Brief notes of Argument in Consumer Case against Lord Realty Private Limited

 

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

SOUTH 24 PARGANAS

144, Kulpi Rd, Beharapara, Baruipur, West Bengal 700144

 

Consumer Case no. CC/57/2021

 

In the matter of:

Ashish Kumar Ghosh,

……....Petitioner

 

      -versus-

Exparte proceeding

M/s. Lord Realty PrivateLimited, & Anr.,

           ... Opposite Party

 

 

Brief notes of Argument by the Petitioner

Ashish Kumar Ghosh

 

 

Facts ;

 

1. T hrough Letter dated 3^rd April’ 2012, Respondents had allotted Unit No. C-110 in Zone – 7, measuring 4320 Sq. ft. for Lord City Sonarpur at the rate of Rs. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only per Cottaha. The Total Consideration of the Unit ( excepting the charges for Amenities and excluding Registry ) comes to Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, the said allotment Letter has been issued by the respondents only on receipts of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand ) only, being application money, and whereas the rests amount has been decided into 12 (twelve) installments.

 

2. That the Petitioner had paid the total consideration money in the following terms :

1.   26.03.2012 – Money Receipt number 3251 - Rs. 1,80,000/-

2.   23-05-2012 – Money Receipt number 3739 – Rs. 40,000/-

3.   21-04-2012 – Money Receipt Number 3476 – Rs. 40,000/-

4.   22-06-2012 – Money Receipt Number 3976 – Rs. 40,000/-

5.   21-07-2012 – Money Receipt Number 4233 – Rs. 40,000/-

6.   11-09-2012 – Money Receipt Number 4665 – Rs. 40,000/-

7.   26-09-2012 – Money Receipt Number 4786 – Rs. 40,000/-

8.   09-10-2012 – Money Receipt Number 4925 – Rs. 40,000/-

9.   19-11-2012 – Money Receipt Number 5225 – Rs. 40,000/-

10.        26-12-2012 – Money Receipt Number 5561 – Rs. 40,000/-

11.        06-02-2013 – Money Receipt Number 5958 – Rs. 30,000/-

12.        04-02-2013 – Money Receipt Number 5945 – Rs. 10,000/-

13.        22-03-2013 – Money Receipt Number 6928 – Rs. 40,000/-

14.        06-05-2013 – Money Receipt Number 7334 – Rs. 40,000/-

15.        18-05-2013 – Money Receipt Number 7371 – Rs. 40,000/-

16.        06-03-2013 – Money Receipt Number 6805 – Rs. 40,000/-

17.        24-08-2013 – Money Receipt Number 8117 – Rs. 80,000/-

18.        21.09.2013 – Money Receipt number 8408 - Rs. 40,000/-

19.        And Rs. 40,000/- on the occasion of registration of deed of conveyance, totaling as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only.

 

3. That The Respondents entered into an Agreement for Sale dated 17^th day of October’ 2012, with the Petitioner, wherein Respondents are a Developer as described therein and the Petitioner is a Purchaser / Allottee. The said Agreement for Sale dated 17^th day of October’ 2012, contained the following covenants :

 

a)   At page number 2, paragraph number 1 – The Allottee of each unit who intends to acquire the opwnership shall have the choice either to make single storied or two storied building in and over the unit of land according to building plan to be prepared with such modification or alteration as may be deemed fit and proper by the developer or as advised by the architect or as may be sanctioned by the competent authority and the said allottee agrees to be bound thereby. Such construction of building shall be done only by the developer and the purchaser / allottee shall have no right for such job nor shall modify and or change the nature and character of the building in future. In the event of failure to give marketable title to the purchaser/allottee the developer undertakes to refund any amount that will be paid upon execution of these presents to the purchaser/allottee.

 

b)   At page number 2, paragraph number 2 – The Unit Allottee besides acquiring the right of ownership of the said unit and other rights attached thereto subject to registration of the final deed of conveyance after observation of the aforesaid terms along with other terms and conditions mentioned hereunder shall be entitled to have construction either for single storied or two storied building / bunglow.

