Form J(1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present : The Hon’ble Justice Bibek Chaudhuri CRR 2955 of 2022 Samasth Infotainment Pvt. Ltd. and Ors. Vs. The State of West Bengal & Ors. For the Petitioners : Mr. Rajdeep Majumder Mr. Moyukh Mukherjee Mr. Pritam Ray Mr. Abhijit Singh Heard & Judgment on: 12.08.2022 Bibek Chaudhuri, J. This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure. Applying the ratio laid down in Ibrat Faizan versus Omaxe Buildhome Private Limited (Civil Appeal No.3072 of 2022), decided on 13th May, 2022, this application is treated as an application under Article 227 of the Constitution of India for determination of issues of law involved in the instant revision. Before embarking upon the legal issues it would be profitable to succinctly describe the factual background. The opposite party Nos. 2 to 4 filed a consumer complaint which was registered as Case No.45 of 2021 against the petitioners before the District Consumer Disputes Redressal Commission (DCDRC) praying for the following reliefs:- (a) A direction upon the Opposite Parties to hand over the possession of the said flats and car parking spaces after taking the balance consideration amount from the complainant. The complainants are ready to pay the balance amount as per agreement. (b) A direction upon the Opposite Parties to do the Registration of the said flats and also the said car parking spaces And In the alternative Registration through the machineries of this Ld. Forum. (c) A direction to the Opposite Party to pay a compensation amount for Rs.Thirty (30) lakhs for demanding GST, interest etc. illegally from the complainants; 2 (d) A direction upon the Opposite Parties to furnish the Completion Certificate to the complainants issued by the competent authority. (e) For all costs. (f) To what other relief or reliefs as your Honour may deem fit and proper. The said case was disposed of ex parte by an order dated 28th February, 2022 by DCDRC passing the following order. “That the complaint case be and the same is hereby allowed Ex-parte against the opposite parties with a cost of Rs.20,000=00 (Rs. Twenty thousand) only. The opposite parties are directed to pay either jointly or severally compensation amount Rs.4,00,000/- [four lakh] only to the complainants within 60 days from the date of issuing this order for deficiency of service under Section 2[11] and unfair trade practice under Section 2[47] of the C.P. Act 2019. All the opposite parties are again directed:- [1] to complete the 3 BHK flats along with the 4 wheeler car parking spaces to hand over to the complainants; [2] to issue possession letter with Completion Certificate in favour of the complainants; and 3 [3] to register the Deed of Conveyance in favour of the purchasers /complainants. All these activities should be completed by the O.Ps. within 60 days from the date of issuing this order. [4] The complainants are also directed to pay to the O.Ps. the balance amount of Rs.2,96,906.00 only on or before Registration of flats and car parking spaces but within 60 days from the date of issuing this order and they should bear the charges for Registration. In case of failure to hand over the possession letter, completion certificate and to register the Deed of Conveyance by the O.Ps. even after getting the balance amount Rs.2,96,906.00 only, both the amount of compensation and costing will bear 7% p.a. simple interest till to the realisation. Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.” As the petitioners failed to pay compensation amount of Rs.4 lakhs within the stipulated period of time made in the order dated 28th February, 2022, the opposite parties /decree holders filed an execution proceeding which was registered as 4 E.A./15/2022. It is also important to record at this stage that the petitioners /judgment debtors being aggrieved by the order dated 28th February, 2022 preferred an appeal before the said Commission along with an application for condonation of delay under Section 5 of the Limitation Act. The said Commission issued notice to the decree holders directing them to show cause as to why delay in filing the appeal would not be condoned. Date is fixed by the said Commission for appearance of the decree holders/opposite parties and submission of application showing cause in the month of September, 2022. In the meantime the DCDRC passed an order dated 5th August, 2022 issuing warrant of arrest against the petitioners and fixing 14th September, 2022 for execution report of warrant of arrest. The petitioners being aggrieved against the said order assailed the same before this Court. The points of law involved in the instant revision for decision are:- (i) Whether DCDRC can issue warrant of arrest against the judgment debtor in an execution proceeding; 5 (ii) Whether impugned order is at all revisable by this Court under the provision of Sections 397/401 of the Code of Criminal Procedure; (iii) Whether an order passed by DCDRC is amenable to Section 482 of the Code of Criminal Procedure. All three points of law are taken up together for discussion. Section 38 of the Consumer Protection Act, 2019 lays down detailed procedure to be undertaken by the DCDRC on admission of complaint. For disposal of the points of law involved in the instant revision, it is necessary to mention Sub-section (9) of Section 38. Section 