Before the Hon’ble District Magistrate, Barasat, North
24 Parganas
SARFAESI
Application No. ________ of 2024
In
the matter of;
Canara
Bank,
______Secured
Creditor
-
Versus –
M/s. Global Aqua & Anr.,
_________Borrower
Written Objection to the application under Section 14
of the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act’ 2002, on behalf of
the Borrower / Guarantor / Mortgagor;
The humble petition of the above named Borrower /
Guarantor / Mortgagor, most respectfully;
Sheweth as
under;
1.
That M/s. Global Aqua is shown as the
Borrower, in presenting the application under Section 14 of the SARFAESI Act,
2002, and Jayanta Chowdhury, is shown as the Mortgagor in the said application.
M/s. Global Aqua is a Proprietorship Firm, and Jayanta Chowdhury is a
Proprietor of the said firm namely m/S. Global Aqua. M/s. Global Aqua is not a
juristic person as the same has no separate identification under the Law. In
view of the fact that M/s. Global Aqua is not a juristic person no case or
proceeding can be instituted against the non existence person under the law.
Jayanta Chowdhury is a Mortgagor of the immovable properties, who give the
Title Deeds of his properties towards the collateral securities of the
financial facilities with the Canara Bank. The immovable properties lies under
the jurisdiction of this Learned Court are of Agricultural Land on the day of
subjected creation of the said immovable properties with Central Security as
Secured Assets.
2.
That the Borrower is not in receipt of any
notice about the present proceeding pending before the Learned Court. The
Borrower came into knowledge from the reliable sources at the time of hearing
of the SA application being no. SA/627/2024, before the Hon’ble Debts Recovery
Trbunal Kolkata – III.
3.
That on various headings namely Term
Loan, GECL 1.0, PCRS Product, etc., the Secured Creditor bank has disbursed
loan in favour of the borrower, being Proprietorship Firm under proprietorship
of Jayanta Chowdhury. To avail such loan as collateral securities his
properties are mortgaged with the Secured Creditor bank.
4.
That because of the pandemic and
subsequent recession for some period of time monthly installment payable to the
Secured Creditor bank could not be paid on time as a result on 22-03-2024, the Secured
Creditor bank declared assets of the borrower as NPA. Consequently by a notice
under Section 13(2) of the SARFAESI Act, 2002, was issued. It is surprising
enough to find the transaction details in respect of the serial no. 3, & 4,
wherein a fictitious amount of Rs. 60 Lakhs, & Rs. 2,68,969/-, allegedly
has been credited in the loan account. But the said amount was never disbursed
in favour of the borrower, meaning thereby the borrower have never enjoyed the
said amount.
Photostat
copy of the said Demand Notice under Section 13(2) of the SARFAESI Act, 2002,
is annexed herewith and marked as Annexure
– “A”
5.
That from the records it appears that
the Secured Creditor bank has deducted amount towards the said amount of Rs. 60
Lakhs & Rs. 2,68,969/-, which in fact has never been disbursed and enjoyed
by the borrower. Therefore the Secured Creditor bank has deducted such money
illegally towards monthly installments, which they cannot.
6.
That the purported notice under Section
13(2) of the SARFAESI Act, 2002, is appearing in ANNEXURE -2, having Reference
No. GLOBAL AQUA:CR:28032024, dated 28/03/2023, served on the Mortgagor Jayanta
Chowdhury, only by the Secured Creditor bank. The Borrower, is not in receipt
of any notice under Section 13(2) of the SARFAESI Act, 2002. Very surprisingly,
the said notice has been given prior to the future classification of the Loan
Account as NPA, which specifically violated the guidelines in issuing and
categorization of the loan account as NPA so far by the Reserve Bank of India.
The demand notice under Section 13(2) of the SARFAESI Act, 2002, issued without
the loan account as NPA categorized as on the date of the said notice is a
defective notice and bad in law.
7.
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 Secured Creditor 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.
8.
The Housing Loan has never been
disbursed even after sanctioned by the Secured Creditor Bank. No money on account
of Housing Loan No. 160001872780, has
ever been given to the Borrower or to the Developer 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., which has been obtained by the Secured
Creditor bank and created equitable mortgage. Surprisingly, the Secured
Creditor bank had taken the EMIs, deducting the amount on their own without any
consent or intimation. While the Borrower coming in 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 Secured Creditor Bank. The Borrower is not
liable to pay any money on account of non-disbursement of Housing Loan. The
Borrower entitled to get his money back with appropriate banking rate of
interest thereon which has been deducted and or taken by the Secured Creditor
Bank as alleged illegal EMIs of the said Housing Loan.
