# Dayanath Pandey v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 335
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-18
- **Case number:** Civil Misc. Writ Petition No. 53210 of 2007
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dayanath-pandey-v-state-of-u-p-and-others-41119
- **Pages:** 3

## Headnote

Sri H.R. Misra
Sri K.M. Misra
Sri Ghanshyam Joshi
Sri T. Verma
S.C.

Securitisation
of
Financial
Assets
&
Enforcement of Security Interest Act,
2002 Section 13 (4)-Auction sale of
house made on 12.10.07-confirmed on
next date-prior to clear expiry of 30
days-period of 30 or 60 days to be
counted excluding the date of issuance
of notice-held-entire sale proceeding
illegal-quashed.

Held: Para 4

Thus, the period of thirty or sixty days
was to be counted excluding the date of
issuance of notice. Admittedly, the sale
certificate was issued on 26.10.2007 and
sale deed was executed on 5.11.2007 in
favour of the respondent no.3, in spite of
order dated 30.10.2007. The entire safe
proceedings
were
illegal.
This
was
prima-facie disobedience of order of the
Court.

## Text

1 All] Dayanath Pandey V. State of U.P. and others
335
in the present writ petition cannot be
granted to the petitioners. The petitioners
may avail their remedy under section 198
(4).

11. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 53210 of 2007

Dayanath Pandey

...Petitioner
Versus
State of U.P and others ...Respondents

Counsel for the Petitioner:
Sri Anand Kumar Srivastava

Counsel for the Respondents:
Sri H.R. Misra
Sri K.M. Misra
Sri Ghanshyam Joshi
Sri T. Verma
S.C.

Securitisation
of
Financial
Assets
&
Enforcement of Security Interest Act,
2002 Section 13 (4)-Auction sale of
house made on 12.10.07-confirmed on
next date-prior to clear expiry of 30
days-period of 30 or 60 days to be
counted excluding the date of issuance
of notice-held-entire sale proceeding
illegal-quashed.

Held: Para 4

Thus, the period of thirty or sixty days
was to be counted excluding the date of
issuance of notice. Admittedly, the sale
certificate was issued on 26.10.2007 and
sale deed was executed on 5.11.2007 in
favour of the respondent no.3, in spite of
order dated 30.10.2007. The entire safe
proceedings
were
illegal.
This
was
prima-facie disobedience of order of the
Court.

(Delivered by Hon'ble V.M. Sahai, J.)

1. We have heard Sri Anand Kumar
Srivastava,
learned
counsel
for
the
petitioner, learned Standing Counsel for
respondent no.1, Sri H.R. Misra, learned
Senior Counsel assisted by Sri K.M.
Misra for respondent no.2 and Sri
Ghanshyam Joshi for respondent no3.

2. By way of this writ petition, the
petitioner
has
challenged
recovery
proceedings initiated against him by the
respondent no.2. He has sought relief for
quashing the entire recovery proceedings
and to direct the respondent no.2
Allahabad Bank to accept payment
desired to be made by him.

3. It appears from the record that the
petitioner applied to respondent no.2 for
loan amounting to Rs. 5 lacs only for
construction of house. The loan was
sanctioned and amount of Rs.4,39,971/
was paid to the petitioner, which was to
be refunded in 180 monthly instalment.
The petitioner paid some amount from
time to time but he could not regularly
pay the instalments due to personal
difficulties. The respondent no.2 started
recovery proceedings and put his house to
auction. It has also been alleged in the
writ petition that the petitioner is ready to
deposit the entire amount due. The
respondent no.2 has also taken similar
plea that the petitioner did not repay the
loan and committed default, therefore,
recovery proceedings were initiated under
Securitisation
and
Reconstruction
of
Financial Assets and Enforcement of
336 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Security Interest Act, 2002 (hereinafter
referred to as Act).