 

c)   At page number 2, paragraph number 3 – each unit allottee along with the Developer will be entitled to the following easement rights and similarly be subject to similar easements and rights of the other unit – allottees as also the Developer.

 

i)             Right of access and way in common with the developer and / or other unit-allottees at all time with the use and enjoyment of common areas and facilities to which they are entitled to.

ii)           Easements quasi-easements, appendages and appurtenances belonging to or appurtenant to units as usually held used and occupied or known as part or parcel thereof or appertaining thereto provided always that nothing herein contained shall permit the unit-allottee or any person deriving title under him or his agent and invitee to obstruct in any way be vehicle, deposit or materials, rubbish or other wise free passage of other person or persons including the Developer and other unit-allottees entitled to such was as aforesaid.

iii)          The right of protection of the unit by and from all parts of the building/zone so far as they are normally protected.

iv)          The right of flow in common of electricity, water and waste or soil from and to the unit through pipes, drains, wires, and conduits lying or being in under through or over the4 other parts of the zone or unit as appli9cable, so far as may be reasonably necessary for the beneficial use occupation and enjoyment of each unit.

v)           The right with or without workmen and necessary materials to enter from time to time upon the other unit or any part or parts in the unit of other zones for the purpose of rebuilding, repairing, replacing or cleaning so far as may be necessary when the aforesaid job cannot be reasonably carried out without such entry and materials and in all such cases excepting in emergent situation upon giving forty eight hours previous notice in writing of his intention so to enter to the person affected thereby.

 

d)    At page number 7, paragraph number 16 – Possession –

 

a)   Possession will be offered to the allottee sending notice in writing and possession will be delivered on the date mentioned in the notice. If the possession is not taken on that date it will be deemed to have been delivered on the said date.

b)   Outstanding amount if any shall continue to remain the liability of the allottee.

c)   Rates taxes and maintenance charges of the said unit and appurtenances thereto will be the liability of the allottee from possession date as stated above.

 

e)   At page number 7, paragraph number 17 – Conveyance – within thirty days after the developer offering the allottee to take possession of the unit as aforesaid, the allottee shal take steps for getting the conveyance executed and registered bearing all costs of registration and stamp duty along with other incidental expenses.

 

f)    At page number 8, paragraph as – SCHEDULE OF LAND REFERRED TO ABOVE – ALL THAT piece and parcel of land measuring an area of 6 Cottahas ( 4320 Square feet ) more or less being Unit No. C – 110, within Zone – 7, comprised in Dag No. 80, J.L, no. 108, within Mouza Sangur, Police Station – Sonarpur, District – South 24 Parganas.

 

4. Subsequently, on being payment of total consideration money by the Petitioner, the Respondents executed and registered Deed of Conveyance in respect of ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560, in favour of my Client Shri ASHISH KUMAR GHOSH, Son of Late Nripendra Nath Ghosh, residing at premises being number 20/1, Jugipara Road, Debalay Apartment, Flast C – 1, First Floor, Police Station Dum Dum, Kolkata – 700028, vide Being number 07077 for the year 2014, registered in Book – I, CD Volume number 40, Page from 2409 to 2425, registered in District Sub-registrar-IV, South 24 Parganas, wherein acknowledged the total consideration money as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, in pursuance of Agreement for Sale dated 17-10-2012.

 

5. That the Respondents had given a Letter dated 29^th November’ 2013, wherein it is stated as follows :

 

“ with great pleasure, I would like to inform you that the commencement of Lord City Sonarpur Project, is starting on 29^th November’ 2013.

Commencing on 29^th November’ 2013, independent bunglows along with necessary infrastructure will be constructed in phased manner, starting from phase #1 and will be made available as per the sale agreement.

Please note, construction of Model Bunglows of 2,4, and 6 Cottahas at Lord City Sonarpur are already completed and are open for display.

Relevant details will be intimated to you shortly.”

 

6. That the Respondents had given one Letter dated 12^th November’ 2015, wherein it is stated as follows :

 

“ Please refer to our letter under reference wherein we had intimated to you that the commencement of construction work in our Lord City Sonarpur Project was scheduled to begin therefrom starting from phase -1, and shall be made available within the period and other terms morefully mentioned in the Sale Agreement executed between us followed by the construction payment schedule.