9.
That while the borrower 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 Secured Creditor bank. In absolute
good faith and trust, the borrower complied with such request and submitted the
said original deed of sale agreement dated 21/10/2021, though the Secured
Creditor bank even after sanctioned the Housing Loan did not disburse any money
to the borrower. Therefore the borrower 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 secured creditor 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 – “B”.
10.
Therefore, again the borrower 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 secured creditor 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 – “C”
Collectively.
11.
The Secured Creditor 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
borrower, ever. Very surprisingly, the secured creditor bank has taken EMIs
even after the alleged purported date of NPA, from the borrower’s Saving Bank
Account lying with the secured creditor bank.
Photostat copy of the sanctioned letter
of the Housing Loan, is annexed herewith and marked as Annexure – “D”.
12.
That the borrower have no iota or
knowledge about the Loan Account shown as Home Loan Secure bearing no. 164003832543, as the borrower 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 borrower 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 secured
creditor bank has done such wrongful recourses against the borrower to ruined
his business, by way of entering the wrongful as well as non-existence loan
accounts and fictitious transactions to demolish the borrower’s business.
13.
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. The said demand notice stated that the
Loan accounts 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 Secured Creditor Bank had sanctioned various renewals even in 2024. In the
case in hand the Secured Creditor Bank by a Letter being Reference No.
ROKOL/MSMESULABH/SANC/206A/2023-24, dated 29-02-2024, Permitted 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 borrower. Therefore, the amount demanded in the said Demand
Notice is also bad in law and a clear indication of malpractice by the Secured
Creditor 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 Secured Creditor Bank had been wary
about the non-disbursal of the housing loan, yet they did not take any
corrective measure.
14.
That the borrower 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 Secured Creditor Bank, without
obtaining the consent and knowledge of the borrower. If the Secured Creditor
Bank had been fair in its practice and realized the amount towards GECL Loan
the account the borrower would not have been consider for NPA, any more. Very
surprisingly, the Secured Creditor 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 loan of the borrower were sanctioned on 29-02-2024. Such
unfair trade practices by the secured creditor bank can be construed as mala
fide and corrupt which has resulted in undue hardship.
15.
That the borrower had sent an e-mail
dated 22-03-2024 thereby informing the secured creditor 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 Secured Creditor Bank towards
the payment of the aforementioned payments. Furthermore, the borrower had
stated the financial condition will change in the month of April’ 2024, wherein
the borrower will be able to make the payments.
16.
That the Secured Creditor Bank replied
to its e-mail dated 22-03-2024 stating inter alia that the Fixed Deposits lying
with the Secured Creditor Bank are parts of Security for the Loan availed by the
borrower and further stated that the borrower required to clear the overdue
otherwise his account would be classified as a Non-Performing Asset (NPA) on
that day.
Photostat copies of the Email
communications between the Petitioner and the Secured Creditor Bank are annexed
herewith and marked as Annexure – “E”
Collectively.
17.
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. 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, illegally.
18.
That the said notice under Section
13(2) of the SARFAESI Act, 2002, is therefore a fictitious notice on the
account of shame transaction bearing no existence in reality. Such, deception
and fraud on the part of the secured creditor bank is shocking in one hand and
has made the entire proceeding initiated against the borrower void and illegal.
19.
The Secured Creditor bank has advanced
following other procedures prescribed in the Act, 2002, which have been
challenged in other interlocutory application connected to the SA application
being SA/627/2024. As such the secured creditor bank since has proceeded with
an illegal notice under Section 13(2)
of the SARFAESI Act, 2002. In furtherance to their malafide intention SA/627/2024,
must be allowed by setting aside the notice under Section 13(2) of the SARFAESI
Act, 2002, and further the secured creditor bank must be stopped from taking
any coercive measures giving effect to the said notice under Section 13(2) of
the SARFAESI Act, 2002.
20.
That the Learned Advocate for the Secured
Creditor 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 taken 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
– “F” Collectively.
21.
