IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI
PCM
Tower, 2nd Floor, 2 no. Mile, Sevoke Road, Siliguri - 734001.
I.A. no.
___________OF 2024
{Diary no.
__________of 2024}
in
SARFAESI APPLICATION
NO 26 OF 2022
{ Diary no. 256/2021
}
HASNA BEWA
--- ---- APPLICANT
– VERSUS –
PUNJAB NATIONAL BANK
----- ---- RESPONDENT
Application to set aside Sale Notice
dated 27/03/2024;
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,
wherein the Written Notes of Argument has been placed.
2.
That
the applicant received a Sale Notice dated 27-03-2024, only on 05-04-2024 being
delivered by the Postal Authority. The said notice as appeared has been booked
on 03-04-2024, in the Postal Tracking Report. The Respondent with oblique
motive prepared the said Sale Notice dated 27-03-2024, booked only on
03-04-2024. The said sale notice is a 3rd sale notice during
pendency of the present SA before the Hon’ble Tribunal.
Photostat copy of the said Sale Notice
dated 27-03-2024, with envelop and the postal track report are annexed herewith
and marked as Annexure “A” Collectively.
3.
That
the said Sale Notice allegedly demanded the purported earlier outstanding dues
amounting to Rs. 69,27,691.87 (Rupees Sixty Nine Lakh Twenty Seven Thousand Six
Hundred Ninety One and Eighty Seven paisa only), as on 02-07-2021 with further
interest and charges, within a period of 30 days from the date of the said
notice, failing which the respondent may be constrained to sell the secured
assets.
4.
That
the said Sale notice did not give any calculation or particulars as to how the
said Sale Notice allegedly demanded the purported earlier outstanding dues
amounting to Rs. 69,27,691.87 (Rupees Sixty Nine Lakh Twenty Seven Thousand Six
Hundred Ninety One and Eighty Seven paisa only), as on 02-07-2021 with further
interest and charges, while a Demand Notice dated 09-04-2021, given by the
respondent through their Learned Advocate Subhash Saha, furnished the
calculation and particulars’ of demand as follows;
|
Sl. No.
|
Account No.
|
SCHEME
|
Limit
|
Total Due
|
|
1
|
0700250032294
|
CCOTH
|
Rs.
40.00
|
Rs.
42,04,405.00
|
|
2
|
0700306740359
|
LACOV
|
Rs.
4.00
|
Rs.
4,18,453.00
|
|
3
|
0700306742490
|
CFITL
|
Rs.
2.81
|
Rs.
3,02,069.00
|
|
|
TOTAL
|
-
|
-
|
Rs. 49,24,927.00
|
Therefore the demand
appeared to be a sum of Rs. 49,24,927/- (Rupees Forty Nine Lakhs Twenty Four
Thousand and Nine Hundred Twenty Seven) only, as on 09-04-2021; thus on what
stretch of calculative imagination the said sum enhanced as a sum of Rs.
69,27,691.87 (Rupees Sixty Nine Lakh Twenty Seven Thousand Six Hundred Ninety
One and Eighty Seven paisa only), as on 02-07-2021, within a span of 2 (Two)
months and 23 (Twenty Three) days. The demanded sum of amount is a purposive
demand in the said sale notice by the respondent.
5.
The
said Sale notice did not give the clear 30 (Thirty) days to the applicant as
the said sale notice dated 27th day of March’ 2024, demanded money
within 30 days from the date of the said notice. While the said notice booked
only on 03/04/2024, with Post Office to serve on the applicant, and the same
was delivered by the Postal Authority on 05/04/2024 to the applicant; Therefore
the 30 days in terms of the respondent comes on 26th day of April’
2024, and in terms from the date of receipt of the said Sale Notice on
05/04/2024, the 30 (Thirty) days will come on 05/05/2024; thus an oblique
motive under the garb of the said sale notice dated 27th day of
March’ 2024, has been clearly seen as drawn by the respondent against the
applicant.
6.
That
since no notice under Section 13(2) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002, has ever been
served on the applicant, the measures under Section 13(4) is not warranted
under the Law. The respondent failed to substantiate as to when and on which
date the notice under Section 13(2) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002, has been
served on the applicant. The applicant is not in receipt of any notice which
termed as notice under Section 13(2) of the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002. Therefore
the measures initiated by the respondent are unlawful.
7.
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.
8.
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.
Photostat copy of the
Order dated 21/02/2022 is annexed herewith and marked as Annexure –“B”.
9.
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.
10. That the applicant
has brought series of serious allegations against the officers of the
respondent bank, which are yet to be addressed and adjudicated.
11.
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.
Photostat copy of the
said Sale Notice dated 24-03-2022, with Envelop and track report are annexed
herewith and marked as Annexure –“C” Collectively.
12.
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.
13.
That
the said Second Sale Notice dated 24-03-2022, has been challenged by way of
IA/193/2023, wherein the Hon’ble Tribunal directed the respondent to file the
up-to-date statement of account within 10 days along with the written objection
by Order dated 24-04-2023; But the same has not been complied with by the
respondent till the day of placing the present application.
