IN
THE DEBTS RECOVERY TRIBUNAL III,
KOLKATA
JEEVAN SUDHA BUILDING (8th FLOOR)
42C, J.L. NEHRU ROAD
KOLKATA – 700 071
IA
NO. ______________Of 2025
(Diary
No. ______________of 2025)
Arising
out of
SARFAESI
APPLICATION NO. 627 OF 2024
(Diary
No. 1210 of 2024)
In the
matter of;
M/s.
Global Aqua, & Another;
---
---- PETITIONERS
–
VERSUS –
Canara
Bank, & Another;
-----
---- RESPONDENTS
AN
APPLICATION TO SET ASIDE ORDER DATED 21/01/2025, PASSED IN COMPLAINT CASE NO.
220 OF 2024, RE-CHRISTENED AS MISC CASE NO. 29 OF 2025, CNR NO.
WBHW120023152024, (CASE U/S. 14 SARFAESI ACT) BY LEARNED COURT OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, ULUBERIA, HOWRAH (J.O. CODE – WB 00953);
The humble petition of the above named
Petitioners, most respectfully;
Sheweth as under :
1. That
the above referred application has been placed under 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
dated 03-07-2024, under Rule 8 (1) of the Security Interest (Enforcement)
Rules, 2002, in respect of the Immovable Property categorized as Primary
Security and Collateral Security, wherein the Primary Security is in respect of
the Industrial Land as described and the Collateral Securities are the
residential occupation, and thereby asked to pay Rs. 11,51,75,616.12/- (Rupees
Eleven Crore Fifty One Lakhs Seventy Five Thousand Six Hundred Sixteen and
paise twelve) only, within Sixty days. A copy of the said notice was pasted on
the wall of the premise of the petitioner. The said possession notice issued by
the concerned respondent bank is arising out of the Notice dated 28/03/2023,
under Section 13(2) of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act’ 2002.
2. That
during pendency of the above referred SARFAESI application, the petitioners
came into knowledge from searching of the E-Courts Services, that the
respondent Bank has assailed with an application under Section 14 of SARFAESI
Act 2002, which has been registered as Complaint Case No. 220 of 2024, before
the Learned Additional Chief Judicial Magistrate, Uluberia, Howrah. The
Petitioners submitted Written Objections to the said application. The Learned
Magistrate taken the said application being Complaint Case no. 220 of 2024, on
21-01-2025, and was pleased to pass Order dated 21/01/2025, the operative
portions of the said Order dated 21/01/2025, is reproduced herein as follows;
“Hence,
it is ORDERED that, the applicant/ secured creditor i.e. Canara Bank,
represented by it’s authorized officer is hereby permitted to take physical
possession of the immovable property of the borrower/ respondent as morefully
described in the schedule of the application and reproduced thus:- Schedule of
the property Equitable mortgaged of Industrial Land at Nawpala, P.S. Bagnan,
Block –Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303,
in the name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. Equitable mortgaged of Factory Shed/ Boundary at Nawpala, P.S. Bagnan,
Block –Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303,
in the name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. The Head Clerk, ACJM Court, Uluberia, Howrah, is hereby directed to take
physical possession of the scheduled property and upon taking such possession,
the same shall be handed over to the authorized officer of the applicant bank/
secured creditor. If the schedule property is under lock and key, the
petitioner/ secured creditor may break open the same on following terms and
conditions :-
1.
That the padlock of the lock and key of
the scheduled property shall be broken in presence of the authorized officer of
the applicant/ secured creditor i.e. Canara Bank.
2.
That such breaking open of the padlock/
lock shall be undertaken in presence of a reputed person of the locality
wherein the scheduled property is situate.
3.
That upon such breaking open of the
padlock/ lock, the applicant/ Bank shall prepare a inventory list in respect of
the articles lying inside the premises forming the scheduled property.
4.
That upon preparation of such inventory
copies of the same shall be handed over the head Clerk, ACJM Court, Uluberia,
the respondent/ borrower and this Court, forthwith, and
5.
