DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Jayanta
Chowdhury, proprietor of M/s. Global Aqua, Son of Late Ajay Chowdhury, aged
about 56 years, having his office and residence at Premises being no. 44/1A,
Shyamnagar Road, Police Station – Dum Dum, Kolkata – 700055, District North 24
Parganas, Mobile No. 9836368295, Email : globalaquakol@gmail.com
______Petitioner
-Versus-
1.
Canara Bank, Circle Office Kolkata,
having its Office at Bells House, Premises being no. 21, Camac St, Kankaria Estates, Park Street
area, Kolkata, West Bengal 700016.
2.
Canara Bank, Chowringhee Branch, having
its Office address as Premises being no. 7, Kyd Street, Police Station – Park
Street, Kolkata – 700016. Email : cb0145@canarabank.com
3.
The Manager, Canara Bank, Chowringhee
Branch, having its Office address as Premises being no. 7, Kyd Street, Police
Station – Park Street, Kolkata – 700016. Email : managercb0145@canarabank.com
______
Respondents
To
The Hon’ble T.S. Sivagnanam, Chief
Justice and His Companion Justices of the said Hon’ble Court.
The
humble petition of the petitioner above named most respectfully;
SHEWETH:
1. That
the Petitioner is Citizen of India, and has been residing at the address given
in the cause title of the application.
2. That
the petitioner 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 petitioner
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 petitioner 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 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, and the Deed of Agreement for Sale
dated 21/10/2021, are annexed herewith and marked as Annexure – “P-1”.
Collectively.
4. That
the said notice under Section 13(2) of the SARFAESI Act, 2002, in its SCHEDULE
– A given the details of the Credit facility/ies availed by the Borrower, as
follows;
|
Sl. No. |
Loan No. |
Nature of Loan/ Limit |
Date of Sanction |
Amount in Rs. |
|
3 |
160001872780 |
Housing Loan |
27-09-2023 |
60,00,000.00 |
|
4 |
164003832543 |
Home Loan Secure |
30-09-2023 |
2,68,969.00 |
Further, the said notice under Section
13(2) of the SARFAESI Act, 2002, in its SCHEDULE – C given the details of
liability as on 28/03/2024, as follows;
|
Sl. No. |
Loan No. |
Nature of Loan/ Limit |
Rate of interest |
Liability with interest as on
28/03/2024 |
|
3 |
160001872780 |
Housing Loan |
11.15 |
2,04,705.30 |
|
4 |
164003832543 |
Home Loan Secure |
9.35 |
1,33,816.82 |
The Schedules and the amount being the
Liability with interest as on 28/03/2024, in respect of the Housing Loan at Sl.
No. 3, and Home Loan Secure at Sl. No. 4, clearly shows a fictitious
transaction held by the respondent bank. The said shame transactions amount has
been duly included in the amount claimed or demanded in the said demand notice
under Section 13(2) of the SARFAESI Act, 2002.
Photostat Copy of the Demand Notice
under Section 13(2) of the SARFAESI Act, 2002, is annexed herewith and marked
as Annexure – “P-2”
5. That
while the Petitioner was advised to submit the original deed of sale agreement
dated 21/10/2021, being the part of the loan approval process initiated by the
respondent bank. In absolute good faith and trust, the Petitioner complied with
such request and submitted the said original deed of sale agreement dated
21/10/2021, though the concerned respondent bank even after sanctioned the
Housing Loan did not disburse any money to the Petitioner. Therefore the
Petitioner made a request for return of the said Original deed of sale
agreement dated 21/10/2021, by letter dated 07/10/2024, which the respondent
bank is in receipt, though did not return the original deed of sale agreement
dated 21/10/2021.
Photostat copy of the Letter dated 07/10/2024,
is annexed herewith and marked as Annexure – “P-3”.
6. That
the Petitioner again wrote a letter dated 26th day of October’ 2024,
through his Learned Advocate, asking for return of the Original Agreement for
Sale dated 21/10/2021, which is a registered indenture. The concerned
respondent bank is in receipt of the said letter sent through the Learned
Advocate; But did not return the said Original registered Agreement for Sale
dated 21/10/2021.
Photostat copies of the Letter dated 26th
day of October’ 2024, with postal receipt and the track report are annexed
herewith and marked as Annexure – “P-4” Collectively.
