Wednesday, November 13, 2024

application to set aside E-Auction Sale Notice before DRT

 

IN THE DEBTS RECOVERY TRIBUNAL III, KOLKATA

JEEVAN SUDHA BUILDING (8th FLOOR)

42C, J.L. NEHRU ROAD

KOLKATA – 700 071

 

IA NO. ______________Of 2024

(Diary No. ______________of 2024)

Arising out of

SARFAESI APPLICATION NO. 627 OF 2024

(Diary No. 1210 of 2024)

 

                                        In the matter of;

1.   M/s. Global Aqua, a proprietorship firm having its registered office at Premises being no. 44/1A, Shyamnagar Road, Police Station Dum Dum, Kolkata – 700055, District – North 24 Parganas.

 

2.   Jayanta Chowdhury, proprietor of M/s. Global Aqua, Son of Late Ajay Chowdhury, having Office and residence at Premises being no. 44/1A, Shyamnagar Road, Police Station – Dum Dum, Kolkata – 700055, District North 24 Parganas.

 

--- ---- PETITIONERS

 

VERSUS

 

1.   Canara Bank, Chowringhee Branch, having its Office address as Premises being no. 7, Kyd Street, Police Station – Park Street, Kolkata – 700016.

 

2.   Authorised Officer, Canara Bank, Chowringhee Branch, having its Office address as Premises being no. 7, Kyd Street, Police Station – Park Street, Kolkata – 700016.

 

----- ---- RESPONDENTS

 

AN APPLICATION TO SET ASIDE E-AUCTION SALE NOTICE DATED 11-11-2024;

The humble petition of the above named Petitioners, most respectfully;

Sheweth as under :

 

1.   That the above referred application has been placed under sub section (1) of Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, and the challenge is the Possession Notice dated 03-07-2024, under Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002, in respect of the Immovable Property categorized as Primary Security and Collateral Security, wherein the Primary Security is in respect of the Industrial Land as described and the Collateral Securities are the residential occupation, and thereby asked to pay Rs. 11,51,75,616.12/- (Rupees Eleven Crore Fifty One Lakhs Seventy Five Thousand Six Hundred Sixteen and paise twelve) only, within Sixty days. A copy of the said notice was pasted on the wall of the premise of the petitioner. The said possession notice issued by the concerned respondent bank is arising out of the Notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002.

 

Photostat Copies of the Possession Notice dated 03-07-2024, under Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002, and Notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, are annexed herewith and marked as Annexure – “A” Collectively.

 

2.   That the applicant is the proprietor of the Proprietorship Firm under the name and style of M/s. Global Aqua and is engaged in the business of processing, trading, and exports of fish and fishery products. Pertinently, the applicant availed credit facilities since the month of November’ 2016, in the nature of MSME Sahay, Car Loan, and Packing Credits, from the Respondent Bank, wherein the applicant paid in full, the said MSME Sahay Loan of Rs. 60 Lakhs, & Car Loan of Rs. 10 Lakhs, in terms prescribed by the Respondent Bank. The Term Loan has been continuing in terms of the repayment prescribed by the Respondent Bank. 

 

3.   That the said Term Loan being No. 0145766000027, has been sanctioned by the Respondent Bank considering the Credit worthiness of the Petitioner, on 27-12-2017, for a sum of Rs. 8,90,00,000/- (Rupees Eight Crore Ninety Lakhs) only, which the petitioner had been paying continuously to the respondent bank which commenced as per instructions of the respondent bank on 27/01/2018. The petitioner has paid a sum of Rs. 1,83,52,560/- (Rupees One Crore Eighty Three Lakhs Fifty Two Thousand and Five Hundred Sixty) only, as on 31/03/2020, Rs. 1,17,01,000/- (Rupees One Crore Seventeen Lakhs and One Thousand) only, as on 31/03/2021, Rs. 2,85,68,864/- (Rupees Two Crore Eighty Five Lakhs Sixty Eight Thousand and Eight Hundred Sixty Four) only, as on 31-03-2022, Rs. 2,23,42,230/- (Rupees Two Crore Twenty Three Lakhs Forty Two Thousand and Two Hundred Thirty) only, as on 31-03-2023, and Rs. 2,13,46,875/- (Rupees Two Crore Thirteen Lakhs Forty Six Thousand and Eight Hundred Seventy Five) only, as on 31-03-2024, therefore the total sum of repayment is Rs. 10,23,11,529/- (Rupees Ten Crore Twenty Three Lakhs Eleven Thousand and Five Hundred Twenty Nine) only, made by the Petitioner to the Respondent Bank as on 31-03-2024. The terms of the repayment by the Petitioner showed his credit worthiness and good concise in making repayment to the respondent bank.

