IN
THE DEBTS RECOVERY TRIBUNAL II, KOLKATA
JEEVAN SUDHA BUILDING (7th FLOOR)
42C, J.L. NEHRU ROAD
KOLKATA – 700 071
IA
No. _____________of 2025
(Diary
No. _____________of 2025)
Arising
out of
SARFAESI
APPLICATION NO. ________ OF 2025
(Diary
No._______________Of 2025)
In the matter of ;
PRASANTA BISWAS, Son
of Dhirendranath Biswas, aged about ______years, residing at residing at Village
– Taldi, Police Station – Canning, District – South 24 Parganas, Pin – 743376,
West Bengal, Mobile No. __________________, Email : ____________________________
---
---- APPLICANT
–
VERSUS –
(1) CANARA BANK Kharagpur
Branch, IFSC Code : CNRB0000190,
Branch Code : 190, Near Hanuman Mandir, Fatak Bazaar, Kharida, Kharagpur,
Paschim Medinipur, PIN – 721301, West Bengal. Phone no. 8334999207, Email : cb0190@canarabank.com
(2) The
Authorized Officer, Chief Manager, Kharagpur, DP Code -0190, Canara Bank,
Kharagpur Branch, IFSC Code : CNRB0000190, Branch Code : 190, Near Hanuman
Mandir, Fatak Bazaar, Kharida, Kharagpur, Paschim Medinipur, PIN – 721301, West
Bengal. Phone no. 8334999207,
Email : cb0190@canarabank.com
-----
---- RESPONDENTS
APPLICATION
TO STAY ON THE POSSESSION NOTICE DATED 21-01-2025
The humble petition of the above named applicants,
most respectfully;
Sheweth as under;
1. That
the above referred application has been placed in 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 under
Section 13(4) of the Securitisation & Reconstruction of Financial Assets
& Enforcement of Security Interest Act, 2002, dated 21/01/2025, and the
Demand Notice under Section 13(2) of the Securitisation & Reconstruction of
Financial Assets & Enforcement of Security Interest Act, 2002, dated
11/09/2024, and the subsequent recourses of the respondent bank.
2. That
the concerned Respondent being the Authorized Officer of the Canara Bank,
visited the premises of the Applicant on 21st day of January’ 2025,
and pasted a Possession Notice under Section 13(4) of the Securitisation &
Reconstruction of Financial Assets & Enforcement of Security Interest Act,
2002, dated 21/01/2025, calling upon the applicant (borrower) to repay the
amount mentioned in the Demand Notice dated 11/09/2024, being Rs. 16,90,160.13
(Rupees Sixteen lakhs Ninety Thousand One hundred sixty and paise thirteen)
only.
Photostat copy of the said Possession
Notice under Section 13(4) of the Securitisation & Reconstruction of
Financial Assets & Enforcement of Security Interest Act, 2002, dated
21/01/2025,
is annexed herewith and marked as Annexure
– “A”.
3.
That the applicant has received
the Demand Notice dated 11/09/2024, under Section 13 (2) of the SARFAESI Act
2002, only on 13/09/2024, by Post given by the concerned respondent herein. The
said Demand Notice under Section 13(2) of SARFAESI Act 2002, was not in terms
of the prescribed provisions of the SARFAESI Act 2002, therefore the applicant
given his representation dated 26th day of September’ 2024, under
Section 13(3A) of SARFAESI Act 2002 to the respondent bank, by Speed Post,
which the respondent bank was in receipt of the same. The representation of the
applicant raised about the anomalies surfaced in the said Demand Notice dated
11/09/2024, given by the respondent bank, which are as (a) did not disclose the
correct date with appropriate annexure of bank statements, on which the
applicant has ever been classified as NON PERFORMING ASSETS, in terms of the guidelines issued by the
Reserve Bank of India, (b) the said demand notice is also lacks “transparency”
as it fails to divulge the details of the amount payable by the borrower, (c)
the respondent bank did not communicate to the applicant on classification of
NPA, (d) the respondent bank did not place its demand of overdue money on any
occasion to the applicant, (e) the respondent bank failed to give the details
as to how and when the applicant’s account has ever been classified as NPA, (f)
the rate of interest in the said financial facility has not ever been disclosed
by the respondent bank nor at the occasion of placing such Demand Notice dated
11/09/2024, under Section 13(2) of the SARFAESI Act 2002, (g) The Schedule –B
showing the immovable property does not contained the butted and bounded being
the boundaries of the property and did not give any premises number, so far,
which has ever been allotted by the Civic Body i.e. Kharagpur Municipality, (h)
The Schedule –C showing the liability with interest as on 11-09-2024, without
any details or description of calculation of all money adjusted being paid by
the applicant. Therefore the said Demand Notice under Section 13(2) of the
SARFAESI Act 2002 dated 11/09/2024, is not in consonance of the prescribed
provisions of Law as the same has been failed to take fair and transparent
aspects of the particulars mentioned therein.