 

We hereby regretfully inform you that, although the construction work in our said project has been commenced, but due to departmental delays and certain inevitable circumstances faced by the company ( like major delay in receiving mutation, conversion and sanction documents from the land  and other concerned government department/s, unavailability of skilled labour for better construction work, etc. ) the completion of the desired phase has not been completed nevertheless the same is expected within 12 months ( excluding force majeure delay, if any ) from the date of our instant communication to you and the construction work is now in a speedy process, your respective unit shall be made available upon completion of the same.”

 

7. That one Minutes of Meeting dated 18-11-2018, has been provided by the Respondents, which contained the followings :

a)   Lord will show us Loan sanction documents on or before 05-12-2018, as agreed by both parties;

b)   17^th December’ 2018, Construction will start and by May’ 2019, 100 units will be ready;

c)   Those who are interested to cancel or sell his / her plot Lord Realty Pvt. Limited will pay them from May’ 2019 with 8 % compound interest annually. Any cancellation will be entertained after May’ 2019;

d)   There will be a high tea party at Lord Realty Pvt. Limited at project site ( Sonarpur ) on 25-12-2018 for all buyers or plot owners;

e)   Buyers will see the loan sanction documents by 5^th December 2018 and also commencement of works on 17-12-2018 at Sonarpur, failing to above two conditions. Lord realty will pay immediately to those who are interested to cancel and they will pay with 8% annual compound interest;

f)    Lord will share loan sanction document after 05-12-2018 by mail and will show the original to buyers, who will come to lord’s office.

 

8. That the Petitioner had communicated to the Respondents on many occasions through email and over phone for the mutation of Land as advised by them, and authorized the respondents for causing necessary endavour for the mutation, though nothing yield till date. It is pertinent to states that on all and every occasions, the respondents promised to perform in terms of the Agreement for Sale though respondents could not made available themselves on different pretext therefore the respondents did not deliver the physical possession of the Land and mutation has not been done in favour of the petitioner, till date. Thus the Petitioner have only possessions of some documents and or papers as provided by the respondents. But the respondents have money of the petitioner as taken by the respondents in promises as given by the respondents in terms of the said Agreement for Sale dated 17-10-2012.

 

9. The acts & Omissions of the respondents as described above,  are well established as deficiency in services and unfair trade practices, as meant for in the Consumer Protection Act’ 2019.

 

10. The Petitioner Seeks due performance of the respondents in terms of the Agreement for Sale dated 17-10-2012, by delivering the physical possession of the property and causing necessary endavour for the mutation with the concern department, thereof. The Petitioner served one Legal Notice dated 1^st day of December’ 2020, on the respondents, through Speed Post. The Respondents are well within the knowledge of the contents of such notices, though did not heed to perform, and even did not answer on such notices of the Petitioner.

 

11. Since substantial period is elapsed, your petitioner is genuinely apprehending much about the performances of the respondents in terms of the agreement for sale dated 17-12-2012, and therefore resort this consumer proceeding before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas.

 

12. The Petitioner’s dream of his own house in the LORD CITY SONARPUR has been shuttered at the instances of willful and deliberate unfair trade practices of the respondents.

 

13. The Petitioner is a victim of the purported acts and deficiency in services at the instances of the respondents and the acts of the respondents as well as the facts are well constitute the deficiency in services on the part of the respondents.

 

14. The Petitioner solely seeks to get delivery of physical possession of the schedule property being ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560, in terms of the Agreement for Sale dated 17^th day of October’ 2012, with all amenities, and conversion, and mutation should perused by the respondents.

 

15. The respondents shall also pay the compensation due to the petitioners for the harassment, troubles, physical inconvenience and mental agony arising directly out of the breach of the agreement and breach of duty on the part of the respondents. The petitioners assesses such loss and damages at Rs. 6,00,000/- ( Rupees Six lakhs ) only.