 

Photostat Copy of the Term Loan Statements are annexed herewith and marked as Annexure – “B” Collectively.

 

4.   That the Reserve Bank of India (RBI) implemented a moratorium on loan payments from March 1 to August 31, 2020 to help the economy during the COVID-19 pandemic. On 24 March 2020, the Government of India under Prime Minister Narendra Modi ordered a nationwide Lockdown for 21 days, limiting movement of the entire 1.3 billion population of India as a preventive measure against the COVID-19 pandemic in India. It was ordered after a 14-hour voluntary public curfew on 22 March, followed by enforcement of a series of regulations in the country's COVID-19 affected regions. The lockdown was placed when the number of confirmed positive corona virus cases in India was approximately 500. Observers stated that the lockdown had slowed the growth rate of the pandemic by 6 April to a rate of doubling every six days, and by 18 April, to a rate of doubling every eight days. As the end of the first lockdown period approached, state governments and other advisory committees recommended extending the lockdown. The governments of Odisha and Punjab extended the state lockdowns to 1 May.  Maharashtra, Karnataka, West Bengal and Telangana followed suit. 

 

Photostat copies of RBI circular dated 27-03-2020, and the Regulatory Statement, are annexed herewith and marked as Annexure – “C” Collectively.

 

5.   That on 14 April, Prime Minister Narendra Modi extended the nationwide lockdown until 3 May, with a conditional relaxations, after 20 April for the regions where the spread had been contained or was minimal. On 1 May, the Government of India extended the nationwide lockdown further by two weeks until 17 May. The Government divided all the districts into three zones based on the spread of the virus—green, red and orange—with relaxations applied accordingly. On 17 May, the lockdown was further extended till 31 May by the National Disaster Management Authority.

 

6.   That on 30 May, it was announced that lockdown restrictions were to be lifted from then onwards, while the ongoing lockdown would be further extended till 30 June for only the containment zones. Services would be resumed in a phased manner starting from 8 June. It was termed as "Unlock 1.0". Modi later clarified that the lockdown phase in the country was over and that 'unlock' had already begun.

 

7.   That the second phase of unlock, Unlock 2.0, was announced for the period of 1 to 31 July, with more ease in restrictions. Unlock 3.0 was announced for August. Similarly, Unlock 4.0 was announced for September and Unlock 5.0 for the month of October. In the same way, Unlock 6.0 was announced for the month of November, Unlock 7.0 was announced for the month of December, Unlock 8.0 was announced for the month of January, and Unlock 9.0 was announced for the month of February.

 

8.   That the GECL is a loan for which 100% guarantee would be provided by National Credit Guarantee Trustee Company (NCGTC) and which will be extended in the form of additional working capital term loan facility to eligible MSMEs/ Business Enterprises and interested Pradhan Mantri Mudra Yojana (PMMY) borrowers. The loan tenure is six years from the date of the first disbursement, including a two-year moratorium period. The interest rate is 1 year MCLR plus 0.60% per annum, or MSME - RLLR plus 0.60% per annum. The maximum interest rate is 9.25% per annum. There is no pre-payment penalty if the loan is repaid early. The account can be operated in combination with applicable interest subvention schemes. The primary assets are those created out of the credit facility. The GECL has been surfaced during the Covid-19 period pursuing the financial situation in the Pandemic by the Government of India. In the instant case in hand the Respondent Bank on due intervention of the Government of India, has given sanctioned of Working Capital Term Loan under GECL Scheme vide Ref. No. 0145/111/2020-21, dated 22.09.2020, for a sum of Rs. 160 Lakhs (Rupees One Hundred Sixty Lakhs) only, to build up current assets, to meet operational liabilities and restart the business activity of Processing, Trading and Exports of Fish and Marine Products of the Petitioner. The Tenure of the said GECL is for 48 months, by giving 12 months moratorium on surfacing the 7.50% rate of interest thereon, wherein the Primary Security assets created out of the existing credit facility permitted. The Petitioner did not apply for such GECL credit facility. The Respondent Bank suo-moto has driven such financial facility to the Petitioner, considering his creditworthiness. The Petitioner obliged in making the repayment to the said GECL Financial facility to the respondent bank. The Petitioner had paid a sum of Rs. 3,39,774/- (Rupees Three Lakhs Thirty Nine Thousand and Seven Hundred Seventy Four) only, as on 31-03-2021, Rs. 28,59,000/- (Rupees Twenty Eight Lakhs and Fifty Nine Thousand) only, as on 31-03-2022, Rs. 55,88,896/- (Rupees Fifty Five Lakhs Eighty Eight Thousand and Eight Hundred Ninety Six) only, as on 31-03-2023, and Rs. 56,73,815/- (Rupees Fifty Six Lakhs Seventy Three Thousand and Eight Hundred Fifteen) only, as on 31-03-2024, therefore a total sum of Rs. 1,44,61,485/- (Rupees One Crore Forty Four Lakhs Sixty One Thousand and Four Hundred Eighty Five) only has been paid by the Petitioner to the Respondent Bank by 31-03-2024. Pertinently, the tenure of the repayment has not yet been expired.