7. The
concerned respondent bank had sanctioned the said Housing Loan, obtained the
Original registered agreement for sale dated 21/10/2021, but did not disburse
any loan amount to the Petitioner. Very surprisingly, the concerned respondent
bank has taken EMIs even after the alleged purported date of NPA, from the
Saving Bank Account of the Petitioner lying with the respondent bank.
8. That
the Petitioner have no iota or knowledge about the Loan Account shown as Home
Loan Secure bearing no. 164003832543,
as the Petitioner did never applied for such purported alleged loan as shown in
the impugned Demand notice under Section 13(2) of the SARFAESI Act, 2002. The
petitioner did not get any sanctioned letter for the said purported alleged
loan being Home Loan Secure. This is very surprising as well as shocking that
how and when the concerned respondent bank has done such wrongful recourses against
the Petitioner to ruined his business, by way of entering the wrongful as well
as non-existence loan accounts and fictitious transactions to demolish the
Petitioner’s business.
9. That
the Petitioner state that an amount of Rs. 60 Lakhs was credited to the Housing
Loan on 20-09-2023 and at the same time the bank statement dated 18-11-2024,
shows that on 26/03/2024, the amount has been debited from the loan account,
such statement actually support the contention of the petitioner on the
deception of the concerned respondent bank, since the notice under Section
13(2) of the SARFAESI Act, 2002, is allegedly issued on 28/03/2024, when the
said amount of Rs. 60 Lakhs, as per the statements of the bank was included.
Moreover the personal savings account of the petitioner bearing no.
0145101053228, lying with the concerned respondent bank has been used for the
deduction of monthly installments including interest from the alleged
disbursement of the 60 Lakhs towards Housing Loan. Such conduct of the concerned
respondent bank is self contradictory, illegal, and they are liable to return
such amount with interest and compensation.
Photostat copy of the Housing Loan
Statement dated 18-11-2024, is annexed herewith and marked as Annexure – “P-5”
10. That
the Petitioner states that the statement of Saving Bank Account bearing no.
0145101053228, shows that on 02/04/2024, installment Payment has been debited
as a sum of Rs. 1,42,738.91, towards Hosing Loan Account Number 160001872780,
in an established act of unfair trade practices of the concerned respondent
bank.
Photostat copy the statement of Saving
Bank Account bearing no. 0145101053228, is annexed herewith and marked as Annexure
– “P-6”.
11. That
the Petitioner states that the bank statement dated 18-11-2024, in respect of
Home Loan Secure, purportedly given on 30-09-2023 and thereafter the several
amount has been realized and lastly on 28/06/2024, interest charges as of Rs.
983/- therein. The said Home Loan Secure has never been applied by the
Petitioner. No sanctioned Letter has ever been obtained by the Petitioner from
the concerned respondent bank. The Petitioner have no iota or knowledge about
the said Home Loan Secure, though the concerned respondent bank has shown and
mischievously taken the petitioner’s money towards the repayment of the said
fictitious Home Loan Secure.
Photostat copy of the said bank
statement dated 18-11-2024, in respect of Home Loan Secure, is annexed herewith
and markd as Annexure – “P-7”.
12. 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.
13. That
the Petitioner states that the Petitioner is well entitled to get his Original
Registered Deed of Agreement for Sale dated 21/10/2021, from the concerned
bank, more particularly while no money has ever been enjoyed by the Petitioner
on account of Housing Loan Account No. 160001872780 and the
Home Loan Secure being No. 164003832543,
and the concerned respondent bank has no authority to keep such original Deed
of Agreement for sale, while no disbursal of the said purported loan has ever
been took place, favouring the Petitioner.
14. The
petitioner being aggrieved and dissatisfied with the refusal to return the
Original Deed of Sale Agreement dated 21-10-2021, begs to move the instant
application under Article 226 of the Constitution of India on the following
amongst other:-
GROUNDS
I.
FOR THAT the Original
Deed of Sale Agreement dated 21-10-2021, is not intended to be a Secured Assets
in terms of the SARFAESI Act, 2022, in the said Housing Loan Account No. 160001872780
and the Home Loan Secure being No. 164003832543,
while those loan has never been given to the Petitioner by the Concerned
Respondent Bank;
II.
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;
III.
FOR THAT 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;
IV.
FOR THAT while the Petitioner
was advised to submit the original deed of sale agreement dated 21/10/2021,
being the part of the loan approval process initiated by the respondent bank.
