha Rao, is

the 13th petitioner. Further, in the additional counter affidavit it is stated

that the 1st petitioner is the Director of the 2nd respondent - company.

The 2nd respondent - company represented by its Managing Director

Sri Kolla Koteshwar Rao, filed securitization applications referred to above,

and in the counter affidavit and in the additional counter affidavit by the

respondent - Bank, it is categorically stated that the 2nd respondent also

obtained conditional interim orders in the said securitizations applications,

but failed to comply with the same. Further, the O.A.No.1767 of 2017 filed

by the Bank on the file of Debts Recovery Tribunal - II, Hyderabad was

allowed on 16.07.2018, but as the amount remained unpaid, the bank

continued the recovery proceedings initiated under the provisions of the

SARFAESI Act. These facts have been conveniently omitted in the

averments made in the affidavit filed in support of the writ petition, and

the petitioners have camouflaged the grievance by merely stating that

they were not served with sale notice under Rule 8(6) of the Rules of 2002

and that they were not provided with 30 days time fixed under the said

provision to clear the loan and to redeem the property, to give an

impression to this court, the action of the respondent -bank being in

violation of principles of natural justice. Thus there is clear suppression of

material facts with regard to filing of securitization applications.

The Apex Court in K.D.SHARMA v. SAIL6, while dealing with power

and duty of the writ court held that where petitioner makes false

statement or conceals material facts or misleads the court, the court may

dismiss the writ petition at the threshold without considering the merits of

the claim and that the court would be failing in its duty if it does not reject

the petition on the said ground. The Apex Court further held that

petitioner in such a case is also required to be dealt with for contempt of

court for abusing the process of court. The relevant portion of the

judgment is as under:

34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with the clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.

...

36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

...

38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts".

(2008)12 SCC 481

39. If the primary object as highlighted in Kensington Income Tax Commrs.

{(1917)1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)} is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent the abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."

Having regard to the facts and circumstances of the case, it is clear

that the grounds urged by the petitioners that they were not served with

sale notice under Rule 8(6), and 30 day notice period fixed there under

was not given to them to clear the loan, and to redeem the property, is

found to be not correct, and the Bank has followed the due procedure

as envisaged under the provisions of SARFAESI Act, and the Rules of 2002,

and further, the petitioners have suppressed the material facts with regard

to filing of securitization applications before the Debts Recovery Tribunal,

and the facts and circumstances manifestly disclose that they are

resorting to dilatory and subterfuge tactics, to see that the recovery

proceedings initiated by the Bank, are defeated. This cannot be

appreciated. For suppression of material facts, as per the law laid down