 

Photostat copy of the GECL guideline and related notification with the GECL Loan Statements are annexed herewith and marked as Annexure “D” Collectively.

 

9.   That the Petitioner had availed Packing Credit Limit understand as PC/FDB/FBE, from the Respondent Bank on 16/03/2016, for a sum of Rs. 200 Lakhs for purchase of raw material and for other pre-shipment expenses and for discount/negotiation/purchase of export bills against confirmed orders/ letter of credit of prime bank, backed by buyer wise policy, the period for repayment is 90 days, the tenability of the said Packing Credit is one year from the date of sanction. The Fresh Packing Credit Limit has been given by the Respondent Bank on 24/11/2017 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit from 450 Lakhs to Rs. 550 Lakhs. The Fresh Packing Credit Limit has been given by the Respondent Bank on 22/05/2019 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit of Rs. 550 Lakhs. The Fresh Packing Credit Limit has been given by the Respondent Bank on 18/10/2019 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit 900 Lakhs. The Fresh Packing Credit Limit has been given by the Respondent Bank on 22/03/2021 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit of Rs. 600 Lakhs. The Fresh Packing Credit Limit has been given by the Respondent Bank on 07-09-2022 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit of Rs. 600 Lakhs. The Fresh Packing Credit Limit has been given by the Respondent Bank on 29/02/2024 to the Petitioner upon total payment realization of the earlier Packing Credit limit, to the limit of Rs. 300 Lakhs. The Petitioner has made the repayment of the Packing Credit Limit time and again in terms prescribed by the Respondent Bank.

 

Photostat copy of the Sanction Memorandums of Packing Credit is annexed herewith and marked as Annexure “E” Collectively.

 

Petitioners crave leave of the Hon’ble Tribunal to produce the Bank Statements in respect of Current Account Nos. 0145214000007 & 0145201003431, at the time of hearing of the present application.

 

10.         That the said Demand Notice dated 28-03-2023, had various errors which include the housing loan and home secure loan which have never been disbursed to the petitioner. The said demand notice stated that the Loan accounts of the petitioner as NPA on 22-03-2024, yet the Demand Notice dated 28-03-2023 was on 28-03-2023. Moreover, The said Demand Notice dated 28-03-2023, stated that the operation and conduct of financial assistance or credit facilities had become irregular since October, 2020. If that allegation is held to be true, the Respondent Bank had sanctioned various renewals even in 2024. In the case in hand the respondent Bank by a Letter being Reference No. ROKOL/MSMESULABH/SANC/206A/2023-24, dated 29-02-2024Permitted renewal with realignment of existing PC/FDB/FBE limit of Rs. 600.00 Lakhs to PC/FDB/FBE limit of Rs. 300.00 Laks and OCC/ODBD limit of Rs. 300.00 Lakhs, for a period of one year from the date of sanction. Such discrepancies in an important demand Notice which is the basis of initiating recourses under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, cannot be taken in a casual approaches, so far. As such said Demand Notice is bad in law for being factually incorrect more particularly did not disclose the real debt. Furthermore, the said Demand Notice included the Housing Loan and Home Secure Loan which has never been disbursed to the Petitioner. Therefore, the amount demanded in the said Demand Notice is also bad in law and a clear indication of malpractice by the Respondent Bank. Such unfair trade practices are against the guidelines set forth by the Reserve Bank of India and as such the Reserve Bank of India had issued notification / circular being RBI/2024-25/30 DoS.Co.PPG.SEC.1/11.01.005/2024-25, dated 29-04-2024, addressing such issues and had directed the Financial Institutions to review their practices regarding mode of disbursal of loan, application of interest and other charges and take corrective action, including system level changes, as may be necessary, to address the issues highlighted above. The Respondent Bank had been wary about the non-disbursal of the housing loan, yet they did not take any corrective measure.