38(9) of the Act states :- “(9) For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely- (a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (b) requiring the discovery and production of any document or other material object as evidence; (c) receiving of evidence on affidavits; 6 (d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (e) issuing of commissions for the examination of any witness, or document; and (f) any other matter which may be prescribed by the Central Government.” Section 38(10) of the said Act states - “(10) Every proceeding before the District Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and the District Commission shall be deemed to be a criminal court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). At the risk of repetition, I like to recapitulate that hearing of CC Case No.45 of 2021 is concluded by the DCDRC and ex parte judgment was passed on 28th February, 2022. The said judgment is still in force. It is not in dispute that the decree holders filed an execution case against the petitioners /judgment debtor which was registered as EA/15/2022. 7 Section 71 of the said Act deals with the procedure regarding enforcement of order of District Commission, State Commission and National Commission. Section 71 runs thus:- “Every order made by a District Commission, State Commission or the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act.” Thus, it is absolutely clear that an order granting compensation, specific performance of an agreement recovery of goods and services etc. is executable under the provision of Order XXI of the Code of Civil Procedure. As per example, an order passed by the DCDRC directing the judgment debtor to pay compensation can be executed under Order XXI Rule 30 in the manner of execution of decree for payment of money. Such an order may be executed by putting the judgment debtor in civil prison, or by the judgment and sell of his property or by both. Therefore, in order to execute an order for payment of 8 compensation by the judgment debtor, the Executing Court can issue warrant of arrest in order to compel attendance of the judgment debtor before the Commission and if the judgment debtor fails to pay the compensation amount, he may be put to civil prison. However, in such case, it is the bounden duty of the Commission to assess the cost of execution of warrant of arrest by police against the judgment debtor as well as the cost of keeping the judgment debtor in civil prison and the decree holder is required to be asked to put such amount for execution of decree by issuance of warrant of arrest and detention of the judgment debtor in civil prison. In the instant case, DCDRC did not take such recourse before issuance of warrant of arrest against the judgment debtor in EA/15/2022. The decree holder has another course to follow which is delineated in Section 72 of the said Act. Section 72 runs thus:- 72. Penalty for non-compliance of order-(1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less 9 than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Save as otherwise provided, the offences under sub-section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be. Plain reading of the above provision contained in Section 72 suggests that the Commission is empowered to initiate a proceeding for penalty of non-compliance of the order and such order is not limited to a final order granting relief in favour of the decree holder by the Commission. Even, in order to enforce attendance of the judgment debtor in a pending case, or appeal, the Commission can issue warrant of arrest and start proceeding under Section 72 of the said Act. This issue is made abundantly clear by the Hon’ble Supreme Court in a recent 10 decision in L & T Finance Ltd. Vs. Pramod Kumar Rana & Anr. (Civil Appeal Nos. 5894-5895 of 2021) decided on 25th November, 2021. Therefore, the provision of Sections 71 and 72 of the said Act are not mutually inclusive. It is open for the decree holder after disposal of a case or appeal, as the case may be, either to put the order of the Commission in execution or to pray for initiation of a proceeding for penalty for non-compliance of order under Section 72 of the said Act. If the decree holder approaches the Commission under Section 72, the proceeding is to be treated as an offence for which the offender is liable to imprisonment and / or fine or both. Sub-section (2) of Section 72 empowers the Commission with the power of a Judicial Magistrate of First Class for trial of offences under sub-section (1). Thus, while comparing the provision contained in Section 71 and Section 72 of the said Act, it is ascertained that if the decree holder want execution of its order, they must take recourse of Section 71 and the execution will proceed in accordance with Order XXI of the Code of Civil Procedure. In an execution proceeding, the commission having power of the executing Court cannot take recourse to Section 72 and take a shortcut and coercive method for execution of its order. 