Photostat copy of the said Demand Notice dated
11/09/2024, under Section 13 (2) of the SARFAESI Act 2002, and the representation dated
26th day of September’ 2024, under Section 13(3A) of SARFAESI Act
2002, are annexed
herewith and marked as Annexure – “B”
Collectively.
4. That
the applicant by his representation dated 26-09-2024, under Section 13(3A) of
the SARFAESI Act 2002, asked for the (a) detail description of the calculation
of the DUES as on 11th day of September’ 2024 - amount, as stated in
the notice under reference. (b) The rate of interest charged by you on the
credit facilities / Loan against residential property/ Housing Loan, provided
to my client, (c) The statements of Account of the Credit facilities / Loan
against residential property / Housing Loan, (d) The Agreement Copy of the
Credit facilities / Loan against residential property / Housing Loan, (e) The
schedule and structure of the re-payment of E.M.I. of the Credit facilities /
Loan against residential property / Housing Loan, (f) The statements of processing
fees, margin money, rate of interest, service tax, administrative charge,
delayed payment charge, incidental charges, Cheque bouncing charges, late
payment charges, Day books, (g) The statements of cash and all other copies of
books used in the ordinary business of the finance company, or bank, and (h)
The letter of the reschedule of the credit facilities / Loan against
residential property / Housing Loan to my client.
5. That the respondent bank replied the representation
dated 26-09-2024, by way of letter dated 03-10-2024, wherein the respondent
bank denied the contentions of the applicant and stated as the classification
of the applicant’s account has been occurred on 03/12/2022, as NPA, and the
respondent bank has sanctioned Housing Loan amounting to Rs. 14 Lakhs, details
of which are mentioned in the demand notice under Section 13(2) under the head
Schedule –A; The Respondent Bank even not in correct knowledge as to what money
has ever been sanctioned and given to the applicant and what particular money
has ever been due and payable by the applicant to the respondent bank. The
respondent bank did not give any bank statements of the said financial facility
to the applicant showing the demanded amount is ever payable by the applicant
to the respondent bank. The respondent bank is not on its clear vision in
asking any money from the applicant. The books of accounts ever maintained by
the respondent bank has never produced or given to the applicant showing such
demanded money. The respondent bank contended further that any communication
made by the borrower prior to issuance of demand notice shall not be accepted
as objection under the representation dated 26-09-2024, given by the borrower.
The mandatory aspects of the said demand notice under Section 13(2) and the
reply of the representation by the respondent bank dated 03/10/2024, are
contradictory on bare perusal and clearly visible as to its non maintainability
and the same can be safely said to be bad in law.
Photostat copy of the Reply under Reference :
KGPR:ADV:SARFAESI:0190619006122:REPLY:2024001, dated 03/10/2024, is annexed
herewith and marked as Annexure – “C”.
6. That
the applicant has obtained financial facility as Housing Loan account assigned
as Housing Loan Account Number 0190619006122, sanctioned on 04-01-2020, for a
sum of Rs. 14,00,000/- (Rupees Fourteen Lakhs) only, towards purchasing Flat
no. 103, measuring more or less 863 Sq. ft. Super Built up area Block –F, 1st
Floor, of a multistoried building constructed on Land comprised in R.S. Khatian
No. 205, R.S. Plot No. 235, admeasuring about 159 Decimal recorded in L.R.
Khatian No. 710, L.R. Dag No. 235, appertaining to J.L. No. 308, C.S. Khatian
No. 107, C.S. Plot No. 235, Touzi No. 1260, Revenue Survey No. 3127, under
Mouza Madan Mohan, classified as Bastu within the limits of Kharagpur
Municipality, District Paschim Medinipur. Thereafter in the Second week of the
March’ 2020, the unprecedented COVID-19 pandemic has been spread over the
entire universe including our Country. The Government of India lunched the
Locked Down in the Country for the first for period of three months and
consequently further for the period of three months and thereafter such locked
down has been started towards normalizing and restoration in a very restricted
manner in terms of the several guidelines issued by the Government of India.
During such period Moratorium period has been announced by the RBI in pretext
of repayment of the financial facilities of the borrower. Housing Loan is not a
financial facility which has ever been obtained by the applicant for any
commercial activities or gain thereon as the same has been used for residential
purposes only. The applicant has also affected with much financial crisis due
to spread of COVID-19 pandemic. However the applicant made repayment to the
respondent bank which has not ever been adjusted or shown in any communication
made ever by the respondent bank including the purported Demand Notice under
Section 13(2) of the SARFAESI Act 2002, as well as in the Possession Notice
under Section 13(4) of the SARFAESI Act 2002, including the Reply dated
03-10-2024.