Annexure-2 to the writ petition is
notice under section 13(2) of the Act. This
was dated 9.7.2007. Admittedly, this was
served on the petitioner on 13.7.2007.
Another notice dated 13.9.2007 was sent
to the petitioner under Section 13 (4) of
the Act read with Rule 6(2) and Rule 8(6)
of The Security Interest (Enforcement)
Rules, 2002 (hereinafter referred to as the
Rules). After giving notice under Section
13(2) of the Act, possession of house of
the petitioner was taken by the Bank on
10.9.2007. The period of sixty days given
in the notice under Section 13(2) of the
Act was to be counted from the date of
notice and not from the date of service.
However, this fact was not material in the
present case because notice under Section
13(2) of the Act was issued on 9.7.2007
and same was served on the petitioner on
13.7.2007 and possession was taken on
10.9.2007, meaning thereby, possession
was taken after sixty days of issuance of
notice. The notice under section 13(4) of
the Act was dated 13.9.2007 and the
house of the petitioner was put to auction
on 12.10.2007. As required under Rule
6(2) and 8(6) of the Rules, a clear period
of thirty days was to be given to the
petitioner for paying dues. This fact was
mentioned in the notice under section
13(4) of the Act. In pursuance to that
notice, sale proclamation was issued in
the
news
paper
'Amar
Ujala'
on
13.9.2007, copy of which is paper No. 35
in the application dated 5.2.2008, which is
part of affidavit of Sri M.S. Saroha,
Assistant General Manager of respondent
no.2. This publication shows that notice
was published on 13.9.2007 and date
fixed for sale was 12.10.2007, meaning
thereby date for sale was fixed on 29th day
from the date of publication, which was
clearly against the law. Admittedly, sale
was made on 12.10.2007 and it was
confirmed on the next day i.e on
13.10.2007, that was also illegal because
clear period of thirty days from the date of
notice was to be given to the petitioner for
making payment as required by the law,
but
unfortunately
entire
sale
deed
proceedings were finished within thirty
days of publication of the notice. The
computation of period of notice had to be
made under the provisions of Section 9 of
U.P. General Clauses Act 1904 which
runs as under:

Section
9.
Commencement
and
termination
of
time-In
any
(Uttar
Pradesh) Act it shall be sufficient, for the
purpose of excluding the first in a series
of days or any other period of time, to use
the word "from" and for the purpose of
including the last in a series of days or
any other period of time, to use the word
"to".

4. Thus, the period of thirty or sixty
days was to be counted excluding the date
of issuance of notice. Admittedly, the sale
certificate was issued on 26.10.2007 and
sale deed was executed on 5.11.2007 in
favour of the respondent no.3, in spite of
order dated 30.10.2007. The entire safe
proceedings were illegal. This was primafacie disobedience of order of the Court.

5. Vide order dated 16.1.2008,
31.1.2008 and 6.2.2008, we had directed
the Bank authorities to show cause why
their public accountability should not be
fixed and they should not be taken to task
for committing the aforesaid illegalities.
In response to our notices, Sri M.S.
Saroha, Assistant General Manager, Sri
P.K. Mallick, Senior Manager and Sri
1 All] Shahzad Ahmad Khan and others V. Mohd. Ahmad and others
337
Praven
Kumar,
Manager
(Law)
of
respondent no.2 have filed affidavits
tendering unconditional apology. Not
only this, respondent no.3 Sanjiv Kumar,
the purchaser of the house has also filed
affidavit praying for cancellation of sale
deed to avoid further complications. He
has made request only for refund of price
of house, stamp duty and registration
charges etc. From the affidavit of the
Bank authorities, we are satisfied that
though they have committed mistake but
there was no malafide on their parts.
There was technical bonafide mistake in
computing the period of notices and sale
etc.
Therefore,
we
accept
their
unconditional apology and do not pass
any order against them. Any observation
made against them shall not be treated as
adverse.

6. The petitioner is ready to pay the
amount due. The respondent no.3 has no
objection to it. Admittedly, the petitioner
has already deposited first and second
instalment as directed in our order dated
30.10.2007.

7. The writ petition is allowed and
entire recovery proceedings is quashed.
The sale deed of the disputed house dated
5.11.2007
executed
in
favour
of
respondent no.3 is also cancelled. The
respondent no.3 will get back the amount
paid by him as price of house and other
charges as under:

(a) Rs.5,10,000/ price of house.
(b) Rs.72,700/ stamp fee.
(c) Rs.5020/ registration fee.
(d) Rs.1000/ Misc. charges.

8. Thus, total amount comes to
Rs.5,88,720/- (Five lacs eighty eight
thousand seven hundred twenty only).
The bank authorities agree that they will
pay the said amount to respondent no.3
within fifteen days.

9. The petitioner will repay the
remaining amount of loan in two
instalments as follows:
(i) 1st instalment by 15th May 2008.
(ii) IInd instalment by 15th August, 2008.

10. It is made clear that in case of
default in the payment of any instalment,
the Bank shall be at liberty to realize the
entire dues according to law.

11. Let a copy of this order be sent
to
the
sub-Registrar
concerned
for
information and necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

F.A.F.O. No. 348 of 2008

Shahzad Ahmad Khan and others

...Third Party/Appellants
Versus
Mohd. Ahmad and others

...Plaintiffs/Respondents

Counsel for the Appellants:
Sri Syed Wjaid Ali

Counsel for the Respondents:
Sri Rakesh Kumar
Sri K.L. Grover
Sri Ramesh Singh
Sri A.K. Singh

Code of Civil Procedure-Order 1 Rule 3,
10 (2) Order 22 rule 10-impleadment of
third party-during pendancy of suit
purchased the disputed property-after 8