11 For the reasons stated above, this Court comes to an irresistible conclusion that in an execution application, the commission cannot issue warrant of arrest for enforcement of its order. The commission has, of course, the authority to issue warrant for detention of the judgement debtor in civil prison in accordance with the provision under the Code of Civil Procedure. It cannot issue warrant of arrest against the judgement debtor following the part ‘B’ of Chapter VI of the Code of Criminal Procedure. In view of what has been stated above, this Court finds that the order dated 5th August, 2022 is palpably illegal. The issue whether a commission can be said to be a Tribunal for the purpose of exercise of powers under Article 227 of the Constitution of India by the High Court is concerned, has been considered by a Constitution Bench of the Hon’ble Supreme Court in the case of Associate Cement Companies Limited –Vs. P. N. Sharma reported in AIR 1965 SC 1595 and L. Chandrakumar – Vs. Union of India reported in (1997) 3 SCC 261. In Associate Cement Companies Limited (supra) it is observed by the Hon’ble Supreme Court in paragraphs 44 and 45 as hereunder:- 12 “44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statue or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private 13 arbitrator or a tribunal acting under Section 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Article 136. It matters little that such a body or authority is vested with the trappings of a Court. The Arbitration Act, 1940 vests an arbitrator with some of the trappings of a Court, so also the Industrial Disputes Act, 1947 vests an authority acting under Section 10-A of the Act with many of such trappings, and yet, such bodies and authorities are not tribunals. 45. The word “tribunal” finds place in Article 227 of the Constitution also, and I think that there also the word has the same meaning as in Article 136.” Therefore, the National Commission can be said to be a ‘Tribunal’ which is vested by statute the powers to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them. Therefore, as observed hereinabove in the aforesaid decision, it satisfies the test of an authority vested with the judicial powers of the State and therefore may be regarded as a ‘Tribunal’ within the meaning of Article 227 and/or 136 of the Constitution of India. Also, in a given case, this Court may not exercise its powers under Article 136 of the Constitution of India, in view of the remedy which may be 14 available to the aggrieved party before the concerned High Court under Article 227 of the Constitution of India, as it is appropriate that aggrieved party approaches the concerned High Court by way of writ petition under Article 227 of the Constitution of India. The said observation is subsequently followed in L. Chandrakumar (supra). Therefore, for the purpose of application of Article 227 of the Constitution, DCDRC is treated to be a Tribunal and this Court has ample power under Article 227 of the Constitution as well as Section 482 of the Code of Criminal Procedure to pass appropriate order to prevent abuse of the process of the Tribunal. For the reasons stated above, the order dated 5th August, 2022 passed by DCDRC is quashed. The instant revision is accordingly allowed. It is brought to the notice of this Court that District Consumer Disputes Redressal Commission in the State of West Bengal have been consistently passing similar type of orders which are palpably illegal. Therefore, the Learned Registrar (Judicial Service) is 15 directed to circulate this order to all DCDRCs and State Consumer Disputes Redressal Commission for their information and future guidance. (Bibek Chaudhuri, J.)
Friday, December 29, 2023
It is brought to the notice of this Court that District Consumer Disputes Redressal Commission in the State of West Bengal have been consistently passing similar type of orders which are palpably illegal. Therefore, the Learned Registrar (Judicial Service) is 15 directed to circulate this order to all DCDRCs and State Consumer Disputes Redressal Commission for their information and future guidance.
Thursday, December 28, 2023
application to set aside order of DM Murshidabad DRT Siliguri
IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI
PCM
Tower, 2nd Floor, 2 no. Mile, Sevoke Road, Siliguri - 734001.
I.A. no.
___________OF 2023
(Diary No.
___________of 2023)
in
SARFAESI APPLICATION
NO 26 OF 2022
{ Diary no. 256/2021
}
HASNA BEWA
--- ---- APPLICANT
– VERSUS –
PUNJAB NATIONAL BANK
----- ---- RESPONDENT
The
humble petition of the above named applicant, most respectfully;
Sheweth as under :
1.
That
the applicant has already filed an application being SA no. 26 of 2022 (Diary
No. 256 of 2021), challenging the action and conduct of the respondent bank in
respect of the Loan facility bearing Account No. 0700250032294. The said
application is pending before this Learned Tribunal for final adjudication.
2.
That
the present application to
set aside notice being Memo No. 1497(3)/SARFAESI/RM, DATED 14-12-2023, and
Order dated 23-11-2023, passed in proceeding being Case no. 20/2023, under
Section 14 of SARFAESI Act, 2002 & Security Interest (Enforcement) Rules,
2002, by the Learned Additional District Magistrate (L.R.), Murshidabad &
with Authority Under Section 14 of SARFAESI Act, 2002, in the given facts &
circumstances.
3.
That
the respondent bank during pendency of the said application has issued a sale
notice dated 21/01/2022, which was challenged by filling IA no. 46 of 2022.
4.
That
by Order dated 21/02/2022, the Learned Tribunal was pleased to restrain the
respondent bank not to give any effect to any bid in respect of the said sale
notice dated 21/01/2022.