In absolute good faith and trust, the Petitioner complied with such request and
submitted the said original deed of sale agreement dated 21/10/2021, though the
concerned respondent bank even after sanctioned the Housing Loan did not
disburse any money to the Petitioner. Therefore the Petitioner made a request
for return of the said Original deed of sale agreement dated 21/10/2021, by
letter dated 07/10/2024, which the respondent bank is in receipt, though did
not return the original deed of sale agreement dated 21/10/2021;
V.
FOR THAT the concerned respondent
bank had sanctioned the said Housing Loan, obtained the Original registered
agreement for sale dated 21/10/2021, but did not disburse any loan amount to
the Petitioner. Very surprisingly, the concerned respondent bank has taken EMIs
even after the alleged purported date of NPA, from the Saving Bank Account of
the Petitioner lying with the respondent bank;
VI.
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.
VII.
FOR THAT the Petitioner is well entitled to get
his Original Registered Deed of Agreement for Sale dated 21/10/2021, from the
concerned bank, more particularly while no money has ever been enjoyed by the
Petitioner on account of Housing Loan Account No. 160001872780
and the Home Loan Secure being No. 164003832543,
and the concerned respondent bank has no authority to keep such original Deed
of Agreement for sale, while no disbursal of the said purported loan has ever
been took place, favouring the Petitioner;
15. That
the petitioner states that the records of the instant case are lying outside
the ordinary original jurisdiction of the Hon’ble Court.
16. That
the petitioner humbly submits that there is no other remedy available to it and
the prayers as made herein, if allow shall redress the petitioner’s grievances
effectively.
17. That
the petitioner states that due to paucity of time some facts may not have been
incorporated and your petitioner craves leave to file supplementary affidavit
and your petitioner further crave leave to produce and refer to relevant
papers/ documents at the time of hearing by way of filling a supplementary
affidavit.
18. That
this application is made bona fide and in the interest of justice.
In the
circumstances the petitioner most humbly prays before the Hon’ble Court that
Your lordship would graciously be pleased to pass the following orders:-
a)
A writ in the nature of mandamus directing the
concerned respondent authorities to return the 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, to the Petitioner;
b)
A writ in the nature of mandamus directing the
respondent authorities their men, agents and subordinates immediately not to
create any interest in respect of the property under the 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;
c)
A writ in the nature of mandamus directing the
respondent authorities their men, agents and subordinates, to pay appropriate
compensation to the Petitioner;
d)
A writ in the nature of certiorari directing the
respondent to produce all relevant records before the Hon’ble Court for proper
adjudication;
e)
Rule NISI in terms of prayers (a) to (c) above.
f)
An ad-interim order to stop any recourse in
pursuing the said the 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, till the disposal of the instant writ
application.
g)
An appropriate order directing the respondent
authorities to file a report in this regard before the Hon’ble Court.
h)
Such other or further order or orders as your
Lordships may deem fit and proper.
And the petitioner as in duty bound shall ever
pray.
AFFIDAVIT
I, Jayanta
Chowdhury, proprietor of M/s. Global Aqua, Son of Late Ajay Chowdhury, aged
about 56 years, by faith Hindu, by Occupation Business, having his office and
residence at Premises being no. 44/1A, Shyamnagar Road, Police Station – Dum
Dum, Kolkata – 700055, District North 24 Parganas, Mobile No. 9836368295, Email
: globalaquakol@gmail.com, do
hereby solemnly affirm and say as follows:
1. That I am the petitioner of this
application and I am well acquainted with the facts and circumstances of the
case.
2. That the
statements made in paragraph No. 1, 2, 3, 4, 5, 6, 7, & 8, are true to my
knowledge and those made in paragraphs 9,
10, & 11, are true to my information derived from the records of the case
and rest paragraphs are my respectful submission before this Hon’ble Court.
Prepared in my office The deponent is
known to me
Advocate Clerk to: Mr. Sanjib Bandyopadhyay Advocate
Solemnly affirmed before me
on this the day of _______, 2024.
I certify that all annexures
are legible.
Advocate.
COMMISSIONER
DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Jayanta
Chowdhury,
………..Petitioner
-Versus-
Canara
Bank & Others,
……Respondents
WRIT PETITION
MR.
ASHOK KUMAR SINGH
Advocate
Enrollment
No. : F/872/2000
Bar
Association, Room No.15,
High
Court, Calcutta.
(M)
9883070666.
Email
: aksinghadvocate@rediffmail.com
DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
Subject
matter relating to-
Under
Group IX, Head , of the Classification List;
Cause
title
Jayanta
Chowdhury,
………..Petitioner
-Versus-
Canara
Bank & Others,
……Respondents
Advocate-on-Record
MR. ASHOK KUMAR SINGH.