 

11.         That the Petitioner had deposited Rs. 35,00,000/- (Rupees Thirty Five Lakhs) only in the month of February, 2024, out of which Rs. 10,50,000/- (Rupees Ten Lakhs and Fifty Thousand) only, was converted into Fixed Deposit whimsically by the Respondent Bank, without obtaining any consent and knowledge of the Petitioner. If the Respondent Bank had been fair in its practice and realized the amount towards GECL Loan the account of the petitioner would not have been consider for NPA, any more. Very surprisingly, the Respondent Bank had liquidated the said Fixed Deposit of Rs. 10,50,000/- (Rupees Ten Lakhs and Fifty Thousand) only, on 05/03/2024, and the same was adjusted towards packing credit loans. Moreover, after the realignment of the Petitioner’s loan were sanctioned on 29-02-2024. Such unfair trade practices by the respondent bank can be construed as mala fide and corrupt which has resulted in undue hardship upon the petitioner.

 

12.         That the Petitioner had sent an e-mail dated 22-03-2024 thereby informing the respondent bank regarding its inability to pay the required GECL and term loan dues and had further requested to liquidated the Fixed Deposits held with the Respondent Bank towards the payment of the aforementioned payments. Furthermore, the Petitioner had stated the financial condition will change in the month of April’ 2024, wherein the Petitioner will be able to make the payments.

 

13.         That the Respondent Bank replied to its e-mail dated 22-03-2024 stating inter alia that the Fixed Deposits lying with the Respondent Bank are parts of Security for the Loan availed by the Petitioner and further stated that the Petitioner is required to clear the overdues otherwise the Petitioner’s account would be classified as a Non-Performing Asset (NPA) on that day.

   

Photostat copies of the Email communications between the Petitioner and the Respondent Bank are annexed herewith and marked as Annexure – “F” Collectively.

 

14.         That the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, has been suffering from inherent defects including that on the headings of the Loan Amount allegedly claimed to have been disbursed to the petitioner. For instance the demand of payment against Housing Loan is included in the demand notice but the same is a fictitious loan transaction to burden the petitioner, illegally.

 

15.         That so long a concrete statement of account is not prepared showing the actual debt of the petitioner, no notice demanding payment on the basis of fictitious transaction can be served and acted upon against any person. In the instant case the dubious stands of the respondent bank has surfaced; Specially when in-spite of having the specific knowledge of non disbursement of housing loan to the petitioner they still stick to their demand. Such arrogance and fraudulent approach of the respondent bank are surprising and require immediate intervention of the Hon’ble Tribunal.

 

16.         That the desperation of the respondent bank is also clearly visible from their conduct in issuing notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002. This conduct itself is an attempt to throttle the petitioner, so that the respondent bank can behave like a vulture on the dead body of the petitioner. It is the obligation of the respondent bank as to why they can claim money from the proposed disbursement of housing loan, without correction of the mistake of the bank. Further arrangement to realize, the said amount in itself to fraud and perjury.

 

17.         That the petitioner states that the notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is totally misplaced and premature and as such it should be stayed by the Hon’ble Tribunal.

 

18.         That the Learned Advocate for the respondent bank in his Notice dated 07/10/2024, and in his subsequent Corrigendum dated 19th day of October’ 2024, have enhanced the demand to the extent of Rs. 12,46,84,542.58 (Rupees Twelve Crore Forty Six Lakhs Eighty Four Thousand Five Hundred Forty Two and paise Fifty Eight) only. This has been done even after knowledge about the fictitious transaction prepared by the bank.  The Learned Advocate of the bank has not take any steps.

 

Photostat Copy of the said Notice dated 07/10/2024, and subsequent Corrigendum dated 19th day of October’ 2024, are annexed herewith and marked as Annexure – “G” Collectively.

 

19.         That the Petitioner states that the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, has been suffering from inherent defects including that on the headings of the Loan Amount allegedly claimed to have been disbursed to the petitioner. For instance the demand of payment against Housing Loan is included in the demand notice but the same is a fictitious loan transaction to burden the petitioner, illegally.

 

20.         That the Petitioner states that Housing Loan has never been disbursed even after sanctioned by the Respondent Bank. No money on account of Housing Loan  No. 160001872780, has ever been given to the Petitioner or to the Developer favouring to the Petitioner in Purchasing the Flat in terms of registered Agreement for sale dated 21/10/2021, registered in Book No. I, Volume No: 1904-2021, Page No: 545024 to 545075, Being No. 190411911/2021, registered in the office of the A.R.A. - IV KOLKATA. Surprisingly, the Respondent bank had taken the EMIs from the Petitioner, deducting the amount on their own without any consent or intimation to the Petitioner. The Petitioner is astonished in coming to the knowledge of such fact which surfaced in the purported notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, and on subsequent recourses adopted by the Respondent Bank against the Petitioner. The Petitioner is not liable to pay any money on account of non-disbursement of Housing Loan. The Petitioner is entitled to get his money back with appropriate banking rate of interest thereon which has been deducted and or taken by the Respondent Bank as alleged illegal EMIs of the said Housing Loan.