5.
That
the respondent bank by the said Order dated 21/02/2022, was given liberty to
file objection to the said IA application. Till date the respondent bank has
not served copy of the said objection, as such it is assumed that objection has
not been filed.
6.
That
the applicant has brought series of serious allegations against the officers of
the respondent bank, which are yet to be addressed and adjudicated.
7.
That
with utter surprise the applicant has received the another Sale Notice dated
24/03/2022, only on 03/04/2023, which is similar to the previous sale notice
dated 21/01/2023, the dues had been shown same in both the sale notices. The
Sale Notice dated 24/03/2022, contained in an Enveloped which has been posted
on 30/03/2023, under Speed Post no. EW963073352IN. The said Sale Notice shown
under reference as CO SASTRA MURS/EAUCTION/2838/2022-23, date : 24.03.2022.
8.
That
the conduct of the respondent bank is not in terms of Law. While the first Sale
notice is pending where they have chosen not to file any objection, cannot
issue the Second Sale Notice dated 24/03/2022.
9.
That
the respondent bank is deliberately avoiding to deal with the alleged
criminality of the bank officials and on the contrary they are showing the
applicant duped the loan amount.
10. That the respondent
bank by avoiding submissions of the objection to the previous sale notice dated
21/01/2022, is actually admitting the case of the applicant which says
fraudulent activities of the bank officials.
11.
That
the respondent bank is only harassing the applicant by sending notices for sale
to complicate the issue and to create confusion of the issue which the
applicant specify in specific way, which says that the applicant has paid
considerable amount, which the then bank officials did not deposit.
12.
That
the respondent bank has claimed the same amount in sale notice dated
24/03/2022, as was claimed in their sale notice dated 21/01/2022. This singular
fact proves that the respondent bank as a routine duty in dealing with the
matter and no coordination within the bank is seen meaning thereby the grievance
of the applicant is established beyond any doubt.
13.
That
the facts in the backdrop of the earlier application cited above;
(i)
The
Defendant has served notice of intended Sale being no. CO SASTRA
MURS/EAUCTION/999/2021, dated 21-01-2022, Up-on the applicant which has been
posted on 28-01-2022, vide Consignment no. EW361395319IN, which reached to the
applicant on 29-01-2022, and at the same time they have published E-Auction
Sale Notice in the News Paper dated 22-01-2022, whereby it has been mentioned
that mortgaged property of the applicant will be sold out through E-auction on
22-02-2022. It is surprising that in-spite of having knowledge of Criminal
Conspiracy and activities of the Bank Officials in looting money from the
applicant, the mortgaged property is going to be put on sale.
(ii)
The
concerned respondent is showing four loan accounts vide account nos.
0700250032294, 0700306740359, 0700306742490, and 0700306734640; but in fact 0700306734640 and 0700250032294,
exist and the other two loan accounts have no existence. As such the facts of
the case and conduct of the concerned bank are required to be investigated
first and the bank should inform the applicant the details of the loan amount
disbursed to the applicant. Before doing that they cannot go for E-AUCTION of
the mortgaged property.
(iii)
The
applicant through her Learned Advocate by Email communication to the defendant
requested to stay off their hand till out-come of the investigation regarding
cheating and conspiracy of bank officials, as mentioned in the complaint dated
20-12-2021.
(iv)
After
death of husband of your applicant in 2000, she faced a lot of problems
including financial issues. To run her family she decided to start a business
in 2011-12; but she had no sufficient money. So, She contacted with the then
Branch Manager, namely one Mr. Sunder of United Bank of India, now Punjab
National Bank, Nimtatla Chunakhali Branch, Beharampore, Murshidabad, for
getting Loan of Rs. 3,00,000/- . The said Mr. Sunder sanctioned to start and
run her business. She availed of that Loan and the same was repaid in time.
(v)
Your
applicant further decided to enhance her business for which money was required.
So She again approached the Branch Manager, who ultimately sanctioned further
Loan of Rs. 5,00,000/-. She again repaid the said Loan in time. Therefore from
time to time on three occasions She had taken Loan from Bank for doing her
business and She repaid the entire Loan Amount with interest in time. In the
mean-time new manager one Mr. Mahindra came to the Branch of the said Bank.
Then the manager was again changed. One Mr. Koushik took the charge. She
approached him for extending a Loan to the tune of Rs. 7,00,000/- to run
smoothly the business of “Rana Raja Bastralay”. It was given. By that time the
manager was again changed. One Mr. Prakash Shrivastava took the charge.
