Hon'ble Kashi Nath Pandey,J.
Sri Anadi Krishna Narayana has accepted notice on behalf of respondent Nos.1 and 2 - Bank of Baroda.
Issue notice to respondent No.3. Steps within a week.
All the respondents will file counter affidavit within three weeks. Rejoinder affidavit, within one week thereafter.
List on 3.5.2011.
It is alleged that the petitioner's husband had taken commercial loan by way of cash credit limit from the Bank of Baroda, Branch Muratganj, District Kaushambi. The husband of the petitioner died on 10.9.2009. The death certificate issued by the Registrar Birth & Death, Nagar Panchayat, Barwari, District Kaushambi dated 20.11.2009 is Annexure-1 to the writ petition.
It is alleged that initially the Bank instituted a Civil Suit No. 62 of 2010 (Bank of Baroda Vs. Rama Shanker Verma) against the husband of the petitioner, to recover the loan amount. It is admitted in the suit that the loan was taken by the husband of the petitioner by depositing original title deed (sale deed), dated 6.11.1984, of the house owned by the borrower situate in Village & Post Singhiya Amad Karari (Nai Bazar), Bharwari, Tehsil Sirathu, Pargana - Kara, District Kaushambi.
It is stated that the suit is pending, and in the meantime proceedings were taken by the Bank under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002.
It is alleged that no notice was served on the petitioner nor any demand notice was issued against the petitioner under the SARFAESI Act and the mortgaged property was sold in auction on 14. 12.10.
Learned counsel appearing for the Bank submits that the mortgaged property was sold for a sum of Rs.5,30,000/- to respondent No.3 - Sri Amit Kesarwani in proceedings initiated against the husband of the petitioner under the SARFAESI Act and the sale certificate was issue to respondent No. 3 on 22.2.11. He produced copy of the sale certificate.
Ordinarily, this Court is not entertaining writ petition against the action taken under the SARFAESI Act, at the first instance, in view of the decision of the Apex Court in United Bank of India Vs. Satyawati Tondon and others, SLP (C) No.10145 of 2010 decided on July 26th, 2010, holding that the statutory remedy of filing an appeal before the Debts Recovery Tribunal, provided under Section 17 of the Act must be availed and exhausted.
In the present case, prima facie, we find that the borrower had died on 10.9.2009. The Bank has filed a suit against a dead person in the year 2010, and thereafter initiated proceedings under the the SARFAESI Act. The entire proceedings of sale and its confirmation under the SARFAESI Act against a dead person are nonest proceedings and are liable to be set aside.
In the circumstances, sale of the house and the sale certificate dated 22.2.2011 issued by respondent Bank in favour of respondent No.3 shall remain stayed. If the petitioner has not been dispossessed from the house in question, until today, the possession shall not be handed over to the purchaser.
Order Date :- 30.3.2011 nethra