That the Head Clerk, ACJM Court,
Uluberia, Howrah shall be at liberty to seek Police help in case he faces any
obstruction in carrying out the order of this Court and shall submit a
compliance report of the same forthwith.
The applicant/
secured creditor shall bear the expenses/ stipulated cost for providing force
by the police.
Let a copy of this
order be provided to the head Clerk, ACJM Court, Uluberia, Howrah, and the
Secured Creditor for information and compliance. To 19.02.2025 for report.
Certified copy of the
impugned Order dated 21-01-2025, passed in Complaint Case No. 220 of 2024,
re-christened as Misc Case No. 29 of 2025, CNR No. WBHW120023152024, by the
Learned Additional Chief Judicial Magistrate, Uluberia, Howrah (J.O. Code –
WB00953),
is annexed herewith.
3. That
the Possession Notice dated 03-07-2024, under Rule 8 (1) of the Security
Interest (Enforcement) Rules, 2002, in respect of the Immovable Property
categorized as Primary Security and Collateral Security, wherein the Primary
Security is in respect of the Industrial Land as described and the Collateral
Securities are the residential occupation, and thereby asked to pay Rs.
11,51,75,616.12/- (Rupees Eleven Crore Fifty One Lakhs Seventy Five Thousand
Six Hundred Sixteen and paise twelve) only, within Sixty days. A copy of the
said notice was pasted on the wall of the premise of the petitioner. The said
possession notice issued by the concerned respondent bank is arising out of the
Notice dated 28/03/2023, under Section 13(2) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002.
Photostat
Copies of the Possession Notice dated 03-07-2024, under Rule 8 (1) of the
Security Interest (Enforcement) Rules, 2002, and Notice dated 28/03/2023, under
Section 13(2) of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act’ 2002, are annexed herewith and marked as
Annexure – “A” Collectively.
4. That
the applicant is the proprietor of the Proprietorship Firm under the name and
style of M/s. Global Aqua and is engaged in the business of processing,
trading, and exports of fish and fishery products. Pertinently, the applicant
availed credit facilities since the month of November’ 2016, in the nature of
MSME Sahay, Car Loan, and Packing Credits, from the Respondent Bank, wherein
the applicant paid in full, the said MSME Sahay Loan of Rs. 60 Lakhs, & Car
Loan of Rs. 10 Lakhs, in terms prescribed by the Respondent Bank. The Term Loan
has been continuing in terms of the repayment prescribed by the Respondent
Bank.
5. That
the said Term Loan being No. 0145766000027, has been sanctioned by the
Respondent Bank considering the Credit worthiness of the Petitioner, on
27-12-2017, for a sum of Rs. 8,90,00,000/- (Rupees Eight Crore Ninety Lakhs)
only, which the petitioner had been paying continuously to the respondent bank
which commenced as per instructions of the respondent bank on 27/01/2018. The
petitioner has paid a sum of Rs. 1,83,52,560/- (Rupees One Crore Eighty Three
Lakhs Fifty Two Thousand and Five Hundred Sixty) only, as on 31/03/2020, Rs.
1,17,01,000/- (Rupees One Crore Seventeen Lakhs and One Thousand) only, as on
31/03/2021, Rs. 2,85,68,864/- (Rupees Two Crore Eighty Five Lakhs Sixty Eight
Thousand and Eight Hundred Sixty Four) only, as on 31-03-2022, Rs.
2,23,42,230/- (Rupees Two Crore Twenty Three Lakhs Forty Two Thousand and Two
Hundred Thirty) only, as on 31-03-2023, and Rs. 2,13,46,875/- (Rupees Two Crore
Thirteen Lakhs Forty Six Thousand and Eight Hundred Seventy Five) only, as on
31-03-2024, therefore the total sum of repayment is Rs. 10,23,11,529/- (Rupees
Ten Crore Twenty Three Lakhs Eleven Thousand and Five Hundred Twenty Nine)
only, made by the Petitioner to the Respondent Bank as on 31-03-2024. The terms
of the repayment by the Petitioner showed his credit worthiness and good
concise in making repayment to the respondent bank.