(vi)
Your
applicant expressed her desire to the Branch Manager to start a new business
for which a Loan of Rs. 40,00,000/- was required. But at that time She had
existing three Loan accounts. To close down the said accounts, a sum
approximately of Rs. 12,00,000/- was necessary. The said manager dissuaded to
repay the said sum of Rs. 12,00,000/- from the new Loan of Rs. 40,00,000/- .
your applicant agreed. He asked her to issue three cheques amounting to total
12 Lakhs. Your applicant issued the same and the manager assured her of closing
the said three loan accounts. The manger further told your applicant that She
would receive a cheque within a four days, and to contact him immediately after
receiving the same. Accordingly, your applicant received the cheque by post and
immediately contacted him. Subsequently the said Mr. Shrivastava joined RM
Office. In-spite of receiving your applicant’s three cheques the Loan Amount
was not repaid. In the mean-time your applicant contacted with Mr. Arun Babu,
the Assistant Manager and told him the fact. After hearing her trouble he asked
the concern Manager Mr. Shrivastava to whom your applicant submitted three
cheques, to close down the said accounts immediately. Accordingly your
applicant’s said three Loan accounts were closed.
(vii)
In
availing the said Loan, Your applicant had to mortgage the Title Deed of one of
her Properties. In-spite of repeated request and in-spite of the payment of the
Loan Amount the bank authority has not returned the title deed. It is still
lying with the Bank. The said Mr. Shrivastava also told your applicant not to
disclose the fact that He have not been given the Deed to Mr. Sunder, Arun
Babu, and Cashier Khokan Babu.
(viii)
The
said Mr. Shrivastav in mean time came to residence of your applicant and asked
for Rs. 3,00,000/- immediately to treat his ailing father and further assured
her of depositing the same in her Loan Account. This is the incident of 2020.
Relying his words and considering his immediate need She gave him Rs. 3 Lakhs
by Cash. The said Mr. Shrivastav after a few days again came to residence of
your applicant and asked for money to save another Customer of the Bank whose
account has been declared as NPA. He immediately opened TOD and transferred Rs.
8 Lakhs in your applicant’s Account and then took that money for saving the
said customer. He further promised to deposit the previous Rs. 3 Lakhs and
present Rs. 8 Lakhs in your applicant’s Loan Account. But he has not kept his
promise. The said Mr. Shrivastav again came to your applicant’s house and asked
for Rs. 2 Lakhs in lieu of opening a Loan Account having subsidy facility. She
paid him Rs. 50,000/- by cash and Rs. 1,50,000/- by cheque. The said Mr.
Shrivastav has not given her certificate against her Gold Bond of 12 gm. Gold
for which Rs. 60,000/- was given.
(ix)
The
said Mr. Shrivastav has neither returned your applicant’s money to the tune of
Rs. 15,00,000/- nor has he deposited the same in her loan account. He also has
not handed over her Mediclaim Certificate for which She paid him Rs. 16,000/-.
Beside key of the hardware shop room of one Mr. Jagadish Mondal has also not
been handed over to her. He took the names of surajit, and sekhar of the bank
who would solve her problem. The said Arun Babu of the bank in two parts took
Rs. 14 Lakhs from your applicant against booking of a flat. Neither any
agreement for sale has been prepared nor money, has been returned. Arun babu
has also cheated your applicant.
(x)
Surprisingly
the Bank authority which has now been merged with Punjab National Bank has
published in “Financial Express” as well as Bengali vernacular “Ekdin” on their
Edition on 10-11-2021, Possession Notice, in respect of the same property. In
one place they have shown total outstanding as Rs. 69,27,691.87/- and in
another place the outstanding has been shown as Rs. 18,83,206.87/-;
(xi)
Your
applicant has been shown a defaulter but in reality She never have been
provided with the alleged Loan Amount. It is a conspiracy of the Bank
Officials, for which She has been impleaded as a party to the issue.
(xii)
The
bank officials have sanctioned & withdrawn Rs. 4 Lakhs which has been given
for survival during the pandemic from account no. 0700306740359. Besides your
applicant have no idea about the account number 0700306742490, where Rs. 2.81
lakhs have been shown. Who has sanctioned and who has taken money, your
applicant cannot tell.
(xiii)
Your
applicant lodge such facts with the concerned Police Authority as well as the
Bank Authority seeking thereby investigation into the matter of her complaint
and to book the culprit being bank officials. Your applicant is victim who has
been defrauded by bank officials.
