IN
THE DEBTS RECOVERY TRIBUNAL III, KOLKATA
JEEVAN SUDHA BUILDING (8th FLOOR)
42C, J.L. NEHRU ROAD
KOLKATA – 700 071
IA
NO. ______________Of 2023
Arising
out of
SARFAESI
APPLICATION NO. ________ OF 2023
(Diary
No. ________________of 2023)
Srabani Basu,
Wife of Shri Tanay Basu, aged about 54 years, residence of Village –
Subuddhipur Station Pally, Post Office & Police Station – Baruipur, Kolkata
– 700144, District South 24 Parganas, Mobile No. 8420156387, 7980910070, Email
: seulibasu96@gmail.com
---
---- APPLICANT
–
VERSUS –
(1)
The
Authorized Officer, ICICI Bank having its Office at Landmark Building, 4th
Floor, Premises being no. 228A, AJC Bose Road, Kolkata – 700020.
(2) The Assistant General
Manager, Manager Maintenance, State Bank of India, Retail Assets Central
Processing Center-Cum-Stressed Assets Resolution Centre, Howrah, 239,
Panchanantala Road, Howrah – 711101.
(3) The Authorised
Officer, State Bank of India, Stressed Assets Recovery Branch, “Kankaria
Centre”, 2/1, Russel Street, 3rd Floor, Kolkata – 700071.
(4)
The
Officer in Charge, Garfa Police Station, Garfa Deaf and Dumb School, Garfa,
Kolkata – 700078.
-----
---- RESPONDENTS
An application for
extension of interim order of status quo;
The
humble petition of the above named applicant, most respectfully;
Sheweth as under :
1.
That the above referred application has
been placed in sub section (1) of Section 17 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002, and being challenging the concerned respondent Possession Notice dated
11-05-2023, under Rule 8 (1) of the Security Interest (Enforcement) Rules,
2002, in respect of the flat of the petitioner purchased through the Sale
Certificate from the State Bank of India, asking one Borrower Samragi Shah and
Co-Borrower Gopal Krishna Shah to pay Rs. 53,45,545/- within Sixty days, a copy
of the said notice was pasted on the wall of the flat of the petitioner.
2.
That the concerned Respondent being
ICICI Bank issued a Possession Notice dated 11-05-2023, under Rule 8 (1) of the
Security Interest (Enforcement) Rules, 2002, in respect of the flat of the
petitioner purchased through the Sale Certificate from the State Bank of India,
asking one Borrower Samragi Shah and Co-Borrower Gopal Krishna Shah to pay Rs.
53,45,545/- within Sixty days, a copy of the said notice was pasted on the wall
of the flat of the petitioner. The afore stated borrower and the co-borrower
are not known to the petitioner.
3. That
the Petitioner through e-auction has purchased a residential flat measuring
about 750 sq. ft. on the ground floor of premises no. 149, Gourango Sarani,
Kolkata – 700 078 within Ward no. 106, within the limits of the Kolkata
Municipal Corporation, Police Station Purba Jadavpur at present Garfa, District
South 24 Parganas, at a consideration price of Rs. 17,65,000/- (Rupees
Seventeen Lakhs and Sixty Five Thousand) only, from the State Bank of India,
subsequently the Sale Certificate dated 03-10-2016, under the relevant act and
rules of the Securitisation & Reconstruction of Financial Assets &
Enforcement of Security Interest Act, 2002, and was registered before the
Additional Registrar of Assurance –I, Kolkata. E-auction notice has been
published in the News Paper. The Petitioner through the Learned Advocate
empanelled with State Bank of India was provided with a detailed searching
report on title of the said Flat. She has purchased the said Flat by taking
House Loan from State Bank of India, itself. The Petitioner is continuing with
the payment EMI to the State Bank of India, through ECS. The Petitioner has
assigned with the Loan Account no. 36112269357 of State Bank of India.