Photostat
Copy of the Term Loan Statements are annexed herewith and marked as Annexure – “B”
Collectively.
6.
That the GECL is a loan for which 100%
guarantee would be provided by National Credit Guarantee Trustee Company
(NCGTC) and which will be extended in the form of additional working capital
term loan facility to eligible MSMEs/ Business Enterprises and interested
Pradhan Mantri Mudra Yojana (PMMY) borrowers. The loan tenure is
six years from the date of the first disbursement, including a two-year
moratorium period. The interest rate is 1 year MCLR plus 0.60% per annum,
or MSME - RLLR plus 0.60% per annum. The maximum interest rate is 9.25%
per annum. There is no pre-payment penalty if the loan is repaid
early. The account can be operated in combination with applicable interest
subvention schemes. The primary assets are those created out of the credit
facility. The GECL has been surfaced during the Covid-19 period pursuing
the financial situation in the Pandemic by the Government of India. In the
instant case in hand the Respondent Bank on due intervention of the Government
of India, has given sanctioned of Working Capital Term Loan under GECL Scheme
vide Ref. No. 0145/111/2020-21, dated 22.09.2020, for a sum of Rs. 160 Lakhs
(Rupees One Hundred Sixty Lakhs) only, to build up current assets, to meet
operational liabilities and restart the business activity of Processing,
Trading and Exports of Fish and Marine Products of the Petitioner. The Tenure
of the said GECL is for 48 months, by giving 12 months moratorium on surfacing
the 7.50% rate of interest thereon, wherein the Primary Security assets created
out of the existing credit facility permitted. The Petitioner did not apply for
such GECL credit facility. The Respondent Bank suo-moto has driven such
financial facility to the Petitioner, considering his creditworthiness. The
Petitioner obliged in making the repayment to the said GECL Financial facility
to the respondent bank. The Petitioner had paid a sum of Rs. 3,39,774/- (Rupees
Three Lakhs Thirty Nine Thousand and Seven Hundred Seventy Four) only, as on
31-03-2021, Rs. 28,59,000/- (Rupees Twenty Eight Lakhs and Fifty Nine Thousand)
only, as on 31-03-2022, Rs. 55,88,896/- (Rupees Fifty Five Lakhs Eighty Eight
Thousand and Eight Hundred Ninety Six) only, as on 31-03-2023, and Rs.
56,73,815/- (Rupees Fifty Six Lakhs Seventy Three Thousand and Eight Hundred
Fifteen) only, as on 31-03-2024, therefore a total sum of Rs. 1,44,61,485/-
(Rupees One Crore Forty Four Lakhs Sixty One Thousand and Four Hundred Eighty
Five) only has been paid by the Petitioner to the Respondent Bank by
31-03-2024. Pertinently, the tenure of the repayment has not yet been expired.
Photostat copy of
the GECL guideline and related notification with the GECL Loan Statements are
annexed herewith and marked as Annexure “C” Collectively.
7. That
the Petitioner had availed Packing Credit Limit understand as PC/FDB/FBE, from
the Respondent Bank on 16/03/2016, for a sum of Rs. 200 Lakhs for purchase of
raw material and for other pre-shipment expenses and for
discount/negotiation/purchase of export bills against confirmed orders/ letter
of credit of prime bank, backed by buyer wise policy, the period for repayment
is 90 days, the tenability of the said Packing Credit is one year from the date
of sanction. The Fresh Packing Credit Limit has been given by the Respondent
Bank on 24/11/2017 to the Petitioner upon total payment realization of the
earlier Packing Credit limit, to the limit from 450 Lakhs to Rs. 550 Lakhs. The
Fresh Packing Credit Limit has been given by the Respondent Bank on 22/05/2019 to
the Petitioner upon total payment realization of the earlier Packing Credit
limit, to the limit of Rs. 550 Lakhs. The Fresh Packing Credit Limit has been
given by the Respondent Bank on 18/10/2019 to the Petitioner upon total payment
realization of the earlier Packing Credit limit, to the limit 900 Lakhs. The
Fresh Packing Credit Limit has been given by the Respondent Bank on 22/03/2021
to the Petitioner upon total payment realization of the earlier Packing Credit
limit, to the limit of Rs. 600 Lakhs. The Fresh Packing Credit Limit has been
given by the Respondent Bank on 07-09-2022 to the Petitioner upon total payment
realization of the earlier Packing Credit limit, to the limit of Rs. 600 Lakhs.