(xiv)
Pursuant
to grant of loan facility vide sanction letter dated 01/08/2018 by the
Respondent to and in favour of your
applicant. The respondent took mortgaged of her one of the property.
Full description of the said ownership property of the Applicant particularly
described in a Schedule at the foot hereof and marked as Schedule “A”.
It is pertinent to states that the Loan Account no. 0700250032294, has been
assigned by the Defendant.
(xv)
The
Borrower being your applicant regularly paid to the Respondent, and whereas the
said EMI directly taken by the Respondent Bank, through ECS from the account of
the borrower. Borrower did not default in paying her EMI as assigned by the
respondent bank.
(xvi)
In the month of April’ 2021, the respondent bank
through its Letter dated 09-04-2021, sent Recovery notice stating inter alia
your borrower as a defaulter and call upon your applicant for payment of Rs.
49,24,927/- ( Rupees Forty Nine Lakhs and Twenty Four Thousand and Nine Hundred
Twenty Seven ) only, categorize such Loan account as NPA ( Nonperforming
account) on 31-03-2021, and thereby threatened to initiate Legal proceeding
against your applicant.
(xvii)
The Reserve Bank of India on 27-03-2020, issued
Statement of Development and Regulatory Policies where inter alia certain
regulatory measures were announced to mitigate the burden of debt servicing
brought about by disruptions on account of COVID-19 pandemic and to ensure the
continuity of financial assertions, which extended time and again, by the RBI.
(xviii)
The
Reserve Bank of India has issued such notification for the moratorium period at
first for the three months commencing from the month of March’ 2020, April’
2020, and May’ 2020, and consequently for another three months i.e. June’ 2020,
July’ 2020, and August’ 2020. Thus a total period of Six months has been given
as moratorium period were announced to mitigate the burden of debt
servicing brought about by disruptions on account of COVID-19 pandemic and to
ensure the continuity of financial assertions, which extended time and again,
by the RBI.
(xix)
The
Applicant astonished while She received a notice on or about 05/11/2021 at the
door of her residence wherein it was purportedly contended that one alleged
notice dated 02-07-2021 by the Respondent purportedly under sub-Section 2 of
Section 13 of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act; 2002, calling upon the Applicant to
discharge in full a total sum of Rs.69,27,691.87/- ( Rupees Sixty Nine Lakhs
Twenty Seven Thousand Six Hundred Ninety One and paise eighty seven ) only, was
allegedly served upon the Applicant.
14.
That
surprisingly, the Officer-in-Charge, SARFAESI Act, 2002, Murshidabad, has given
an intimation vide memo no. 1323/R.M./SARFAESI, dated 16-10-2023, asking the
petitioner to be present on 03-11-2023, in the hearing before the Additional
District Magistrate (L.R.), Murshidabad & with Authority under Section 14
of SARFAESI Act, 2002, in a proceeding being Case no. 20/2023, instituted by
the Defendant Bank. The envelop reached to the petitioner on 02-11-2023, and it
was posted on 31st day of October’ 2023. It is astonishing that the
said memo issued by the concerned Officer-in-Charge, SARFAESI Act, 2002,
Murshidabad, was sent in a printed envelop of the respondent Punjab National
Bank. This conduct clearly establishes an unholy nexus between the bank and
statutory authority, which has been done to non-suit the petitioner specially
when the respondent bank in-spite of getting several opportunity chose not to
file written objection against the present application as well as against the
IA application, so, far.
Photostat
copies of the said memo dated 16-10-2023, envelop, & track consignment
report are annexed herewith and marked as Annexure – “A” Collectively.
15.
That
the Learned Advocate for the petitioner on 03-11-2023, intimated (1) the
Officer-in-Charge, SARFAESI Act, 2002, Murshidabad, (2) the Additional District
Magistrate (L.R.), Murshidabad, & with Authority under section 14 of
SARFAESI Act 2002, and (3) the Punjab National Bank, by email, & Post that
within the short period of time the petitioner would not be able to attend the
meeting as such the said authority has deferred the meeting and it has been
fixed on 23-11-2023, by way of further intimation by memo no.
1360/R.M./SARFAESI, dated 08-11-2023, which has been received by the Petitioner
on 14-11-2023.
Photostat
copies of the intimation by the Learned Advocate dated 03-11-2023, and memo no.
1360/R.M./SARFAESI, dated 08-11-2023, with envelop, & track report, are
annexed herewith and marked as Annexure “B” Collectively.
