IN
THE DEBTS RECOVERY TRIBUNAL SILIGURI
PCM Tower, 2nd Floor, 2 no. Mile, Sevoke
Road,
Siliguri - 734001.
SARFAESI
APPLICATION NO 27 OF 2022
{
Diary no. 254/2021 }
HASNA BEWA
---
---- APPLICANT
–
VERSUS –
PUNJAB NATIONAL BANK
-----
---- RESPONDENT
Written Notes of Argument
On behalf
The Applicant
The present SA application has been filed by the applicant challenging
the proprietary and entirety of the Possession Notice dated 05.11.2021 being
mode of taking possession of secured assets in an unlawful manner by the
Respondent.
The said Possession Notice dated 05.11.2021, contained the following
statements, which are contrary to the Law;
(a) The undersigned being the Authorised Officer
of the Punjab National Bank under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 and in exercise
of Powers conferred under Section 13 read with Rule 3 of the Security Interest
(Enforcement) Rules, 2002, issued a demand notice dated 14.09.2021 calling upon
the Borrower Hasna Bewa to repay the amount mentioned in the notice being Rs.
18,83,206.87 (Rupees Eighteen Lakh Eighty Three Thousand Two Hundred Six and
Eighty Seven paise only) interest charged upto 31.03.2021 as on 12.08.2021 with
further interest until payment in full within 60 days from the date of notice/
date of receipt of the said notice.
(i)
At the first threshold it is well understood
that the Authorised Officer issued a demand notice dated 14.09.2021,
purportedly under Section 13(2) which give the clear statutory period of 60
days from the date of receipt of the notice, then under what stretch of
imagination the authorized officer issued the present possession notice only on
expiry of 52 (Fifty Two) days commencing from the 14th day of
September’ 2021, being the date of the said Demand Notice under Section 13(2).
Pertinently the applicant is not in receipt of any demand notice purportedly
under Section 13(2) of SARFAESI Act, 2002, and the Possession Notice dated
05.11.2021 was the first notice being the measure & mode of taking secured
assets by the respondent, which stated about the said demand notice dated
14.09.2021, but did not state on which date the same was ever served on the
applicant. The applicant was not in receipt of the said purported demand notice
dated 14.09.2021, therefore the applicant did not have any iota or knowledge
about the statement or contents ever described therein by the respondent. Since
the applicant was not in receipt of the said purported alleged demand notice
dated 14.09.2021, the applicant did not avail any opportunity to raise her
objection if any to the said purported alleged demand notice dated 14.09.2021.
The applicant was never in a position to avail the statutory period of 60
(Sixty) days since the applicant was not in receipt of the said purported
alleged demand notice under Section 13(2) of SARFAESI Act, 2002. The said
Demand Notice dated 14-09-2021, is an illusory notice without having any
existence, so far. The respondent Bank did not submit its reply to the application
placed by the applicant under Section 17 of the SARFAESI Act, 2002. However in
an IA application challenging the Order under Section 14 of the SARFAESI Act,
2002, passed by the ADM Murshidabad, the respondent Bank filed its objection
though did place any copy of the said purported Demand Notice dated 14-09-2021,
and even did not place any proof of services of the said alleged demand notice
upon the applicant. It is also not
clarified that avoiding the statutory norms how the respondent Bank issued the
present Possession Notice dated 05.11.2021, prior to the expiry of statutory
period of 60 (Sixty) days. Thus there is no sufficient genuine cause has ever
been accrued to give the present possession notice dated 05.11.2021, and
therefore the same is well liable to set aside inlimnie with exemplary cost of the respondent Bank.
(ii)
At the Second threshold it is well understood
that the authorized officer calling upon the Borrower Hasna Bewa to repay the
amount mentioned in the notice being Rs. 18,83,206.87 (Rupees Eighteen Lakh
Eighty Three Thousand Two Hundred Six and Eighty Seven paise only) interest
charged upto 31.03.2021 as on 12.08.2021 with further interest until payment in
full within 60 days from the date of notice/ date of receipt of the said notice,
in this regard the sanctioned Letter dated 18/11/2017, speaks about the
sanctioned sum of money as Rs. 18,00,000/- plus Bajaj Life Rs., 65,314/- thus
the total sum of money as Rs. 18,65,314/- has been sanctioned for the repayment
by 180 (One hundred Eighty) months in Equated Monthly Installment as of Rs.
17,260/- (Rupees Seventeen Thousand and
two hundred sixty) only. The Learned Advocate’s Notice dated 09-04-2021, on
behalf of the Respondent Bank stated that the concerned Loan Account has been
classified as NPA on 31.03.2021, and Rs. 18,83,208/- (Rupees Eighteen Lakhs
Eighty Three Thousand and Two Hundred Eight) only, is due as on 01.04.2018.
Therefore the demanded sum of money and the date of accrual of such demand are
not believable as its varied in each communication by the respondent Bank.
(b) The borrower
having failed to repay the amount, notice is hereby given to the borrower and
the public in general that the undersigned has taken possession of the property
described herein below in exercise of powers conferred on him under sub-section
(4) of Section 13 of Act read with rule 8 of the Security Interest Enforcement)
Rules, 2002, on this the 05th day of November of the year 2021.