 

16. That the Petitioner relying on the following documents / Papers :

a)    Letter of Allotment dated 3^rd April 2012;

b)   Schedule for total payment as provided by the respondents;

c)    Letter dated 3^rd April’ 2012, of the Petitioner;

d)   Money Receipts;

e)    Agreement for Sale dated 17^th day of October’ 2012;

f)     Letter dated 29^th November’ 2013;

g)    Deed of Conveyance dated 10^th September’ 2014;

h)   Letter dated 12^th November’ 2015;

i)     Minutes of Meeting dated 18-11-2018;

j)     All communication and authorization for mutation;

k)   Legal Notice dated 1^st day of December’ 2020;

 

17. The Petitioners therefore prayed for :

 

 

a)    To direct the respondents to deliver the physical possession of the schedule property ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560 with all amenities as contended in terms of the Agreement for Sale dated 17-12-2012, to the Petitioner, in the interest of administration of justice;

 

b)   To direct the respondents to cause necessary endavour for conversion and mutation of the name of the Petitioner in respect of the schedule property, with the concern department of the Government, in the interest of administration of justice;

 

c)    And or alternatively, direct the respondents to refund the money being consideration value as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, with appropriate banking interest thereon till realization, thereof to the Petitioner in the interest of administration of justice;

 

d)   To direct the respondents to pay compensation, as for the harassment, troubles, loss of business, physical inconvenience and mental agony, suffered by the petitioners from the purported activities and others by the respondents as assessed as ₹ 6,00,000/- ( Rupees Six Lakhs ) only to your petitioners;

 

e)    To grant the cost of the proceedings ;

 

During the Proceeding ;

 

1)   The notices on admission of the consumer complaint has duly been served though the respondents did not appear in the present Consumer Proceeding;

2)   Consequently, the Notice though paper publication in Bengali daily newspaper “aajkal” has been published, though the respondents did not appear in the present consumer proceeding;

3)   Therefore the present consumer proceeding has been directed ex-parte against the respondents, on satisfaction of services of notice upon the respondents by way of paper publication;

4)   The Evidence on affidavit placed by the Complainant is unchallenged and beyond any reasonable doubts, so far.

 

Submissions ;

 

The Complainant paid the consideration money, to the respondents, resulting which the Deed of Conveyance has been executed by the respondents, in favour of the Complainant, though the physical possession has not been delivered by the respondents, as the projects with all amenities as committed by the respondents has not been established yet. The agreement for sale has not been performed in its content and purport by the respondents. Thus the complainant is entitled to get relief in terms of his prayer.

 

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Representation under Section 13(3A) of SRFAESI Act 2002

 

Registered Post / Speed Post / Courier

 

Ref.: Legal / SD/CB / 1707-3108 / 2023.

Dated : 11^th day of March’ 2023

 

To,

The Authorized Officer,

Regional Office -1, Kolkata 16,

Pradip Kumar Bag

Emp. No. 72346

Canara Bank

Shakuntala Park Branch,

88/N, Biren Roy Road (West),

Kethopole,

Kolkata 700061,

Contact No.: 8334999314

Email : cb1665@canarabank.com

 

                                               

Ref.: Your Letter Ref.: 1565/ DEMANDNOTICE/SUKANTADAS/JAN/2023/1, dated 13.01.2023.

 

My Client : Mr. Sukanta Das, Premises No. 177, Raja Ram Mohan Roy Road, Flat 2A, 2^nd Floor, Ward 121, P.S. Behala, Kolkata – 700008, and also Son of Nityalal Das, 171/4, Rai Bahadur Road, Behala, Kolkata - 700034.

 

 

 

 

 

 

Subject : Loan Account No. 1665619001334 ( Loan Against residential Property ), dated 10/07/2018.

 

REPRESENTATION  UNDER SECTION 13 ( 3 A ) OF SRFAESI ACT’ 2002 TO CANARA BANK’S NOTICE UNDER SECTION 13 ( 2 ) OF SRFAESI ACT’ 2002.