16.
That
the Petitioner placed such facts on record with appropriate communication to
the Respondent as well as to (1) the Officer-in-Charge, SARFAESI Act, 2002,
Murshidabad, (2) the Additional District Magistrate (L.R.), Murshidabad, &
with Authority under section 14 of SARFAESI Act 2002, by email, & Post, by
way of IA applications, which has been heard by the Hon’ble Tribunal on
15-12-2023. The Hon’ble Tribunal Was pleased to pass necessary order viewing
that mere issuing notices under Section 14 of SARFAESI Act 2002, does not give
any cause of action and therefore the Hon’ble Tribunal was pleased to dismiss
the IA’s application placed by the Petitioner.
Photostat
copy of the Order dated 15-12-2023, is annexed herewith and marked as Annexure
“C”.
17.
That
very surprisingly, on 21-12-2023, your petitioner received a communication vide
Memo No. 1497(3)/SARFAESI/RM, DATED 14-12-2023, which give a copy of Order
dated 23/11/2023, passed in case no. 20/2023, by the Learned ADM (LR),
Murshidabad. The said communication has been given by the Officer-in-Charge,
SARFAESI, Murshidabad. The said communication has been booked only on
18-12-2023 with concerned post office and the same has been delivered in the
evening on 21-12-2023, to the petitioner.
Photostat
copy of the Communication dated 14-12-2023, along with the Order dated
23-11-2023, passed in Case no. 20/2023, by the Learned ADM(LR), Murshidabad,
envelop, & track report, are annexed herewith and marked as Annexure “D”,
Collectively.
18.
That
the Order dated 23-11-2023, passed in Case no. 20/2023, by the Learned ADM
(LR), Murshidabad, does not speak about the pendency of the present SA
proceeding before the Hon’ble Tribunal, even after having full knowledge, and
the Respondent Bank did not disclose about the said Order dated 23-11-2023,
while submitting their written objection in earlier IA application, on
08-12-2023, and also at the time of hearing on 15-12-2023. The conduct of the
respondent Bank as surfaced on the face of record clearly established the
unholy nexus between the ADM (LR), Murshidabad, and the Respondent Bank, to
give a fresh Cause of Action during the pendency of the present SA application
before the Hon’ble Tribunal.
19.
That
the Order dated 23-11-2023, passed in Case no. 20/2023, by the Learned ADM
(LR), Murshidabad, give direction to take the Secured Assets being the
immovable property as Residence of the Petitioner latest by 17th day
of January’ 2024, if needed the Respondent Bank will take help of the Police in
ousting the petitioner from the said subjected property, is totally illegal
adventure and without due process of the Law, while the present SA proceeding
is pending for adjudication and awaiting for its final hearing before the
Hon’ble Tribunal.
20.
That
the Petitioner states that the above referred SA application is pending for
adjudication before the Hon’ble
Tribunal. The Respondent Bank is illegally proceeding with the matter
under Section 14 of SARFAESI Act, 2002, being Case no. 20/2023, before the
Additional District Magistrate (L.R.), Murshidabad, & with Authority under
Section 14 of SARFAESI Act’ 2002, So long any order favour the respondent Bank,
they are not in a position to advance the case under Section 14 of the said
Act, and the order, therein, if any pursuing the illegality, so far.
21.
That
the Petitioner states that both the Respondent Bank and the said statutory
authority are intentionally complicating the issue. The Respondent is trying to
dodge the issue and establishing a fresh cause of action, which attribute
irreparable suffering to the petitioner.
22.
That
the Applicant states that the Defendants are deliberately trying to encroach
the properties so that they can earn an added advantage over it as they have
suppressed many material facts and even disobeyed the laws as enumerated in the
‘said Act’; such transpires from their performances which are being foreseen
herein above with facts and evidence such illegal, concocted steps must
categorically be directed for the ends of natural justice, furthermore no such
arrogant, biased and disobedient steps be barred from taking into consideration
by the Defendants as there is law above everyone.
23.
That
the applicant further submits that the purported steps and measures taken by
the defendant against the applicant are full of undue haste and ill motive
without applicability of the provisions as enumerated under the SERFESAI Act.
The applicant craves to make appropriate submission on facts and law at the
time of hearing.
24.