4. That
the Petitioner after Purchasing the said Flat by following the Law of the Land
has mutated her name before the Kolkata Municipal Corporation. She has been
paying regular taxes before the authority. She is residing there also having
electricity in her name.
5. That
the Petitioner being surprised to see the said pasted Possession Notice of
ICICI Bank made a representation before the Assistant General Manager, State
Bank of India, RACPC, Howrah, on 15/05/2023. She requested the said Authority,
to look into the matter and to save her interest without further harassment and
litigation.
6. That
the Assistant General Manager, maintenance, State Bank of India by letter dated
22-05-2023, advised the petitioner to bring the issue before this Learned
Tribunal, and has attempted to give up the responsibility and liability of
State Bank of India.
7. That
one Learned Advocate for the Petitioner by letter dated 26-05-2023, inform the
Branch Manager, ICICI Bank, Land Mark Building, 4th Floor, 228A, AJC
Bose Road, Kolkata – 700020, the details how the petitioner purchased the said
Flat and how men and agents of ICICI Bank are harassing the petitioner. It was
further requested to cancel the Possession Notice sent by ICICI Bank to the
Petitioner and to pay compensation.
8. That
it is pertinent to state that some persons representing themselves as officials
of ICICI Bank visited the flat of the petitioner on 15-02-2022, and causing
several harassment, therefore the petitioner informed the fact to the Garfa
Police Station vide G.D.Entry No. 1062, dated 15-02-2022. The Police intervened
into the matter.
9. That
the Petitioner states and submits that she is totally innocent and has
purchased her flat through Sale Certificate duly registered before the
Registering Authority. As such the present controversy wherein the Petitioner
has no involvement by any imagination cannot and should not defeat her
interest.
10.
That the Petitioner states and submits
that she purchased her flat in the year 2016. Thereafter mutation certificate
issued in her favour and payment of Tax confirms her title and possession both
which cannot be litigated either by State Bank of India or by ICICI Bank.
11.
That the Petitioner states and submits
that the impugned Possession Notice dated 11/05/2023, issued by ICICI Bank is
totally illegal and the Sale certificate dated 22/09/2016 issued by the Competent
Authority of the State Bank of India, which was duly registered on 03/10/2016
before the appropriate authority nullify the said Possession Notice.
12.
That the Petitioner states and submits that
ICICI Bank has no Authority to harass the Petitioner under the given facts and
circumstances. Even if for the sake of
argument ICICI Bank’s interest is considered for a moment, then also they
should fight with State Bank of India from which the Petitioner has purchased
her flat without impleading her as a party to their fight.
13.
That the Petitioner state and submits
that the description of the schedule property in the Possession Notice dated
11-05-2023, given by the ICICI Bank is different a little bit in respect of the
Flat number at ground floor, otherwise the rest description of the schedule
property are the same as of the Petitioner’s schedule property being her flat
acquired under a Sale Certificate from State Bank of India, which is a cause of
sufficient doubts on the part of the ICICI Bank’s recourses of harassment
of the petitioner’ flat.
14.
That the Petitioner states and submits
that the Possession Notice dated 11-05-2023, given by the ICICI Bank is band in
on Law on the Flat of which the Petitioner is a bonafide Owner and the
Petitioner have no relation with the ICICI Bank. The Petitioner is an absolute
possession of the said subjected flat from the date of her inception in the
said flat on purchasing from State Bank of India.
15.
That the Petitioner state and submits
that the afore stated Borrower and Co-Borrower were never in the occupation of
the said subjected flat as stated in the impugned Possession Notice Dated
11-05-2023, given by ICICI Bank. The recourses of the ICICI Bank is not
desirable on the petitioner in the fact and the situation at any terms of the
Law. Thus the Possession notice dated 11-05-2023, given by the ICICI Bank is
bad in law and liable to quash and set aside at the threshold.
16.
That due to arbitrary act on the part
of the ICICI Bank, the Applicant made to suffer and is likely to be seriously
prejudiced as a cloud has been casted upon her right, title and interest as
owner of the Schedule “A”
property and it is necessary that the said notices be quashed and set aside.