Photostat copy of the
said Order dated 24-04-2023, is annexed herewith and marked as annexure – “D”.
14.
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.
15.
That
the respondent bank by avoiding submissions of the objection to the previous
sale notice dated 21/01/2022, & 24-03-2022, is actually admitting the case
of the applicant which says fraudulent activities of the bank officials.
16.
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.
17.
That
the respondent bank has claimed the same amount in sale notice dated 27/03/2024,
as was claimed in their sale notice dated 21/01/2022 & 24/03/2022. 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.
18.
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.
Photocopy of “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 E-Auction Sale
Notice in the News Paper dated 22-01-2022, are
collectively annexed herewith and marked as Annexure – “E”.
(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.
Photocopy of said Email is enclosing herewith and marked as Annexure – “F”
(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.
Photocopy of
Certificate of Closure of the Loan Accounts, are collectively annexed herewith
and marked as Annexure – “G”
(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/-;
Photocopy of Possession
Notice published in “Financial Express” as well as Bengali vernacular “Ekdin”
on their Edition on 10-11-2021, is annexed herewith and marked as Annexure – “H”
(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.
Photocopy of
Complaint to Police Authority and Bank Authority are collectively enclosed
herewith and marked as Annexure – “I”.
(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.
Photocopy of Sanctioned Letter dated 01-08-2018, is annexed herewith and
marked as Annexure – “J”.
(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.
Photocopy of Bank Statement showing payment of EMI, annexed herewith and
marked as Annexure – “K”.
(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.
Photocopy of Recovery recall notice dated 09-04-2021, is annexed
herewith and marked as Annexure – “L”.
(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.
19.
That
the applicant states and submit that Loan Amount under Loan account
0700306740359, and 0700306742490, were sanctioned but the Bank Officials have
siphoned money from the applicant on different pretext. The applicant has
already informed the concerned Bank Authority about taking away her money by
some officers, but those allegations have not been investigated. As such the
said sale notice is an outcome of a malafide intention and conduct.
20.
That
the applicant states and submit that what amount the applicant received as
Loan, She has already repaid the same. As such the applicant does not owe to
the bank. Therefore the impugned Sale notice does not stand in the eye of law
and it is an attempt of defendant to gain uncalled for money from the
applicant.
21.
That
the applicant states and submits that the concern Bank is not certain about the
loan amount as they have claimed 69,27,691.87, and odd from the applicant which
includes Rs. 18,83,206.87, arising out of loan
account no. 0700306734640, it is surprising
that the concerned respondent has published Sale notices of the mortgaged
property due to non-payment of Loan amount arising out of Loan account nos. 0700306734640 and
0700250032294, respectively. The said
two loan accounts cannot be merged.
22. That the
applicant states and submits that the defendant has declared the properties
being the residential building as non-performing assets. But an asset is always
appreciated not depreciated. Therefore definition of NPA is illusory and vague.
On this context the Secured Asset always gives Protection to the Bank.
Therefore the defendant should not be worried about payment of the Loan Amount
specially when the defendant’s officials siphoned Loan Money and taken payment
of the Loan Amount in the manner as stated herein above.
23. That the
applicant states and submits that the applicant does not evade to carry on her
burden and responsibility. It is only because of the looting money by Bank’s
Officials in Pandemic Situation when the entire world has to come to a
stand-still, the applicant has become a defaulter. Up-to pandemic, the
applicant never default in paying her monthly installment.
24. 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.
25. 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.
26. That the
applicant further pray that the illegal steps taken by the defendant under the
blanket of the SERRFESAI 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.
27. 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.
28. That the
applicant hereby prays that the Hon’ble Tribunal may be pleased to pass an
order quashing Third Sale Notice dated 27-03-2024, which has been received only
on 05-04-2024, 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.
29. 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
30. 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 SARFEASI Act, 2002 is bad in law and be quashed;
b. To set aside the notice of Sale being CS/MSD/Sale
Notice/10/2023-24, dated 27/03/2024, posted by the Defendant Bank, Booked on 03/04/2024;
c. To grant stay of Sale Notice dated 27/03/2024,
staying operations or taking any further recourse by the authorized officer of
the Defendant Bank ;
d.
To
pass an order to set aside the Sale Notice being CS/MSD/Sale Notice/10/2023-24,
dated 27-03-2024, posted by the Defendant Bank under Speed Post, Booked on 03/04/2024,
in the interest of justice;
e.
An
appropriate order of status-quo till the disposal of this case;
f.
For
an exemplary cost may be imposed upon the Defendant Bank;
g.
An
appropriate order prohibiting and or quashing the Defendant from giving or
further effect and / or action in furtherance to the impugned Sale Notice dated
27-03-2024 and also restraining them from taking any further steps under the
SARFEASI Act ;
h.
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 _________April’ 2024.
Signature
Identified by me
Advocate
Prepared
in my Chamber,
Advocate.
Dated
: _____April’ 2024.
Place
: Kolkata.
N O T A R Y
