Sunday, March 3, 2024

WNA in DRT Case

 

IN THE DEBTS RECOVERY TRIBUNAL SILIGURI

PCM Tower, 2nd Floor, 2 no. Mile, Sevoke Road,

Siliguri - 734001.

 

SARFAESI APPLICATION NO 26 OF 2022

{ Diary no. 256/2021 }

 

HASNA BEWA

--- ---- APPLICANT

VERSUS

 

PUNJAB NATIONAL BANK

----- ---- RESPONDENT

Written Notes of Argument

On behalf

The Applicant

 

The present SA application has been filed by the applicant challenging the proprietary and entirety of the Possession Notice dated 05.11.2021, published in daily English newspaper “Financial Express” on Wednesday, November 10, 2021, being mode of taking possession of secured assets in an unlawful manner by the Respondent.

 

The said Possession Notice dated 05.11.2021 published in daily English newspaper “Financial Express” on Wednesday, November 10, 2021, contained the following statements, which are contrary to the Law;

 

(a)   The said Possession Notice dated 05.11.2021, published in daily English News Paper “Financial Express” on Wednesday, November 10, 2021, which gives the particulars as for (i) Demand Notice dated 02.07.2021, (ii) Possession Notice dated 05.11.2021, (iii) Rs. 69,27,631.87 (Rupees Sixty Nine Lakhs Twenty Seven Thousand Six Hundred Thirty One and Eighty Seven paise only) interest charged upto 31.03.2021 as on 04.06.2021, and interest thereon.

 

(b)  The applicant was not in receipt of any possession notice dated 05.11.2021, and not even in receipt of any alleged purported notices under Section 13(2) of the Act, dated 02.07.2021. The information derived from the newspaper publication only. The applicant failed to understood the claimed amount being Rs. 69,27,631.87 (Rupees Sixty Nine Lakhs Twenty Seven Thousand Six Hundred Thirty One and Eighty Seven paise only) interest charged upto 31.03.2021 as on 04.06.2021, and interest thereon, as the sanctioned letter dated 01/08/2018clearly stated about the sanctioned of Cash Credit of Rs. 40,00,000/- (Rupees Forty Lakhs) only, and subsequently the Letter dated 09-04-2021, given by the Learned Advocate of the Respondent Bank stated as to dues as of Rs. 42,04,405.00 (Rupees Forty Two Lakhs Four Thousand and Four Hundred Five) only, and the same has been classified as NPA on 31.03.2021. the said Letter dated 09-04-2021, given demand of total sum of money with other loan accounts as Rs. 49,24,927/- (Rupees Forty Nine Lakhs Twenty Four Thousand and Nine Hundred Twenty Seven) only, which does not at par in demand made in the said purported alleged Possession Notice dated 05.11.2021.

 

(c)  The borrower having failed to repay the amount, notice is hereby given to the borrower and the public in general that the undersigned has taken possession of the property described herein below in exercise of powers conferred on him under sub-section (4) of Section 13 of Act read with rule 8 of the Security Interest Enforcement) Rules, 2002, on this the 05th day of November of the year 2021.

 

(i)           The undersigned has taken possession of the property described herein below in exercise of powers conferred on him under sub-section (4) of Section 13 of Act read with rule 8 of the Security Interest Enforcement) Rules, 2002, on this the 05th day of November of the year 2021. The scheme of Section 13(4) of the Act read with Rule 8(1) of the Rules makes it clear that the delivery of a possession notice together with affixation on the property and publications one mode of taking “possession” under Section 13(4) of the Act, and as such Section 17 of the Act is attracted one possession is taken under Rule 8(1) and Rule 8 (2) of the Rules read with Section 13(4)(a) of the Act.

 

(ii)          If a Secured creditor does not act in conformity with the Act to realize the secured debt, the borrower may take recourses to seeking appropriate relief from the DRT. Thus, the object of the Act would be stultified if the borrower must wait for sale notice to be issued or for the actual sale to take place before taking recourse to Section 17 of the Act. Therefore the borrower need not wait till the bank/ financial institution takes such steps, but may now, under Section 17 (1) of the Act, prefer an application to challenge these measures even at the stage of constructive possession by the bank/ financial institution.