17.
That in the above stated circumstances,
your applicant states and
respectfully submits that the purported and alleged Possession notice dated
11-05-2023 of the ICICI Bank purportedly under Rule 8 (1) of the Security
Interest (Enforcement) Rules, 2002, in respect of the flat of the petitioner
purchased through the Sale Certificate from the State Bank of India, asking one
Borrower Samragi Shah and Co-Borrower Gopal Krishna Shah to pay Rs. 53,45,545/-
within Sixty days, if any, and allegedly served upon the Applicant and any
other notice or notices consequential thereto deserves to be and should be
quashed and stating the same as bad in law and have no force at all.
Consequently, the concerned respondent also deserves to be and should be
restrained from giving any effect to the said notices or any manner acting in pursuance
thereof against the Schedule “A” property
of the Applicant by way of Interlocutory Application no. IA no. 1613 of 2023,
before the Hon’ble Tribunal, which has been taken up on 02/08/2023, in presence
of all the parties in the above referred proceeding. On hearing the said IA
application, the Hon’ble Tribunal was pleased to grant an order of status quo
for a limited period till the next date of hearing. The Hon’ble Tribunal listed
the said IA application for hearing 28/11/2023, and directed the respondents to
file their affidavit in opposition within a period of 2 weeks with a copy to
the applicant who may file rejoinder within a further period of 2 weeks with a
copy to the respondent.
Photostat Copy of the Server copy of
Order dated 02-08-2023, is annexed herewith as Annexure –“A”.
18.
That the said Order dated 02/08/2023,
has been given by the Hon’ble Tribunal upon hearing of all the parties to the
above referred proceeding; Thus all the parties of the proceeding referred
herein above are assumed to be aware of the said Order dated 02/08/2023, by the Hon’ble Tribunal was pleased to
grant an order of status quo for a limited period till the next date of
hearing. The Hon’ble Tribunal listed the said IA application for hearing
28/11/2023, and directed the respondents to file their affidavit in opposition
within a period of 2 weeks with a copy to the applicant who may file rejoinder
within a further period of 2 weeks with a copy to the respondent.
19.
That though while the said Order dated
02/08/2023, has been uploaded at the website portal of the Hon’ble DRT, the
same has been communicated to the respondents, by way of letter dated 23rd
day of August’ 2023, through the Learned Advocate of the applicant. The
Respondents are in receipt of the said letter. The respondents are well within
the knowledge of the purports and contents of the said Order dated 02-08-2023.
Photostat copy of the Letter dated
23-08-2023, along with the Postal Receipts & Track reports, are annexed
herewith and marked as Annexure – “B”, Collectively.
20.
That it is pertinent to states that the
Respondents did not submit their Affidavit in Opposition and as such no copy
has ever been given by them to the applicant, till date. The respondents did
not pursue the direction of the Hon’ble Tribunal. The Officials of the
Respondent ICICI Bank visited the premises of the applicant enquired about the
transaction and papers from the applicant, which give raise of genuine apprehension
of the purposive acts & omission of the respondent ICICI Bank.
21.
That in the given facts and
circumstances, your applicant seeks the extension of the said Order dated
02-08-2023, in respect of an order of status quo till the disposal of the SA
application being SA/520 of 2023 (Diary Number 897 of 2023), in the interest of
administration of justice.
22.
Unless Orders as prayed for herein are
made the Applicant shall suffer irreparable loss, prejudice and injury thereof.
23.
That this interim application is made
bona fide and for the end of justice.
It is
therefore, most respectfully prayed as follows:-
a.
To
extend the order of status quo emphasized in Order dated 02-08-2023, till the
disposal of SA application no. SA/520/2023 (Diary Number 897 of 2023), in the
interest of administration of Justice;
b.
