IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1646 of 2010 Ramesh Kumar S/o Late Shiv Chandra Prasad, R/o N.K.Lal Road, Near Dukharni Mandir, P.S. Kotwali,Distt-Gaya……….Petitioner. Versus 1. The Authorised Officer, Union Bank Of India, Nodal Regional Office, Nasheman Bhawan Frazer Road, Patna 2. The Deputy General Manager, Union Bank Of India, Nasheman Bhawan, Frazer Road, Patna 3. Union Bank of India, Dhani Tola Branch,Gaya through its Manager. 4. Smt. Kumkum Singh W/o Ved Prakash Singh, R/o West Gate of Tilha Dharmshala, Azad Bhawan, P.S. Civil Lines, Distt-Gaya. ……Respondents. For the petitioner : Mr. Ramakant Sharma, Sr. Advocate with Mr. Rajesh Kumar, Advocate. For the Bank : Mr.Anup Kr.Sinha, Advocate. For respondent no.4 : Mr. Shivendra Kumar Roy, Advocate. ---------------------------------- 08/ 01.12.2011 Heard learned counsel for the petitioner, learned counsel for the Union Bank of India and its authorities as well as learned counsel for the private respondent no.4. 2. This writ petition has been filed by the petitioner challenging order dated 30.11.2009 by which Appeal No.35 of 2009 filed by respondent no.4 was disposed of by the Debts Recovery Tribunal, Patna allowing her claim. 3. It is not in dispute that respondent no.4 was the borrower and due to non-payment of loan within time, the secured assets were declared Non-Performing Assets by the respondent-Bank, whereafter demand notice under section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for the sake of brevity) was sent to respondent no.4 on 31.05.2007 and subsequently possession notice under section 13 (4) of the Act was also sent to - 2 - respondent no.4 on 20.09.2007. 4. It is also not in dispute that the said order/notice was not challenged and much later the authorities sent auction notice to respondent no.4 on 09.08.2009, whereafter auction sale was held in favour of petitioner on 10.09.2009 and sale certificate was also issued in favour of the petitioner. 5. It further transpires that only thereafter Appeal No.35 of 2009 was filed by respondent no.4 against the proceedings and the impugned order was passed by the Presiding Officer of the Debts Recovery Tribunal on 30.11.2009 setting aside the orders/notices issued in the proceeding on the ground that notices were not published in vernacular language and the auction of properties situated in Gaya was held at Patna and the property sold was under valued. Against the said order the petitioner, who is the auction purchaser, filed the instant writ petition on 29.01.2010 and interim order of stay was passed by a Bench of this court on 05.02.2010. 6. Learned counsel for the petitioner has claimed that the grounds taken by the appellate authority while passing the said order were not legal and valid upsetting the entire proceeding adopted by the bank in accordance with law. He has also stated that although the petitioner was auction purchaser and a prayer was made in the appeal challenging the said auction sale, but the petitioner was not made a party in the said appeal filed by the borrower, namely respondent no.4. 7. Learned counsel for the private respondent no.4 vehemently contested the claim of the petitioner and stated that since - 3 - the issues decided by the appellate authority were very clear and in accordance with law and even the presence of the petitioner in the appeal could not have changed the said order, hence the non- impleadment of the petitioner in the appeal would have no adverse effect on the impugned order. He has also stated that irregularities were committed during the auction sale process and the provision of Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 was violated, hence the appellate authority was quite justified in passing the impugned order. It is also claimed that respondent no.4 has already deposited Rs.3,35,000.00 after passing of the impugned order of the Debts Recovery Tribunal, but due to order of stay passed in this writ petition he could not deposit any further amount. 8. Learned counsel for the respondent-Bank submits that sufficient opportunities were given at every stage to the borrower (respondent no.4) to liquidate the loan, but in spite of that she did not comply the legal requirements and hence the proceeding under section 13 of the Act and Rules 6 and 8 of the Security Interest (Enforcement) Rules, 2002 adopted by the bank was legal and proper and there was no occasion for the appellate court to interfere with the said procedure. 9. Considering the averments made by learned counsel for the parties and the materials on record, this court finds that it is true that in some cases even in absence of the concerned party, the court can exercise its jurisdiction and pass orders in accordance with law, but such steps should be far and few taken only in extremely rare cases. - 4 - 10. Furthermore, the appellate authority by its impugned order was passing an order which was upsetting the entire procedure adopted by the bank, hence even if the procedure adopted by the bank was not legal and proper in its view, the appellate court must have exercised caution while dealing with each and every point with reference to the provisions of law after impleading the main affected person, namely the auction purchaser. 11. In the said circumstances, the impugned order dated 30.11.2009 passed by the Debts Recovery Tribunal in Appeal No.35 of 2009 is hereby quashed and the matter is remanded to the Tribunal to consider the matter afresh after giving opportunities to the borrower, auction purchaser and the bank to place their respective cases and thereafter to decide the matter in accordance with law without being influenced either by the impugned order or by this order. Harish (S.N. Hussain, J.)