Karnakata Bank Limited Vs Mahadeshwara Bricks (DRAT Chennai)
DRAT Chennai held that measures taken under SARFAESI Act for sale of property is not in accordance with also since affixture of the impugned sale notice was not proved by the appellant bank and valuation of the property was not properly done.
Facts- This appeal is filed under Section 18 of the SARFAESI Act, against the order passed in SA No.465/2012 by Learned Presiding Officer, DRT, Bangalore on 21.10.2013. Respondents 1 and 2, who are the applicants in the said SA, challenged the possession notice dated 10.12.2010, sale notice dated 12.9.2011 and the sale certificate dated 29.10.2011 and by the said order, Learned Presiding Officer, allowed the SA. Aggrieved by the order, this appeal is filed by the appellant bank. Notably, respondents 1 and 2 are the borrowers.
Conclusion- In Judgment reported in 1965 SCC Online SC 111 in re, Bhagwati Prasad Vs. Chandramaul it is seen that if the parties knew that particular plea is involved in the Trial, then, mere fact that that plea was not expressly taken in the pleadings would not necessarily disentile the party from relying upon it, if it is satisfactorily proved by evidence. Here, in this case, it is primarily the duty of the bank to ensure that measures have been taken in accordance with law, irrespective of omission to plead any defect in the measures taken. Thus, it is evident, as discussed above, that affixture of sale notice was not proved, valuation of the property was not properly done and undervalued and property was sold in excess.