Advocate
Enrollment No.: F/872/2000,
Bar Association Room No.15,
High Court, Calcutta.
Mobile Number : 9883070666,
Email :
aksinghadvocate@rediffmail.com
DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Jayanta
Chowdhury,
………..Petitioner
-Versus-
Canara
Bank & Others,
……Respondents
Index
|
Sl. No. |
Description of Documents |
Annexure |
Pages |
|
1 |
Writ Petition; |
- |
|
|
2 |
Photostat Copy of the Sanction
Memorandum of Housing Loan dated 27-09-2023, and the Deed of Agreement for
Sale dated 21/10/2021; |
“P-1” |
|
|
3 |
Photostat Copy of the Demand Notice
under Section 13(2) of the SARFAESI Act, 2002; |
“P-2” |
|
|
4 |
Photostat copy of
the Letter dated 07/10/2024; |
“P-3” |
|
|
5 |
Photostat copies of the Letter dated
26th day of October’ 2024, with postal receipt and the track
report; |
“P-4” |
|
|
6 |
Photostat copy of the Housing Loan
Statement dated 18-11-2024; |
“P-5” |
|
|
7 |
Photostat copy the statement of
Saving Bank Account bearing no. 0145101053228; |
“P-6” |
|
|
8 |
Photostat copy of the said bank
statement dated 18-11-2024, in respect of Home Loan Secure; |
“P-7” |
|
DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In the matter of:
Jayanta Chowdhury,
………..Petitioner
-Versus-
Canara Bank & Others,
……Respondents
SYNOPSIS
While the Original
Deed of Sale Agreement dated 21-10-2021, is not intended to be a Secured Assets
in terms of the SARFAESI Act, 2022, in the said Housing Loan Account No. 160001872780
and the Home Loan Secure being No. 164003832543.
Since those loan has never been given to the Petitioner by the Concerned
Respondent Bank. The Original Deed of Sale Agreement dated
21-10-2021, should be returned to the Petitioner by the concerned respondent
Bank.
LIST OF DATES
27-09-2023 Housing Loan Account No. 160001872780, Sanctioned, but did
not disbursed any money;
30-09-2023 Housing Loan Secure Account No. 164003832543, shown as
sanctioned but no sanctioned Letter has ever been given;
28-03-2024 Alleged Demand Notice under Section 13(2) of the SARFAESI
Act’ 2002;
02-04-2024 Installment Payment has been debited as a sum of Rs.
1,42,738.91, towards Hosing Loan Account Number 160001872780;
28-06-2024 Interest charges as of Rs. 983/-towards Housing
Loan Secure Account No. 164003832543;
07-10-2024 Letter by the Petitioner asking for the return of the
Original Deed of Sale Agreement dated 21-10-2021;
26-10-2024 Letter of the Learned Advocate for the Petitioner asking
for the return of the Original Deed of Sale Agreement dated 21-10-2021;
DISTRICT : North 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A.
No. of 2024;
In
the matter of:
An
application under Article 226 of the Constitution of India;
And
In
the matter of:
Jayanta
Chowdhury
………..Petitioner
-Versus-
Canara
Bank & Ors.
……Respondents
LIST OF DATES
27-09-2023 Housing Loan Account No. 160001872780, Sanctioned, but did
not disbursed any money;
30-09-2023 Housing Loan Secure Account No. 164003832543, shown as
sanctioned but no sanctioned Letter has ever been given;
28-03-2024 Alleged Demand Notice under Section 13(2) of the SARFAESI
Act’ 2002;
02-04-2024 Installment Payment has been debited as a sum of Rs.
1,42,738.91, towards Hosing Loan Account Number 160001872780;
28-06-2024 Interest charges as of Rs. 983/-towards Housing
Loan Secure Account No. 164003832543;
07-10-2024 Letter by the Petitioner asking for the return of the
Original Deed of Sale Agreement dated 21-10-2021;
26-10-2024 Letter of the Learned Advocate for the Petitioner asking
for the return of the Original Deed of Sale Agreement dated 21-10-2021;
POINTS
OF LAW
Whether
the concerned
respondent Bank can retain the Original Deed of Sale Agreement dated
21-10-2021, which is not intended to be a Secured Assets in terms of the
SARFAESI Act, 2022, in the Housing Loan Account No. 160001872780
and the Home Loan Secure being No. 164003832543
?
Very useful
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