 

Photostat Copy of the Sanction Memorandum of Housing Loan dated 27-09-2023, is annexed herewith and marked as Annexure – “H”.

 

21.         That the Petitioner states that the Petitioner found another Loan Account being Housing Loan Secure Account Number 164003832543, in the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, which has never been applied by the Petitioner and sanctioned by the Respondent Bank, though a different loan account has been surfaced at the behest of the Respondent Bank and surprisingly EMIs are being deducted by the Respondent Bank without any information and consent of the Petitioner. Therefore the Petitioner is entitled to get his money back with appropriate banking rate of interest which has been illegally taken by the Respondent Bank.

 

22.         That the Petitioner states that Housing Loan  No. 160001872780, and Housing Loan Secure Account Number 164003832543, are the established cause of fraud by the Respondent Bank against the Petitioner to ruin his business and to reveal such truth, the Forensic Audit is required by the independent Auditor upon the necessary directions of the Hon’ble Tribunal.

 

23.         That the Petitioner states that Forensic Audit is necessary to unearth the true states of affaire in giving the financial facilities by the Respondent Bank as well as in availing the financial facilities by the Petitioner, herein. More particularly in respect of Housing Loan  No. 160001872780, and Housing Loan Secure Account Number 164003832543, which are never given or disbursed by the Respondent Bank to the Petitioner, though the EMIs have been deducted and taken on such fraudulent fictitious Loan Accounts by the respondent Bank.

 

24.         That the Petitioner states that the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, does not disclose the Real Debts owed by the Respondent Bank against the Petitioner, herein.

 

25.         That the Petitioner states that the  said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is a fictitious Demand Notice on the Petitioner. Pertinently no notice of demand has ever been served on the Petitioner.

 

26.         That the Petitioner states that the alleged Primary Security being EMT of Industrial Land at Nawapala P.S. Bagnan, Block Bagnan under Saratchandra Gram Panchayat, District Howrah, Pin -711303 comrising in RS Plot No. 482, 486, 504, 555, 544, 542, 543, under J.L. No. 25, together with the factory shed, are the Plot of Land of Agricultural Nature on the day, the Original Title Deed has been submitted by the Petitioner to Create the Equatable Mortgage  against the Term Loan Account Number 0145766000027, in the month of December’ 2017. The Properties are of agricultural nature on the date of creation of the equitable mortgage to the Respondent Bank, therefore the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is not applicable in respect of the said properties of the agricultural nature in terms of Section 31(i) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002.

 

27.         That the Petitioner states that the Classification of Loan Accounts as NPA has not been adhered to the RBI Guide line, as the Respondent Bank has realigned the existing limits of the Loan Account by the Sanctioned Memorandum dated 29-02-2024, and thereafter on elapse of less than 30 (thirty) days, on 22-03-2024, the said Loan accounts has been classified as NPA by the Respondent Bank, which is unbelievable and not acceptable in the eye of Law. Facts showed the illegality in serving the alleged purported notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002,  on the Petitioner.

 

28.         That the Petitioner states that the Possession Notice under Section 13(4) of the Act, 2002, for immovable property, dated 03-07-2024, is not in prescribed terms of Rule 8(1) of the Security Interest (Enforcement) Rules, 2002, the description of the properties has not been given with the butted and bounded. The agricultural property has been described therein which is a blocked land. Such encumbrances have not been disclosed even after having full knowledge.

 

29.         That the Petitioner states that the desperation of the respondent bank is also clearly visible from their conduct in issuing notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002. This conduct itself is an attempt to throttle the petitioner, so that the respondent bank can behave like a vulture on the dead body of the petitioner. It is the obligation of the respondent bank as to why they can claim money from the proposed disbursement of housing loan, without correction of the mistake of the bank. Further arrangement to realize, the said amount in itself to fraud and perjury.

 

Photostat copy of the Notice for Exercising the Right under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, dated 07-10-2024, is annexed herewith and marked as Annexure – “I”.

 

30.         That the Petitioner states that the notice dated 07-10-2024, under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002 is a final call of the illegal recourses of the Respondent Bank served on the petitioner. Such illegal recourses should be nipped in the bud.

 

31.         That the Petitioner states that the Respondent Bank in pursuing their illegal recourses headed to published the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, wherein the statements have no concern with the real facts, so far. The reserve price stated is not correct one, therein. Such an attempt of the respondent bank is malign the image of the Petitioner in his business field. The respondent bank compelling the petitioner by its whimsical recourses   in a much purported manner to withdraw his business and lost his immovable properties.