7. That
the Possession Notice under Section 13(4) of the SARFAESI Act 2002, dated
21-01-2025, is not in terms of the provisions emphasized in Rule 8(1) &
8(2) of the SARFAESI Rules, 2002, and
its lost fairness and transparency in issuing by the respondent bank by
way of pasting it at the applicant’s premises. The Rule 9 of the SARFAESI
Rules, 2002, has not been adhered by the respondent bank while issuing the said
possession notice dated 21-01-2025. The Boundaries and the landmark being
nearby and more particularly the apartment and the premises number has not ever
been given by the respondent bank in its Possession Notice dated 21-01-2025.
8.
That the applicant states and submit that the Possession Notice under
Section 13(4) of the SARFAESI Act 2002, dated 21-01-2025, has not prescribed
the details and particulars in terms of Rule 8(1) & 8(2)
of the SARFAESI Rules, 2002, issued by the respondent bank, therefore the same
is bad in law and liable to be quashed inlimnie.
9.
That the applicant states and submit that the reply dated 03/10/2024,
given by the respondent bank has been given with substantial wrong information
and denied to give clarification on the representation made by the application
in respect of (a) did not disclose the correct date with
appropriate annexure of bank statements, on which the applicant has ever been
classified as NON PERFORMING ASSETS, in
terms of the guidelines issued by the Reserve Bank of India, (b) the said
demand notice is also lacks “transparency” as it fails to divulge the details
of the amount payable by the borrower, (c) the respondent bank did not
communicate to the applicant on classification of NPA, (d) the respondent bank
did not place its demand of overdue money on any occasion to the applicant, (e)
the respondent bank failed to give the details as to how and when the
applicant’s account has ever been classified as NPA, (f) the rate of interest
in the said financial facility has not ever been disclosed by the respondent
bank nor at the occasion of placing such Demand Notice dated 11/09/2024, under
Section 13(2) of the SARFAESI Act 2002, (g) The Schedule –B showing the
immovable property does not contained the butted and bounded being the
boundaries of the property and did not give any premises number, so far, which
has ever been allotted by the Civic Body i.e. Kharagpur Municipality, (h) The
Schedule –C showing the liability with interest as on 11-09-2024, without any
details or description of calculation of all money adjusted being paid by the
applicant. Therefore the said reply dated 03-10-2024, is not sustainable and
bad in law, thus liable to be quashed inlimnie.
10.
That the applicant states and submit that the said
Demand Notice under Section 13(2) of SARFAESI Act 2002, dated 11/09/2024, was
not in terms of the prescribed provisions of the SARFAESI Act 2002, which did
not give the details of the unpaid loan amount and interest accumulated
thereon. The details description of the immovable property has been denied
therein. Therefore the said notice Demand notice dated 11/09/2024, is not
sustainable and bad in law, thus liable to be quashed inlimnie.
11.
That the applicant states and submit that the entire recourses under
Section 13 of the SARFAESI Act 2002, has been persuaded by the respondent bank
with oblique motive against the applicant. Therefore such recourses of the
respondent bank under Section 13 of the SARFAESI Act 2002, is not sustainable
and bad in law, and liable to be quashed inlimnie.
12.
That the applicant states and submit that the immovable property cited
in the purported Demand Notice under Section 13(2) of the SARFAESI Act 2002, as
well as in the Possession Notice under section 13(4) of the SARFAESI Act 2002,
dated 21-01-2025, has not ever been registered as a Security interest or
security assets with the Central Registry established in pursuance of the
SARFAESI Act 2002, therefore the immovable property of the applicant cannot be
treated as a secured assets for the purposes of recourses under Section 13 of
the SARFAESI Act 2002.
13.
That the applicant states and submit that the recourses of the
respondent bank against the applicant is without following the prescribed
provisions of Law, therefore such recourses are bad in law taken by the
respondent bank against the applicant.
14.
That the applicant states and
submit that it is settled principles of law that although recovery of public
dues should be made expeditiously, but it should be in accordance with law. The
Court cannot loose sight regarding any illegality or irregularity of the
SARFAESI measures taken by the Secured Creditor.
15.
That the Applicant states and
submit that the applicant seeks quashing the
validity, legality and enforceability, of the Possession
Notice under Section 13(4) of the SARFAESI Act 2002, dated 21-01-2025, as well
as the Demand Notice under Section 13(2) of the SARFAESI Act 2002, dated
11/09/2024, in the interest of administration of Justice.
16.
Under the facts and circumstances
aforesaid the Applicant states and respectfully submit that the purported and
alleged impugned
Possession Notice under
section 13(4) of the SARFAESI Act 2002, dated 21-01-2025, as well as the Demand
Notice dated 11/09/2024, under Section 13(2) of the SARFAESI Act 2002,
and any other recourses consequential thereto deserves to be and should be
quashed and stating the same as bad in law and have no force at all.