Dear Sir,

 

Under instructions of my above named client, I hereby states that my client is in receipt of your letter dated 13^th day of January’ 2023, which was posted on 17-01-2023, and the same has been received on 27-01-2023, and whereas my clients duly gone through the contents of your said letter, surprisingly find that the said letter has been issued by the Authorised Officer, and thereafter, handed over to me with specific instructions to reply your said letter dated 13^th day of January’ 2023, and to put objection in the following manner :-

 

1.   That from the bare reading of your letter dated 13^th day of January’ 2023, it’s appear that your Demand Notice dated 13^th day of January’ 2023, under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, is not in accordance with the Law, as prevailed for time being in force.

 

2.   That the instant representation is being caused against the aforesaid notice dated 13^th day of January’ 2023, purportedly issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002 ( hereinafter referred to as the “said notice” ). The issuance of the said notice itself is an act without jurisdiction and suffers from some incurable defects which has itself vitiated the procedure laid down under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002 and rules made there under an as a nullity.

 

3.   The notice under reference fails to disclose the correct date with appropriate annexure of bank statements, on which the accounts of the Borrower has been classified as NON PERFORMING ASSETS in terms of the guidelines issued by the Reserve Bank of India. The notice is also lacks “transparency” as it fails to divulge the details of the amount payable by the borrower. These disclosures are mandatory for issuance of notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002 and pursuant to the law laid down by the Hon’ble Apex Court. The defects as aforesaid are incurable and therefore the action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act’ 2002, by issuance of notice under Section 13(2), has become nullity and thus is not enforceable.

 

4.   That my clients have made regular payment towards the repayment of the credit facilities Amount granted by you, as shown in the statement of accounts provided by you. And thereby my client did not breach any covenant of the alleged agreement of Residential Loan, though you have breach the terms and conditions of your said alleged Residential Loan agreement by taking several mode of payments on threat from my client  you did not co-operate my client at any occasions, even you did not consider my client’s request and not even bothered to take into consideration of the situations with my client, whereas any communications between the parties under an agreement or contract, is a part and parcel of such agreement and contract, the binding of duties and obligations should lies reciprocally on both the parties of the such agreement or contract, and which should be genuinely legally valid in accordance with the Law of Land.

 

5.   That you please note that the several communications has been made by my client, whereby my client showing its willingness to repay the loan amount as was determined on the date of sanction of said Loan against residential property, describing financial conditions and other inability for the time being though you did not consider my client’s aspect nor provide any suitable opportunity.

 

6.   That you have stated in your said purported demand notice date 26/12/2019, that my client’s account has been classified as a Non Performing Asset (NPA) in accordance with the directives and guidelines of RBI, though you did not given on which date, month and year my client’s account has been specified as NPA,  nor you did ever communicate in such aspects to my clients, moreover, you did not classified the categories of NPA and its’ durations and causes as per the directives and guidelines issued in that behalf by the RBI in the year 2003. Henceforth, the Classification of NPA of my client’s account has not been done in accordance with the prevailing law, since there was no scope to describe my client’s account as a NPA at any occasions, whatsoever. Thus the Classification as NPA of my client’s account is not maintainable in the eye of law.

 

7.   That you did not given any notice of Recall of any amount, whatsoever, nor you did communicate in that regard to my clients and whereas you purposively recalling the Loan Amount which has been granted to my clients, rather you recall the adjustable remaining loan amount on and after consideration and adjustment of the payments made by my clients till date. You have shown a statement of Dues as on 13/01/2023, for the amount of Rs. 30,74,925.13/- in respect of Loan Account No. 1665619001334 ( Loan Against residential Property ), dated 10/07/2018, without discussing the rate of interest calculation and the basis of other charges, and the calculation of amortization principal amounts arrival, Henceforth the schedule of description of the Dues as described by you in your said notice dated 13^th day of January’ 2023, is wholly wrong and without any legal basis, and whereas you have issued this notice suppressing the material facts that under which manner you have arrived on such dues amount. Furthermore you did not disclose the rate of interest charged appropriately thereon and neither you have provide any basis to that.