 

Photostat copy of the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, are annexed herewith and marked as Annexure – “J”, Collectively.

 

32.         That the Petitioner states that the enigmatic approach of the respondent bank has created fauxpas to trap him illegally. A nationalized bank is not expected to get involved in creating such atmosphere which is equivalent to literally extortion. The Act itself resembles the scheme of vulture accounts more familiar in the western countries. In the instant case a nationalized bank has failed the expectation of the billions. As such the Hon’ble Tribunal should school them accordingly.

 

33.         Being aggrieved by and dissatisfied with the purported impugned the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, as well as the following Notice under Section 13(4) of the Act, 2002, for immovable property, dated 03-07-2024, as well as notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, the petitioner beg to move this application on the following amongst other;

 

GROUND

 

I.             FOR THAT in terms of the prescribed provisions of the Statute, the Authorised Officer has to mention the true and correct Demand of Debt, in the Demand Notice under Section 13(2) of the Act, 2002;

 

II.           FOR THAT the Respondent Bank have wrongly and prematurely classified the Loan accounts of the Petitioner as a Non Performing Assets (NPA) without following the rules set forth by the Reserve Bank of India;

 

III.         FOR THAT the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, has been suffering from inherent defects including that on the headings of the Loan Amount allegedly claimed to have been disbursed to the petitioner. For instance the demand of payment against Housing Loan is included in the demand notice but the same is a fictitious loan transaction to burden the petitioner, illegally;

 

IV.         FOR THAT so long a concrete statement of account is not prepared showing the actual debt of the petitioner, no notice demanding payment on the basis of fictitious transaction can be served and acted upon against any person. In the instant case the dubious stands of the respondent bank has surfaced; Specially when in-spite of having the specific knowledge of non disbursement of housing loan to the petitioner they still stick to their demand. Such arrogance and fraudulent approach of the respondent bank are surprising and require immediate intervention of the Hon’ble Tribunal;

 

V.           FOR THAT the desperation of the respondent bank is also clearly visible from their conduct in issuing notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002. This conduct itself is an attempt to throttle the petitioner, so that the respondent bank can behave like a vulture on the dead body of the petitioner. It is the obligation of the respondent bank as to why they can claim money from the proposed disbursement of housing loan, without correction of the mistake of the bank. Further arrangement to realize, the said amount in itself to fraud and perjury;

 

VI.         FOR THAT the notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is totally misplaced and premature and as such it should be stayed by the Hon’ble Tribunal;

 

VII.       FOR THAT the Learned Advocate for the respondent bank in his Notice dated 07/10/2024, and in his subsequent Corrigendum dated 19th day of October’ 2024, have enhanced the demand to the extent of Rs. 12,46,84,542.58 (Rupees Twelve Crore Forty Six Lakhs Eighty Four Thousand Five Hundred Forty Two and paise Fifty Eight) only. This has been done even after knowledge about the fictitious transaction prepared by the bank.  The Learned Advocate of the bank has not take any steps;

 

VIII.     FOR THAT the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, has been suffering from inherent defects including that on the headings of the Loan Amount allegedly claimed to have been disbursed to the petitioner. For instance the demand of payment against Housing Loan is included in the demand notice but the same is a fictitious loan transaction to burden the petitioner, illegally;

 

IX.        FOR THAT the Housing Loan has never been disbursed even after sanctioned by the Respondent Bank. No money on account of Housing Loan  No. 160001872780, has ever been given to the Petitioner or to the Developer favouring to the Petitioner in Purchasing the Flat in terms of registered Agreement for sale dated 21/10/2021, registered in Book No. I, Volume No: 1904-2021, Page No: 545024 to 545075, Being No. 190411911/2021, registered in the office of the A.R.A. - IV KOLKATA. Surprisingly, the Respondent bank had taken the EMIs from the Petitioner, deducting the amount on their own without any consent or intimation to the Petitioner. The Petitioner is astonished in coming to the knowledge of such fact which surfaced in the purported notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, and on subsequent recourses adopted by the Respondent Bank against the Petitioner. The Petitioner is not liable to pay any money on account of non-disbursement of Housing Loan. The Petitioner is entitled to get his money back with appropriate banking rate of interest thereon which has been deducted and or taken by the Respondent Bank as alleged illegal EMIs of the said Housing Loan;

 