(i)
The
undersigned has taken possession of the property described herein below in
exercise of powers conferred on him under sub-section (4) of Section 13 of Act
read with rule 8 of the Security Interest Enforcement) Rules, 2002, on this the
05th day of November of the year 2021. The scheme of Section 13(4)
of the Act read with Rule 8(1) of the Rules makes it clear that the delivery of
a possession notice together with affixation on the property and publications
one mode of taking “possession” under Section 13(4) of the Act, and as such
Section 17 of the Act is attracted one possession is taken under Rule 8(1) and
Rule 8 (2) of the Rules read with Section 13(4)(a) of the Act.
(ii)
If
a Secured creditor does not act in conformity with the Act to realize the
secured debt, the borrower may take recourses to seeking appropriate relief
from the DRT. Thus, the object of the Act would be stultified if the borrower
must wait for sale notice to be issued or for the actual sale to take place
before taking recourse to Section 17 of the Act. Therefore the borrower need
not wait till the bank/ financial institution takes such steps, but may now,
under Section 17 (1) of the Act, prefer an application to challenge these
measures even at the stage of constructive possession by the bank/ financial
institution.
The
said Possession Notice dated 05.11.2021, published in daily English News Paper
“Financial Express” on Wednesday, November 10, 2021, which gives the
particulars as for (i) Demand Notice dated 14.09.2021, (ii) Possession Notice
dated 05.11.2021, (iii) Rs. 18,83,206.87 (Rupees Eighteen Lakh Eighty
Three Thousand Two Hundred Six and Eighty Seven paise only) interest charged
upto 31.03.2021 as on 12.08.2021, and interest thereon.
Since the said Possession Notice dated 05.11.2021,
has not assailed in conformity with the prescribed provisions of the SARFAESI
Act, 2002, discussed above, the same would be set aside as not maintainable and
void in the facts as well as in the eye of Law with exemplary cost on the
respondent Bank. The applicant is entitle to get compensation in terms of the
provision of Section 19 of the SARFAESI Act, 2002.
That’s, apart the applicant stated about the
entire story of her that how the bank officials cheated her money taken due
advantages of her rustiness & innocence. The complaint to the respondent
Bank as well as to the Police has been annexed with the application.
The applicant is an honest borrower, which
clearly depicted in her earlier loan account, which she has paid on time and
obtain the NOC from the respondent Bank, the same has been annexed with the
applicant.
Judicial References;
(i)
M/s.
Hindon Forge Pvt. Limited & Anr. Versus State of Uttar Pradesh [(Civil
Appeal No. 10873 of 2018 along with Civil Appeal No. 10874 of 2018)] (2019) 2
SCC 198
[ Held that a borrower can prefer an
application under Section 17(1) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Securities Interest Act, 2002, even before
physical or actual possession of secured assets is taken over by banks/
financial institutions in exercise of their powers under Section 13(4) of the
Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 ]
[ The SC set aside the Allahabad HC
Order and held that a borrower is entitled to approach the DRT under Section 17
of the Act at the stage of Possession notice under Rule 8(1) and Rule 8(2) of
the Rules ]
[ If a Secured creditor does not act
in conformity with the Act to realize the secured debt, the borrower may take
recourses to seeking appropriate relief from the DRT ]
[ 26. Section 19, which is strongly relied upon by Shri Ranjit Kumar, also
makes it clear that compensation is receivable under Section 19 only when
possession of secured assets is not in accordance with the provision of this
Act and Rules made thereunder. The scheme of Section 13(4) read with Rule 8(1)
therefore makes it clear that the delivery of a possession notice together with
affixation on the property and publication is one mode of taking “possession”
under Section 13(4). This being the case, it is clear that Section 13(6) kicks
in as soon as this is done as the expression used in Section 13(6) is “after
taking possession”. Also, it is clear that Rules 8(5) to 8(8) also kick in as
soon as “possession” is taken under Rules 8(1) and 8(2). The statutory scheme,
therefore, in the present case, is that once possession is taken under Rules
8(1) and 8(2) read with Section 13(4)(a), Section 17 gets attracted, as this is
one of the measures referred to in Section 13(4) that has been taken by the
secured creditor under Chapter III. ]
(ii)
Authorised
Officer, Indian Overseas Bank and Another Versus Ashok Saw Mill (2009) 8 SCC
366
[ The Supreme Court interpreted the
correlation between Sections 13(40 and 17 holding that the plethora of remedies
and power conferred under Section 17 acts as “checks and balances” on the
creditors from misusing their powers ]
[ Section 17 balances the stringent
powers of recovery of their dues vested with the banks/ Financial Institutions
and DRT can even restore possession after the same has been made over to the
transferee by declaring any action under Section 13 as void ]
(c)
IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI , PCM Tower, 2nd
Floor, 2 no. Mile, Sevoke Road, Siliguri - 734001.
S.
A. NO. 27 OF 2022
{
Diary no. 254/2021 }
In
the matter of :
Hasna
Bewa, ______Applicant
-
Versus
–
Punjab
National Bank
_______Defendant
Written Notes of Argument
On behalf
The Applicant
Advocate – on
– record :
Ashok Kumar
Singh, Advocate
High Court Bar
association Room No. 15, High Court at Calcutta
Mobile Number
: 9883070666 / 9836829666
