IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: VADODARA

SPECIAL CIVIL APPLICATION NO. 10388 OF 2014

Jamnadas Vishnubhai Patel & Ors. Petitioners

Versus

Cosmos Coop. Bank Ltd. Respondent

LIST OF EVENTS WITH DATES

SR. DATE EVENTS PAGE

NO. NO.
1. 1998 Dinesh Pharmaceuticals Pvt.
Ltd. availed term loan facility as
well as Bill Discounting facility
from Unnati Coop. Bank Ltd.
against which Petitioners gave
personal Security by mortgaging
their personal properties to the
tune of Rs.50,00,000/-.
Petitioner No.1 is the Director of
Dinesh Pharmaceuticals Pvt.
Ltd. (Borrower)
Petitioner No.2 to 4 are the
guarantors
02.09.9 LOAN ACCOUNT DETAILS
8
1. LOAN A/C NO.SIL 2/1
Availed loan of Rs. 5O Lakh
Moje Nandesari Industrial
 Estate Shade No.129/4
mortgage by way of mortgage
deed
The said property is already
sold and the amount of sale is
already realised by the bank
and this transaction is not in
dispute between the parties.
2. 25.02.9 LOAN ACCOUNT DETAILS 44 of
9 the
2. LOAN A/C NO.SIL2/2 Memo
Availed loan of Rs.50 Lakh of
Petition
Registered Mortgage deed
(Annexure-H) was executed by
the owners of the property in
favour of Unnati Coop. Bank
Ltd. wherein as per the said
mortgage deed only ground and
first floor of the property was
mortgaged each floor consisting
of construction of 2200 Sq. feet
with total construction of 4400
Sq. feet. At the time of
mortgage, property documents
only of Ground and 1st floor was
given as mentioned in the said
mortgage deed. This property is
the subject matter of the
present litigation.
3. 16.06.0 Unnati Coop. Bank Ltd. got
6 merged with the Respondent
Bank as mentioned in notice
issued u/s. 13(2) of the
SARFAESI Act to the Petitioners.
4. 02.11.0 Respondent bank issued notice 16 of
 6 (Annexure-A) u/s. 13(2) of the the
SARFAESI Act to the Petitioners Memo
for Rs. 361.63 Lakhs of
Petition
The said notice is issued prior
to the amending act which
brought into force w.e.f January
2013, hence any action taken
by the bank against borrower
prior to the Amending Act
under the SARFAESI Act cannot
be maintainable as the said
notice is illegal and null and
void.
5. 27.02.0 Bank took symbolic possession
7 of the mortgage property as per
section 13(4) of the SARFAESI
Act on 19.03.07. (Annexure-F)

As stated by bank in its letter

dated 27.12.12 at page no.32 of
the memo of petition and in
panchnama dated 27.12.12 at
page no.34 of the memo of
petition.
6. 24.05.1 Bank accepted OTS proposal 20 of
0 (Annexure-B) of the company to the
the tune of Rs.250 Lakh Memo
towards full and final of
settlement. Petition
7. 25.06.1 Letter to bank paying Rs. 26 of
0 4,50,000/- vide cheque the
no.000034 OTS instalment for Memo
the month of July,2010 of
Petition
8. 14.12.1 Company paid total of Rs. 25 22 of
 0 Lakh as per OTS proposal the
(Annexure-C) Memo
of
Petition
9. 07.03.1 Rs. 4,00,000/- paid vide 21 of
1 Cheque No.000329 dated the
07.03.11 of Bank of Baroda Memo
towards OTS Proposal of
(Annexure-C) Petition
10. 14.11.1 Letter to bank as company 28 of
1 started depositing monthly OTS the
instalment but the business of Memo
the company did not work as of
per plan hence the company Petition
unable to pay as per OTS
settlement. Company paid total
Rs. 54 Lakhs for the year 2010-
2011 as per OTS. Therefore, the
company sort permission (NOC)
from bank to permit the
company to sell the mortgage
residential property to clear
dues as per OTS as earlier
company did by selling the
GIDC Nandesari Plot for Rs. 24
Lakh as against Rs. 12 Lakh
offered. As if the company sell
the said property will fetch
maximum price of property
which is in the interest of bank.
(Annexure-D).

11. 25.11.1 Bank issued NOC valid up to 31 of

1 31.12.11 to the company giving the
permission to company to sell Memo
the property. (Annexure-E). of
 Petition
12. 27.12.1 Bank issued a notice thereby 32 of
2 restoring possession of the the
mortgaged property to itself and memo
cancelling the custodianship of of
the Petitioner No.1. (Annexure- petition
F)
13. 15.01.1 Possession intimation notice to 37 of
3 take physical possession of the
mortgage property wherein it memo
has been clearly mentioned of
about secured asset consisting petition.
of ground and first floor.
(Annexure-F)
14. 28.01.1 Possession notice as per rule 8 39-40
3 (1) wherein it has been clearly of the
mentioned about secured asset memo
consisting of ground and first of
floor. (Annexure-G) took petition
physical possession of the
secured asset and inventory
was carried out.
15 21.02.1 Public Auction notice for sale of 61 of
3 entire property which was never the
mortgage at the reserve price of memo
Rs.268.43 Lakhs to be held on of
25.03.13 (Annexure-I) petition
16 01.03.1 Notice of sale of secured asset 55 of
3 issued by bank wherein entire the
property was put for auction memo
which was never mortgaged. of
Also it has stated that bank petition
shall fetch maximum price out
of sale not below the reserve
price of Rs.268.43 Lakh
(Annexure-I).
17 15.03.1 Objection of the Petitioner 51 of
3 against the sale of said property the
wherein it has been clearly memo
stated by the petitioner that of
bank has taken entire petition
possession of the said property
i.e. 2nd, 3rd floor and stair cabin
which was never mortgage and
bank has put entire property
including the one which was
never mortgage for public
auction to be held on 25.03.13
(Annexure-I).
18 20.03.1 Vague reply of bank to the 59 of
3 objections of the petitioner the
through its advocate memo
of
petition
19. 28.03.1 Sale deed executed by bank to 68 of
4 himself of entire property which the
was never mortgage at Rs. 255 memo
Lakh which is less than reserve of
price as mentioned in public petition
auction notice which is in clear
violation of Rule 8 and 9 of the
Security Interest (Enforcement)
Rules, 2002. Moreover, bank
cannot sale secured asset by
way of private treaty without
written consent of the borrower
and also bank cannot have
acquired secured asset without
prior permission of the Reserve
Bank of India as done in the
present case.