 

8.   That my client never created any security interest by way of mortgage of immovable property with you, neither had knowingly declared or put signature on any declaration or documents which created legally enforceable instrument, to create security interest in their immovable property, as described by you in your said notice dated 13^th day of January’ 2023.

 

9.   That it is further stated that the title of the mortgagor to the property, as such, bears certain deficiencies and such deficiencies were patently existing even at the time of issuing your notice dated 13^th day of January’ 2023. However, my client refrain from commenting on the gross infirmity in the mortgage itself, because in the context of repayment of liability, such questions are not relevant at this stage.

 

10.                That it is further stated that the amount due and payable in the books of the bank is not correctly mentioned in the notice under reference. The contractual rate of interest has not been disclosed the calculation of outstanding amount has not been described, by you in the notice under reference.

 

11.                That the details set out in the schedule of the notice are vague, indefinite and totally lacking necessary details with regard to measurement, demarcation, value, and description and as such the notice is bad in eye of law. Your kind reference is drawn to schedule of account, which contains incorrect balance under the head “ SCHEDULE-C” and various credits made by my clients as per his record is not shown to have been made in the account. As regards to the respective paragraph, Schedule of the immovable property, it is stated that the legal deficiencies in respect of the property in question are numerous and the mortgage of the said property is not duly created.

 

12.                That without prejudice to the legality of the facts in question, I for and on behalf of my above named clients request you to reschedule the repayment structure of the credit facilities / Loan against residential property, granted by you to my clients on the legally calculated after all the adjustment of the previous repayment by my clients into the said credit facility / Loan account. Furthermore, you are requested to provide the followings for the better accountability of my clients :-

                                                                            

a)    The detail description of the calculation of the DUES as on 13^th day of January’ 2023 - amount, as stated in the notice under reference.

 

b)   The rate of interest charged by you on the credit facilities / Loan against residential property, provided to my client.

 

c)    The statements of Account of the Credit facilities / Loan against residential property.

 

d)   The Agreement Copy of the Credit facilities / Loan against residential property.

 

e)    The schedule and structure of the re-payment of E.M.I. of the Credit facilities / Loan against residential property.

 

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.

 

h)   The letter of the reschedule of the credit facilities / Loan against residential property to my client.

 

13.                It is pertinent to say that the period commencing since the month of March’ 2020, is of a period commencing of pandemic situation which prevented the borrowers in repayment as well as carrying the business activities meaning thereby earning of the borrowers stopped unconditionally. Nationwide Lockdown compelled to protect the life of the Citizen. Such lockdown very slowly released though 2^nd phase of COVID-19 again came into sphere of such pandemic situation and still going on. The Borrowers are affected to the Pandemic Situation and therefore even having willingness to repay, failed only doe non-earning capacity due to such pandemic situation. Legislature’s objective to protect the rights of the Secured Creditor as well as rights of the Borrowers, meaning thereby co-operation to each other in growing business perspective. The Secured Creditor should not indulge in a coercive measure against the borrowers. The Secured Creditor should co-operate and help our the borrowers in such a hurdle of pandemic by providing some more time to borrowers in repayment of the financial facilities, so far.   

 

14.                My Client effected with the Pandemic situation and still suffering thereby by loss of earning measures, so far. My Client did never intend not to pay to the Secured Creditor. My Client need reschedule of EMI in repayment of financial facilities / Loan against residential property. The reschedule of EMI will suffice the purposes of both the Secured Creditor and the borrower. My Client communicated such intention to you on several occasion but yield no result yet.

 

15.                Please also treat these objections with reference to your notice under section 13 ( 2 ) as the objections made by my clients during the repeated visits to the branch, which have not been considered and replied to till date.

 

16.                Without prejudice to the above contentions it is stated that the notice is illegal, totally misconceived, baseless, and issued even in contravention of the object, purpose, and provisions of the SRFAESI Act’ 2002, under the provisions of which it is purported to have been issued, inter alia, on the following grounds :-

 

a)    That your action is not only unwarranted but also tainted with motives extraneous to the statutory provisions of SRFAESI Act. Without prejudice to my client’s right to initiate appropriate legal proceedings under, inter alia section 19 of the SRFAESI Act, my client call upon you to desist from such illegal action against the immovable property.