That
the applicant further pray that the illegal steps taken by the defendant under
the blanket of the SARFAESI Act and rules made thereunder are bad in law and
thus it must be set aside and or quashed forthwith and status quo be maintained
over the mortgaged property till the adjudication of this Lis, as the action of
the defendants are ambiguous contrary to the settled provisions of the Law and
procedure and or not in accordance with the were settled and established law
and rules.
25.
That
the defendant did not follow the process of service as lay down by the
provisions. This action of the defendant bank clearly shows the desperation of
theirs to recover the money from the borrowers by any means possible. That the
applicant submits that this kind of desperate actions by a financial
institution like the defendant bank is very shameful as they are in as such
higher position of power and plays a very important role in the daily life of
the public they serve.
26.
That
the applicant hereby prays that the Hon’ble Tribunal may be pleased to pass an
order to set aside notice being Memo No. 1497(3)/SARFAESI/RM, DATED 14-12-2023,
and Order dated 23-11-2023, passed in proceeding being Case no. 20/2023, under
Section 14 of SARFAESI Act, 2002 & Security Interest (Enforcement) Rules,
2002, by the Learned Additional District Magistrate (L.R.), Murshidabad &
with Authority Under Section 14 of SARFAESI Act, 2002, at the behest of the
defendant Bank, as the whole procedure totally based on negligence of the Bank
and only to rectify their own mistakes which clearly shows the malaise
intentions of the banking authority behaving more like a money lenders from the
past days.
27.
That
unless the order/orders prayed by the applicant is passed by the Ld. Tribunal
the applicant herein will suffer from the wrong doing of the defendant bank
herein
28.
That
this interim application is made bona fide and for the end of justice.
It is
therefore, most respectfully prayed as follows:-
a.
Declaration
that the purported steps and measures taken by the Defendant under the
provisions of the SARFAESI Act, 2002 is bad in law and be quashed;
b. To set aside notice being Memo No.
1497(3)/SARFAESI/RM, DATED 14-12-2023, and Order dated 23-11-2023, passed in proceeding
being Case no. 20/2023, under Section 14 of SARFAESI Act, 2002 & Security
Interest (Enforcement) Rules, 2002, by the Learned Additional District
Magistrate (L.R.), Murshidabad & with Authority Under Section 14 of
SARFAESI Act, 2002;
c. To grant stay of notice being Memo No.
1497(3)/SARFAESI/RM, DATED 14-12-2023, and Order dated 23-11-2023, passed in proceeding
being Case no. 20/2023, under Section 14 of SARFAESI Act, 2002 & Security
Interest (Enforcement) Rules, 2002, by the Learned Additional District
Magistrate (L.R.), Murshidabad & with Authority Under Section 14 of
SARFAESI Act, 2002;
d.
An
appropriate order of status-quo till the disposal of this case;
e.
For
an exemplary cost may be imposed upon the Defendant Bank;
f.
Such
or other order may kindly also be passed as deemed fit and proper in the fact
and circumstances of this case.
And
for this act of kindness your petitioner as in duty bound shall ever pray.
SCHEDULE “A” ABOVE REFERRED TO
Description
of immovable property
ALL that piece and parcel of the
immovable property being at Mouza : Jan-Mahammadpur, J.L. no. 112, L.R. Khatian
No. 2417, L.R. Dag no. 2503, measuring 3.50 decimal alongwith construction of
Two storied building standing thereon within the limits of Hatinagar Gram
Panchayat, Post Office – Ghorsala, Police Station – Raghunathganj, District –
Murshidabad, Pin - 742102, West Bengal, bounded by :
On the North : Road
On
the South : House of
Rasimuddin Mondal,
On the East : House of Marjina Bibi,
On the West : Bapi Sk.
AFFIDAVIT
I,
Hasna
Bewa, Wife of Late Janaruddin Seikh, aged about 51 years, by faith Muslim, by
Occupation Business, residing at premises being Village – Ustia, Post Office –
Muktinagar, Police Station – Berahampore, District – Murshidabad, Pin – 742102,
West Bengal,
do here by solemnly affirm and declare as follows:-
1.
That
I am the Applicant in the above case and I am well acquainted with the facts of
the suit and I am competent to swear this Affidavit for and on behalf of the Applicant.
2.
That
the statements made above in paragraphs are true to my knowledge as derived
from the records.
That
the rest are my humble submissions to the Hon’ble Debt Recovery Tribunal and I
sign this Affidavit on the _________December’ 2023.
Signature
Identified
by me
Advocate
Prepared
in my Chamber,
Advocate.
Dated
: _____December’ 2023.
Place
: Kolkata.
N O T A R Y