The Fresh Packing Credit Limit has been given by the Respondent Bank on
29/02/2024 to the Petitioner upon total payment realization of the earlier
Packing Credit limit, to the limit of Rs. 300 Lakhs. The Petitioner has made
the repayment of the Packing Credit Limit time and again in terms prescribed by
the Respondent Bank.
Photostat
copy of the Sanction Memorandums of Packing Credit are annexed herewith and
marked as Annexure “D” Collectively.
8. That
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 to the
petitioner. The said demand notice stated that the Loan accounts of the
petitioner 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
Respondent Bank had sanctioned various renewals even in 2024. In the case in
hand the respondent 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 approache, 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 Petitioner. Therefore, the amount demanded in the said Demand
Notice is also bad in law and a clear indication of malpractice by the
Respondent 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 Respondent Bank had been wary about the
non-disbursal of the housing loan, yet they did not take any corrective
measure.
9. That
the Petitioner 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
Respondent Bank, without obtaining any consent and knowledge of the Petitioner.
If the Respondent Bank had been fair in its practice and realized the amount
towards GECL Loan the account of the petitioner would not have been consider
for NPA, any more. Very surprisingly, the Respondent 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 Petitioner’s loan were sanctioned on
29-02-2024. Such unfair trade practices by the respondent bank can be construed
as mala fide and corrupt which has resulted in undue hardship upon the petitioner.
10.
That the Petitioner had sent an e-mail
dated 22-03-2024 thereby informing the respondent 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 Respondent Bank towards the payment
of the aforementioned payments. Furthermore, the Petitioner had stated the
financial condition will change in the month of April’ 2024, wherein the
Petitioner will be able to make the payments.
11.
That the Respondent Bank replied to its
e-mail dated 22-03-2024 stating inter alia that the Fixed Deposits lying with
the Respondent Bank are parts of Security for the Loan availed by the
Petitioner and further stated that the Petitioner is required to clear the
overdues otherwise the Petitioner’s account would be classified as a
Non-Performing Asset (NPA) on that day.
Photostat
copies of the Email communications between the Petitioner and the Respondent
Bank are annexed herewith and marked as Annexure – “E” Collectively.
12.
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 to the petitioner. 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 the petitioner, illegally.
13.
That so long a concrete statement of
account is not prepared showing the actual debt of the petitioner, no notice
demanding payment on the basis of fictitious transaction can be served and
acted upon against any person. In the instant case the dubious stands of the
respondent bank has surfaced; Specially, when in-spite of having the specific
knowledge of non disbursement of housing loan to the petitioner they still
stick to their demand. Such arrogance and fraudulent approach of the respondent
bank are surprising and require immediate intervention of the Hon’ble Tribunal.
14.
That the desperation of the respondent
bank is also clearly visible from their conduct in proceeding under Section
13(4) of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act’ 2002. This conduct itself is an attempt
to throttle the petitioner, so that the respondent bank can behave like a
vulture on the dead body of the petitioner. It is the obligation of the
respondent bank as to why they can claim money from the proposed disbursement
of housing loan, without correction of the mistake of the bank. Further
arrangement to realize, the said amount in itself to fraud and perjury.
15.
That the Learned Advocate for the
respondent 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.
16.
That the Petitioner states 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 to the petitioner.
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 the
petitioner, illegally.
17.