 

b)   That the said notice is issued in contravention of Section 13 (3) of the SRFAESI Act’ 2002, As per Section 13 (3), the notice referred in section 13 (2) is required to set out details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the even on non-payment of the secured debts payable giving details as to sanction, disbursement, repayment, and outstanding have been mentioned.

 

The aforesaid details are all the more necessary because as per section 31 (j), the provisions of the SRFAESI Act’ 2002, shall not apply in case the amount dues is less than twenty percent of the principal amount. Therefore, the said notice is not in compliance with the provisions of the SRFAESI Act’ 2002, itself.

 

 

c)    Even otherwise, a bare perusal of the provisions of the SRFAESI Act’ 2002, make it absolutely clear that the SRFAESI Act’ 2002, is promulgated primarily for the securitization and reconstruction of financial assets. So, far as the issue of enforcement of security interest in concerned, it is only secondary to it. Therefore, before embarking on any action as per section 13 ( 4 ) of the SRFAESI Act ‘ 2002, for which the notice has purportedly been issued, you are duty bound to ascertain whether dues can be realized by other suitable measures already provided in the SRFAESI Act’ 2002, reconstruction can be done even by reschedulement of payment of debt or by settlement of dues payable by the borrower, the said notice is untenable in the eye of law, since it has been issued without exhausting other remedies provided in the SRFAESI Act’ 2002.

 

d)   It is stated that the object and purpose of the SRFAESI Act’ 2002, is to entitle the secured creditor to enforce the security without the intervention of the court in appropriate cases, which, in essence, refer to cases relating to willful defaulters. It is stated that the borrowers are unable to service its debts for reasons beyond control for a limited time period. Under such circumstances, it is prudent for the secured creditors to support the borrowers in its revival efforts so that interests of all concerned including those of bank can be protected and promoted. The borrowers are not liable, under law and in equity, to be stripped of their assets while they struggle to survive against harsh economic realities hold a fair promise for repayment of the dues of the bank.

 

e)    That the said notice is premature as its purports to enforce “Security interest” against the property, which in fact has not been created so far, nor it can be created unless and until the Central Registry is being set up as per the provisions of Chapter IV of the SRFAESI Act’ 2002,. Because Section 2(zc) defines “ Secured assets” to means the property on which security interest is created. While section 20 says that the Central Government shall set up a Central Registry for the purpose of creation of security interest under the said SRFAESI Act’ 2002.

 

f)     That the classification of credit facilities of my client’s account as nonperforming assets / doubtful / loss assets / is bad in law, because :

 

1     : classification has done arbitrarily and without prior notice to my clients.

 

2     : classification is contrary to the guide lines / directions issued by the authority established by law to administer your bank / by the Reserve Bank of India.

 

Such classification being condition precedent to the issue of notice under section 13 (2) of the SRFAESI Act’ 2002, noncompliance with such guidelines / directions vitiates the notice as a whole.

 

g)    That the present notice is not maintainable as the same is not issued in compliance with section 36 of the SRFAESI Act’ 2002. Section 36 of the SRFAESI Act’ 2002, states that law of limitation will apply in respect of the claim made by the bank, and the amount claimed as on date of your notice is barred by the law of limitation.

 

h)   That as per section 13 of the SRFAESI Act’ 2002, the bank is bound to disclose in the notice itself the measures to be taken by the bank towards maintenance and upkeep of the assets purported to be taken possession of. Admittedly, no such details have been provided by you.

 

i)     That Section 19 in The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Right of borrower to receive compensation and costs in certain cases.—If the Debts Recovery Tribunal or the Court of District Judge, on an application made under section 17 or section 17A or the Appellate Tribunal or the High Court on an appeal preferred under section 18 or section 18A, holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of this Act and rules made thereunder and directs the secured creditors to return such secured assets to the concerned borrowers, such borrower shall be entitled to the payment of such compensation and costs as may be determined by such Tribunal or Court of District Judge or Appellate Tribunal or the High Court referred to in section 18B.