 

Since the said Possession Notice dated 05.11.2021, has not assailed in conformity with the prescribed provisions of the SARFAESI Act, 2002, discussed above, the same would be set aside as not maintainable and void in the facts as well as in the eye of Law with exemplary cost on the respondent Bank. The applicant is entitled to get compensation in terms of the provision of Section 19 of the SARFAESI Act, 2002.

 

That’s, apart the applicant stated about the entire story of her that how the bank officials cheated her money taken due advantages of her rustiness & innocence. The complaint to the respondent Bank as well as to the Police has been annexed with the application.

 

The applicant is an honest borrower, which clearly depicted in her earlier loan account, which she has paid on time and obtain the NOC from the respondent Bank, the same has been annexed with the applicant.

 

Judicial References;

 

(i)           M/s. Hindon Forge Pvt. Limited & Anr. Versus State of Uttar Pradesh [(Civil Appeal No. 10873 of 2018 along with Civil Appeal No. 10874 of 2018)] (2019) 2 SCC 198

 

[ Held that a borrower can prefer an application under Section 17(1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, even before physical or actual possession of secured assets is taken over by banks/ financial institutions in exercise of their powers under Section 13(4) of the Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 ]

 

[ The SC set aside the Allahabad HC Order and held that a borrower is entitled to approach the DRT under Section 17 of the Act at the stage of Possession notice under Rule 8(1) and Rule 8(2) of the Rules ]

 

[ If a Secured creditor does not act in conformity with the Act to realize the secured debt, the borrower may take recourses to seeking appropriate relief from the DRT ]

 

[ 26. Section 19, which is strongly relied upon by Shri Ranjit Kumar, also makes it clear that compensation is receivable under Section 19 only when possession of secured assets is not in accordance with the provision of this Act and Rules made thereunder. The scheme of Section 13(4) read with Rule 8(1) therefore makes it clear that the delivery of a possession notice together with affixation on the property and publication is one mode of taking “possession” under Section 13(4). This being the case, it is clear that Section 13(6) kicks in as soon as this is done as the expression used in Section 13(6) is “after taking possession”. Also, it is clear that Rules 8(5) to 8(8) also kick in as soon as “possession” is taken under Rules 8(1) and 8(2). The statutory scheme, therefore, in the present case, is that once possession is taken under Rules 8(1) and 8(2) read with Section 13(4)(a), Section 17 gets attracted, as this is one of the measures referred to in Section 13(4) that has been taken by the secured creditor under Chapter III. ]

 

 

(ii)          Authorised Officer, Indian Overseas Bank and Another Versus Ashok Saw Mill (2009) 8 SCC 366

 

[ The Supreme Court interpreted the correlation between Sections 13(40 and 17 holding that the plethora of remedies and power conferred under Section 17 acts as “checks and balances” on the creditors from misusing their powers ]

 

[ Section 17 balances the stringent powers of recovery of their dues vested with the banks/ Financial Institutions and DRT can even restore possession after the same has been made over to the transferee by declaring any action under Section 13 as void ]


(d)   

IN THE DEBTS RECOVERY TRIBUNAL SILIGURI , PCM Tower, 2nd Floor, 2 no. Mile, Sevoke Road, Siliguri - 734001.

 

 

S. A.         NO. 27 OF 2022

{ Diary no. 254/2021 }

 

 

In the matter of :

Hasna Bewa,                                                                            ______Applicant

-      Versus –

 

Punjab National Bank

_______Defendant

 

 

 

 

 

Written Notes of Argument

On behalf

The Applicant

 

 

 

 

 

 

Advocate – on – record :

 

Ashok Kumar Singh, Advocate

High Court Bar association Room No. 15, High Court at Calcutta

Mobile Number : 9883070666 / 9836829666

 

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