Consequently, the concerned respondent also deserves to be and should be
restrained from giving any effect to the said impugned Possession Notice under section 13(4) of the SARFAESI
Act 2002, dated 21-01-2025, as well as the Demand Notice dated 11/09/2024,
under Section 13(2) of the SARFAESI Act 2002,
or
any manner acting in pursuance thereof against the Schedule “A” property of the Applicant.
17.
Unless Orders as prayed for
herein are made the Applicants shall suffer irreparable loss, prejudice and
injury thereof.
18.
That this interim application is
made bona fide and in the interest of administration of Justice.
It
is therefore, most respectfully prayed as follows;
(a) Declaration
that the purported steps and measures taken by the Respondents under the
provisions of the SARFAESI Act, 2002 is bad in law and be quashed;
(b) An
Order be passed quashing the validity, legality and enforceability, and/
or set aside the impugned Possession Notice under section 13(4) of the SARFAESI Act 2002, dated
21-01-2025, as well as the Demand Notice dated 11/09/2024, under Section 13(2)
of the SARFAESI Act 2002, in
the interest of administration of Justice;
(c) An
Order quashing the validity, legality and enforceability, and/
or set aside the impugned Possession Notice under section 13(4) of the SARFAESI Act 2002, dated
21-01-2025, as well as the Demand Notice dated 11/09/2024, under Section 13(2)
of the SARFAESI Act 2002, of
the said self-contained Schedule “A” property of the
Petitioner under the garb of course of law and stating the same as bad in law
and have no force at all.
(d) A
further Order be made restraining 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 Notice under section 13(4) of the SARFAESI Act 2002, dated
21-01-2025, as well as the Demand Notice dated 11/09/2024, under Section 13(2)
of the SARFAESI 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 taking the Schedule
“A” property of the Petitioner.
(e) An
Order by this Learned Tribunal is also necessary restraining the concerned
Respondent, its men, agents, servants, officials and persons claiming under it
from giving effect to or executing the said Possession Notice under section 13(4) of the SARFAESI
Act 2002, dated 21-01-2025, as well as the Demand Notice dated 11/09/2024,
under Section 13(2) of the SARFAESI Act 2002,
in
respect of the immovable properties of the Petitioner or any other notices
consequential thereto.
(f) Such
further or other order/orders be made and/or direction or directions be given,
as the learned Tribunal may deem fit and proper.
And for this act of
kindness, the Petitioner as in duty bound shall ever pray.
SCHEDULE “A” ABOVE
REFERRED TO
Description of immovable
properties
ALL
THAT
piece and parcel of the Flat no. 401, measuring more or less
1347 Sq. ft. Super Built up area Block –D, 4th Floor, of a
multistoried building constructed on Land comprised in R.S. Khatian No. 205,
R.S. Plot No. 235, admeasuring about 159 Decimal recorded in L.R. Khatian No.
710, L.R. Dag No. 235, appertaining to J.L. No. 308, C.S. Khatian No. 107, C.S.
Plot No. 235, Touzi No. 1260, Revenue Survey No. 3127, under Mouza Madan Mohan,
classified as Bastu within the limits of Kharagpur Municipality, District
Paschim Medinipur, West Bengal.
– VERIFICATION –
I, Prasanta Biswas, Son of
Dhirendranath Biswas, being the applicant hereby solemnly verify that the
contents of paragraphs 1 to 11 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 January’ 2025.
Signature
Place
: Kolkata
Dated
: ____the day of January’ 2025;
To,
The
Registrar,
Debts
Recovery Tribunal Kolkata – II.
JEEVAN SUDHA
BUILDING (7th FLOOR)
42C, J.L.
NEHRU ROAD
KOLKATA – 700
071.
AFFIDAVIT
I,
PRASANTA BISWAS, Son of
Dhirendranath Biswas, aged about _____years, by faith Hindu, by Occupation
_______, residing at Village – Taldi, Police Station – Canning, District –
South 24 Parganas, Pin – 743376, West Bengal, 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 statements made in the paragraph number 1 to 7 are true to my
knowledge and belief and the rests are my humble submissions before the Hon’ble
Tribunal.
3
: That the facts contained in 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
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:_____day of January’ 2025.
Place
:Kolkata.
N
O T A R Y
IN THE DEBTS
RECOVERY TRIBUNAL KOLKATA - II
JEEVAN SUDHA BUILDING
(7th FLOOR)
42C, J.L. NEHRU ROAD
KOLKATA – 700 071
SA NO ________
OF 2025
(Diary No.
_________of 2025)
In the matter of ;
PRASANTA BISWAS.
--- ---- APPLICANT
– VERSUS
–
CANARA BANK & ANR.
----- ---- RESPONDENTS
An application
to stay on the Possession Notice dated 21-01-2025.
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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