To
restraining the concerned Respondent, its men, agents, servants, officials and
persons claiming under it from giving any effect to or from in any manner
acting in pursuance of the provisions of the Securitization and Reconstruction
of Financial Assets and Enforcement of Securities Interest Act, 2002, the
illegal possession under said notice dated 11-05-2023; and/or any other act or
acts of the Respondent pursuant to laws
relating to Securitization and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act, 2002, and the consequential laws
thereto and thereunder be removed and the Respondent be restrained from selling
the Schedule “A” property of
the Applicant;
c.
To
restraining the concerned Respondent, its men, agents, servants, officials and
persons claiming under it from giving effect to or executing the said notice
dated 11-05-2023 or any other notices consequential thereto, till the disposal
of the present case;
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.
An
appropriate order prohibiting and or quashing the concerned Defendant from
giving or further effect and / or action in furtherance to Possession Notice
dated 11-05-2023, and also restraining them from taking any further steps under
the SARFEASI Act 2002;
g.
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
self contained a complete flat No. A on ground Floor of three storied building
measuring 750 Sq. ft. Super Built up area (covered area 600 Sq. ft.) be the
same or little more or less undivided proportionate share of land measuring 2
Cottahs 6 Chhitacks 18 Sq. ft. Mouza – Garfa, J.L. No. 19, Khatian No. 526, Dag
No. 1430, at the premises No. 149, Gouranga Sarani, Kolkata – 700078, under
Ward no. 106, within the limits of the Kolkata Municipal Corporation, Police
Station Purba Jadavpur at present Garfa, District South 24 Parganas, There is
no provision of Lift, butted & bounded by :
On
the North : By Plot of Dag
No. 1430;
On the South : By Canal Bank Road;
On
the East : By Dag No.
1431;
On the West : By Dag No. 1430
and 12’-0”
wide Road;
– VERIFICATION –
I, Srabani Basu, Wife of
Tanay Basu, being the applicant, hereby solemnly verify that the contents of
paragraphs 1 to 11 are true to my personal knowledge and belief and that I have
not suppressed any material facts.
I sign this Verification on
this _____day of November’ 2023.
AFFIDAVIT
Affidavit
of Srabani
Basu, Wife of Tanay Basu,
aged about 54 years, by faith Hindu, by Occupation Service, residing at
premises being Village
– Subuddhipur Station Pally, Post Office & Police Station – Baruipur,
Kolkata – 700144, District South 24 Parganas, West Bengal.
I,
the above deponent do hereby solemnly affirm and declare as under :-
1
: That I am the applicant, and thoroughly conversant with the facts and
circumstances of the present case and am competent to swear this affidavit.
2
: That the facts contained in my accompanying petition / application, the
contents of which have not been repeated herein for the sake of brevity may be
read as an integral part of this affidavit and are true and correct to my
knowledge.
DEPONENT
Verification
I,
the above named deponent do hereby solemnly verify that the contents of my
above affidavit are true and correct to my knowledge, and no part of it is
false and nothing material has been concealed therein.
Verified
this _____ day of June’ 2023, at the Kolkata.
DEPONENT
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
: _____day of November’ 2023.
Place
: Kolkata.
N
O T A R Y
IN THE DEBTS RECOVERY
TRIBUNAL III, KOLKATA
JEEVAN SUDHA
BUILDING
(8th
FLOOR)
42C, J.L.
NEHRU ROAD
KOLKATA
– 700 071
IA NO.
____________OF 2023
arising out of
SA NO ________ OF
2023
(Diary No.
____________of 2023)
In the matter of ;
SRABANI BASU
--- ---- APPLICANT
– VERSUS –
ICICI BANK AND OTHERS
----- ---- RESPONDENTS
INTERIM APPLICATION
Advocate
on Record;
Ashok Kumar Singh, Advocate Enrollment
No. F/872/2000, High Court Bar Association Room No. 15, High Court Calcutta,
Mobile Number 9883070666, 9836829666, Email : aksinghadvocate@rediffmail.com
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