X.          FOR THAT the Petitioner found another Loan Account being Housing Loan Secure Account Number 164003832543, in the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, which has never been applied by the Petitioner and sanctioned by the Respondent Bank, though a different loan account has been surfaced at the behest of the Respondent Bank and surprisingly EMIs are being deducted by the Respondent Bank without any information and consent of the Petitioner. Therefore the Petitioner is entitled to get his money back with appropriate banking rate of interest which has been illegally taken by the Respondent Bank;

 

XI.        FOR THAT the Housing Loan  No. 160001872780, and Housing Loan Secure Account Number 164003832543, are the established cause of fraud by the Respondent Bank against the Petitioner to ruin his business and to reveal such truth, the Forensic Audit is required by the independent Auditor upon the necessary directions of the Hon’ble Tribunal;

 

XII.      FOR THAT the Forensic Audit is necessary to unearth the true states of affaire in giving the financial facilities by the Respondent Bank as well as in availing the financial facilities by the Petitioner, herein. More particularly in respect of Housing Loan  No. 160001872780, and Housing Loan Secure Account Number 164003832543, which are never given or disbursed by the Respondent Bank to the Petitioner, though the EMIs have been deducted and taken on such fraudulent fictitious Loan Accounts by the respondent Bank.

 

XIII.    FOR THAT the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, does not disclose the Real Debts owed by the Respondent Bank against the Petitioner, herein;

 

XIV.    FOR THAT the said notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is a fictitious Demand Notice on the Petitioner. Pertinently no notice of demand has ever been served on the Petitioner;

 

XV.      FOR THAT the alleged Primary Security being EMT of Industrial Land at Nawapala P.S. Bagnan, Block Bagnan under Saratchandra Gram Panchayat, District Howrah, Pin -711303 comrising in RS Plot No. 482, 486, 504, 555, 544, 542, 543, under J.L. No. 25, together with the factory shed, are the Plot of Land of Agricultural Nature on the day, the Original Title Deed has been submitted by the Petitioner to Create the Equatable Mortgage  against the Term Loan Account Number 0145766000027, in the month of December’ 2017. The Properties are of agricultural nature on the date of creation of the equitable mortgage to the Respondent Bank, therefore the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is not applicable in respect of the said properties of the agricultural nature in terms of Section 31(i) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002;

 

XVI.    FOR THAT the Classification of Loan Accounts as NPA has not been adhered to the RBI Guide line, as the Respondent Bank has realigned the existing limits of the Loan Account by the Sanctioned Memorandum dated 29-02-2024, and thereafter on elapse of less than 30 (thirty) days, on 22-03-2024, the said Loan accounts has been classified as NPA by the Respondent Bank, which is unbelievable and not acceptable in the eye of Law. Facts showed the illegality in serving the alleged purported notice dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002,  on the Petitioner;

 

XVII.  FOR THAT the Possession Notice under Section 13(4) of the Act, 2002, for immovable property, dated 03-07-2024, is not in prescribed terms of Rule 8(1) of the Security Interest (Enforcement) Rules, 2002, the description of the properties has not been given with the butted and bounded. The agricultural property has been described therein which is a blocked land. Such encumbrances have not been disclosed even after having full knowledge;

 

XVIII.FOR THAT the desperation of the respondent bank is also clearly visible from their conduct in issuing notice under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002. This conduct itself is an attempt to throttle the petitioner, so that the respondent bank can behave like a vulture on the dead body of the petitioner. It is the obligation of the respondent bank as to why they can claim money from the proposed disbursement of housing loan, without correction of the mistake of the bank. Further arrangement to realize, the said amount in itself to fraud and perjury;

 

XIX.    FOR THAT the notice dated 07-10-2024, under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002 is a final call of the illegal recourses of the Respondent Bank served on the petitioner. Such illegal recourses should be nipped in the bud;

 

XX.      FOR THAT the Respondent Bank in pursuing their illegal recourses headed to published the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, wherein the statements have no concern with the real facts, so far. The reserve price stated is not correct one, therein. Such an attempt of the respondent bank is malign the image of the Petitioner in his business field. The respondent bank compelling the petitioner by its whimsical recourses   in a much purported manner to withdraw his business and lost his immovable properties;

 

XXI.    FOR THAT the enigmatic approach of the respondent bank has created fauxpas to trap him illegally. A nationalized bank is not expected to get involved in creating such atmosphere which is equivalent to literally extortion. The Act itself resembles the scheme of vulture accounts more familiar in the western countries. In the instant case a nationalized bank has failed the expectation of the billions. As such the Hon’ble Tribunal should school them accordingly;

 

XXII.  FOR THAT the actions of the Respondent Bank is otherwise ex facie bad in law and hence not maintainable;

 

34.               That in the given facts and circumstances, your petitioner seeks to get the direction of the Hon’ble Tribunal on the Respondent Bank to set aside the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, in the interest of administration of justice.

