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
Email : aksinghadvocate@rediffmail.com
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