 

IN VIEW OF WHAT HAS BEEN STATED ABOVE, THE NOTICE DESERVES TO BE WITHDRAWN.

 

It is requested that the proposal contained in the opening paragraph number 12, of this letter being a)     The detail description of the calculation of the DUES as on 13^th day of January’ 2023 - amount, as stated in the notice under reference. b) The rate of interest charged by you on the credit facilities / Loan against residential property, provided to my client. c) The statements of Account of the Credit facilities / Loan against residential property. d) The Agreement Copy of the Credit facilities / Loan against residential property. e) The schedule and structure of the re-payment of E.M.I. of the Credit facilities / Loan against residential property. 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 to my client, may be given due consideration and acceptance thereof may be conveyed to my client, so that my client may work towards the repayment according to the reconstruction of the credit facilities on its reschedule structure of the dues, as ascertained in a legal manner, prevailing the RBI Guidelines.

 

Thanking you,

 

Professionally yours’

 

 

Rabindra Nath Das.

Advocate.

High Court Calcutta.

 

Section 220 of the Companies Act

 

220. Three copies of balance sheet, etc., to be filed with Registrar

(1) After the balance-sheet and the profit and loss account have been laid before a company at an annual general meeting as aforesaid, there shall be filed with the Registrar ¹[within thirty days from the date on which the balance-sheet and the profit and loss account were so laid] ²[or where the annual general meeting of a company for any year has not been held, there shall be filed with the Registrar within thirty days from the latest day on or before which that meeting should have been held in accordance with the provisions of this Act].

(a) ³[***] three copies of the balance-sheet and the profit and loss account signed by the managing director, ⁴[***] manager or secretary of the company, or if there be none of these, by a director of the company, together with three copies of all documents which are required by this Act to be annexed or attended to such balance-sheet or profit and loss account:

⁵[Provided that in the case of a private company, copies of the balance-sheet and copies of the profit and loss account shall be filed with the Registrar separately:]

⁶[***]

⁵[Provided further that,-

(i) in the case of a private company which is not a subsidiary of a public company, or

(ii) in the case of a private company of which the entire paid-up share capital is held by one or more bodies corporate incorporated outside India, or

(iii) in the case of a company which becomes a public company by virtue of section 43A, if the Central Government directs that it is not in the public interest that any person other than a member of the company shall be entitled to inspect, or obtain copies of the profit and loss account of the company,

no person other than a member of the company concerned shall be entitled to inspect, or obtain copies of, the profit and loss account of that company under section 610.]

(2) If the annual general meeting of a ⁷[***] company before which a balance-sheet is laid as aforesaid does not adopt the balance-sheet ⁸[or is adjourned without adopting the balance-sheet] ⁹[or, if the annual general meeting of a company for any year has not been held] a statement of that fact and of the reasons therefor shall be annexed to the balance-sheet and to the copies thereof required to be filed with the Registrar.

(3) If default is made in complying with the requirements of sub-sections (1) and (2), the company, and every officer of the company who is in default, shall be liable to the like punishment as is provided by section 162 for a default in complying with the provisions of sections 159, 160 or 161.

1. Subs. by Act 31 of 1965, sec. 62 and Sch., for certain words (w.e.f. 15-10-1965).

2. Ins. by Act 46 of 1977, sec. 5 (w.e.f. 24-12-1977).

3. The words "in the case of a public company" omitted by Act 65 of I960, sec. 66 (w.e.f. 28-12-1960).

4. The words "managing agent, secretaries and treasurers," omitted by Act 53 of 2000, sec. 104 (w.e.f. 13-12-2000).

5. Ins. by Act 65 of 1960, sec. 66 (w.e.f. 28-12-1960).

6. Clause (b) omitted by Act 65 of I960, sec. 66 (w.e.f. 28-12-1960).

7. The words "public or private" omitted by Act 65 of I960, sec. 66 (w.e.f. 28-12-1960).

8. Ins. by Act 31 of 1988, sec. 32 (w.e.f. 15-6-1988).

9. Ins. by Act 46 of 1977, sec. 5 (w.e.f. 24-12-1977).