 

35.               Unless Orders as prayed for herein are made the Applicant shall suffer irreparable loss, prejudice and injury thereof.

 

36.               That this application is made bona fide and for the end of justice.

 

It is therefore, most respectfully prayed as follows:-

 

a.    To set aside the E-Auction Sale Notice dated 11-11-2024, in the Bengali daily News Paper “AAJKAL”, and in an English daily News Paper “Business Standard” on 11th day of November’ 2024, in the interest of administration of Justice;

 

b.   To restrained 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 07-10-2024, for exercising the right under Section 13(8) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002; 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 OF SECURED ASSETS /PROPERTIES property of the Petitioner;

 

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 28-03-2023 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 application;

 

e.    For an exemplary cost may be imposed upon the Respondent Bank;

 

f.     An appropriate order prohibiting and or quashing the concerned Respondent from giving or further effect and / or action in furtherance to Possession Notice dated 03-07-2024, 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 OF SECURED ASSETS /PROPERTIES

Description of immovable property

 

Sl. No.

Description of the Immovable Securities

1

Hypothecation of Plant & Machinery in the factory.

EMT of Industrial Land at Nawapala P.S. Bagnan, Block Bagnan II under Saratchandra Gram Panchayat, District Howrah, Pin – 711303, in the name of Jayanta Chowdhary.

R.S. Plot – 482, 486, 504, 555, 544, 542, 543, J.L. No. 25

 

EMT of factory shed/ boundary at Nawapala P.S. Bagnan, Block Bagnan II under Saratchandra Gram Panchayat, District Howrah, Pin – 711303, in the name of Jayanta Chowdhary.

R.S. Plot – 482, 486, 504, 555, 544, 542, 543, J.L. No. 25

 

2

EMT of property at 2nd Floor in G +2 storied residential building at Mouza Satganchi, J.L. No. 20, Holding No. 61 Purba Bagan Colony Premises No. 44/1A, Shyamnagar Road, Kolkata – 700055, measuring 1034 Sq. ft. Super Built Up area and 398 Sq. ft. or roof area in the name of Jayanta Choudhary.

Boundaries as per valuation report :

North : Shyamnagar Road;

South : Property of Mr. Ashoke Saha;

East : 44/1, Shaymnagar Road;

West : 44/2, Shyamnagar Road;

 

3

EMT of residential flat situated at 3rd floor of partly G+4 storied building at premises no. DC-9/15, Deshbandhu Nagar, Mouza – Raghunathpur, J.L. No. 8, RESA No. 134, Touzi No. 3027, R.S. Khatian No. 220, R.S. Dag No. 754, L.R. Dag no. 754, P.O. – Deshbandhunagar, P.S. Baguihati, Kolkata – 700059, District 24 Parganas North, under Rajarhat Gopalpur Municipality in the name of Jayanta Choudhary.

Boundaries as per valuation Report :

North : 12 ft wide Road;

South : Property of Mr. M.L. Banerjee;

East : P.W.D. Canel;

West : Property of Mr. Sunil Saha;

 

 

 VERIFICATION

 

                   I, Jayanta Chowdhury, Proprietor of M/s. Global Aqua, being the petitioner, hereby solemnly verify that the contents of paragraphs 1 to _____ 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 ___________’ 2024.

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

Affidavit of Jayanta Chowdhury, proprietor of M/s. Global Aqua, Son of Late Ajay Chowdhury, having Office and residence at Premises being no. 44/1A, Shyamnagar Road, Police Station – Dum Dum, Kolkata – 700055, District North 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 ______________’ 2024, at the Kolkata.

 

 

 

 

 

                                                                   DEPONENT

                                                                   Identified by me,

 

                                                                   Advocate.

Prepared in my Chamber,

 

Advocate.

Dated : _____day of __________’ 2024.

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 2024

(Diary No. __________of 2024)

arising out of

SA NO 627 OF 2024

(Diary No. 1210 of 2024)

 

In the matter of ;

GLOBAL AQUA & ANR.

--- ---- PETITIONERS

VERSUS

 

CANARA BANK & ANR.

----- ---- RESPONDENTS

 

 

 

 

APPLICATION TO SET ASIDE E-AUCTION SALE NOTICE DATED 11-11-2024;

 

 

 

 

 

Advocate on Record;

 

Ashok Kumar Singh, Advocate High Court Bar Association Room No. 15, High Court Calcutta, Mobile Number : 9883070666, 9836829666, Email : aksinghadvocate@rediffmail.com