Pursuant
to the Demand Notice dated 7th day of October’ 2024 and subsequent
Corrigendum dated 19th day of October’ 2024, the borrower would
place to remind the presence of the Learned Advocate for the secured creditor
bank on 25th day of September’ 2024 before the Hon’ble Debt Recovery
Tribunal Kolkata 3 in SA/627/2024, when he appeared for the Secured Creditor
Bank i.e. Canara Bank, wherein the recall for notice dated 28/03/2023, has been
challenged against the Loan Account Number 0145766000027 & Others. It is
surprising that even after his participation in the said case being
SA/627/2024, before the Hon’ble Debt Recovery Tribunal Kolkata 3, he has once
again agitated the same issues of unpaid Loan in respect of the alleged Loan
Account Number 0145766000027 & Others. As such, the said Notice dated 7th
day of October’ 2024 and subsequent your Corrigendum dated 19th day
of October’ 2024, amount to a Statutory Notice under Section 13 (2) of The
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (54 of 2002). But the Creditor under the Law is
required to send notice which is misleading in the present incident. By sending
said notice dated 7th day of October’ 2024 and subsequent
Corrigendum dated 19th day of October’ 2024, the Learned Advocate
for the Secured Creditor bank have tried to reopen a fresh case against same Loan
Account Number 0145766000027 & Others.
22.
That
the borrower sent a reply on notice
dated 7th day of October’ 2024 and subsequent Corrigendum dated 19th
day of October’ 2024, through his Learned advocate stating inter alia such as
his action is not trust worthy specially when he submitted before the Hon’ble
Debt Recovery Tribunal Kolkata 3, on 25th day of September’ 2024, in
SA/627/2024, that the earlier notice dated 28/03/2023 as annexed in the
application being SA/627/2024 is not correct and the Hon’ble Tribunal has been
pleased to believe the document presented by him in respect of the date of
notice, which according to both the Hon’ble Tribunal and him should be
28/03/2024. But inspite of request, the Learned Advocate for the Secured
Creditor bank have not given any copy of the said notice dated 28/03/2024, as
mentioned in the said Order dated 25th day of September’ 2024.
Photostat
copy of the reply is annexed herewith and marked as Annexure – “G”.
23.
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 secured creditor bank.
Photostat copy the statement of Saving
Bank Account bearing no. 0145101053228, is annexed herewith and marked as Annexure – “H”.
24.
That the present application has been
placed under the violation of Section 13(9) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002, by the Secured Creditor Bank against the Borrower.
25.
That the Borrower reserve his rights to
put specific comments on the application under Section 14 of the SARFAESI Act,
2002, as well as the Affidavit furnished by the Secured Creditor Bank and the
Documents relied on by the Secured Creditor Bank, while the same will be
obtained by way of taking Certified Copies by the borrower, by way of giving
his additional Written Objection in the present proceeding under Section 14 of
the SARFAESI Act, 2002, before the Learned Court, in the interest of
administration of fair adjudication.
26.
That in the circumstances of the facts,
as stated herein above by the borrower, the present application under Section
14 of the Securitization and Reconstruction of Financial Assets and Enforcement
of Security Interest Act’ 2002, should not succeed, in prevailing the
prescribed provisions of the Law.
27.
That this application is made bonafide
and in the interest of administration of Justice.
It is therefore prayed that your Honour
would graciously be pleased to allow the Written Objection of the Borrower and
to dismissed the application under Section 14 of the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act’ 2002, submitted
by the Secured Creditor Bank in limnie,
in the interest of administration of Justice, and /or to pass such other
necessary order or orders as your Honour may deem, fit, and proper for the end
of Justice.
And for this act of kindness, 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 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 named deponent do hereby
solemnly affirm and says as under :-
1.
That I am the borrower, and thoroughly
conversant with the facts and circumstances of the present case and am
competent to swear this affidavit.
2.
That the statements made in the
paragraph no. 1 to 24 are true to my knowledge and belief and the rests are my
humble submissions before the Learned Court.
That the statements
are true to my knowledge and beliefs.
DEPONENT
Identified by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : 26th day of December’
2024.
Place : Kolkata.
N O T A R Y
Before
the Hon’ble District Magistrate, Barasat, North 24 Parganas
SARFAESI Application
No. __________ of 2024
In the matter of ;
CANARA BANK & ANR.
----- ---- SECURED
CREDITORS
– VERSUS –
GLOBAL AQUA & ANR.
--- ---- BORROWER
WRITTEB OBJECTION OF
THE BORROWER;
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
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