That the Petitioner states that Housing
Loan has never been disbursed even after sanctioned by the Respondent Bank. No
money on account of Housing Loan No.
160001872780, has ever been given to the Petitioner or to the Developer
favouring to the Petitioner in Purchasing the Flat in terms of registered
Agreement for sale dated 21/10/2021, registered in Book No. I, Volume No:
1904-2021, Page No: 545024 to 545075, Being No. 190411911/2021, registered in
the office of the A.R.A. - IV KOLKATA. Surprisingly, the Respondent bank had
taken the EMIs from the Petitioner, deducting the amount on their own without
any consent or intimation to the Petitioner. The Petitioner is astonished in coming
to the knowledge of such fact which surfaced in the purported notice
dated 28/03/2023, under Section 13(2) of the Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest Act’ 2002, and on
subsequent recourses adopted by the Respondent Bank against the Petitioner. The
Petitioner is not liable to pay any money on account of non-disbursement of
Housing Loan. The Petitioner is entitled to get his money back with appropriate
banking rate of interest thereon which has been deducted and or taken by the
Respondent Bank as alleged illegal EMIs of the said Housing Loan.
Photostat
Copy of the Sanction Memorandum of Housing Loan dated 27-09-2023, is annexed
herewith and marked as Annexure – “G”.
18.
That the Petitioner states that the
Petitioner found another Loan Account being Housing Loan Secure Account Number
164003832543, in 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, which has never been applied by the Petitioner and
sanctioned by the Respondent Bank, though a different loan account has been
surfaced at the behest of the Respondent Bank and surprisingly EMIs are being
deducted by the Respondent Bank without any information and consent of the
Petitioner. Therefore the Petitioner is entitled to get his money back with
appropriate banking rate of interest which has been illegally taken by the
Respondent Bank.
19.
That the Petitioner states that Housing
Loan No. 160001872780, and Housing Loan
Secure Account Number 164003832543, are the established cause of fraud by the
Respondent Bank against the Petitioner to ruin his business and to reveal such
truth, the Forensic Audit is required by the independent Auditor upon the
necessary directions of the Hon’ble Tribunal.
20.
That the Petitioner states that
Forensic Audit is necessary to unearth the true states of affaire in giving the
financial facilities by the Respondent Bank as well as in availing the
financial facilities by the Petitioner, herein. More particularly in respect of
Housing Loan No. 160001872780, and
Housing Loan Secure Account Number 164003832543, which are never given or
disbursed by the Respondent Bank to the Petitioner, though the EMIs have been
deducted and taken on such fraudulent fictitious Loan Accounts by the
respondent Bank.
21.
That the Petitioner states 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, does not disclose the Real Debts owed by the Respondent Bank against the
Petitioner, herein.
22.
That the Petitioner states 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, is a fictitious Demand Notice on
the Petitioner. Pertinently no notice of demand has ever been served on the
Petitioner.
23.
That the Petitioner states that the
alleged Primary Security being EMT of Industrial Land at Nawapala P.S. Bagnan,
Block Bagnan under Saratchandra Gram Panchayat, District Howrah, Pin -711303
comprising in RS Plot No. 482, 486, 504, 555, 544, 542, 543, under J.L. No. 25,
together with the factory shed, are the Plot of Land of Agricultural Nature on
the day, the Original Title Deed has been submitted by the Petitioner to Create
the Equatable Mortgage against the Term
Loan Account Number 0145766000027, in the month of December’ 2017. The
Properties are of agricultural nature on the date of creation of the equitable
mortgage to the Respondent Bank, therefore the provisions of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act’ 2002, is not applicable in respect of the said properties of the
agricultural nature in terms of Section 31(i) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002.
24.
That the Petitioner states that the
Classification of Loan Accounts as NPA has not been adhered to the RBI Guide
line, as the Respondent Bank has realigned the existing limits of the Loan
Account by the Sanctioned Memorandum dated 29-02-2024, and thereafter on elapse
of less than 30 (thirty) days, on 22-03-2024, the said Loan accounts has been
classified as NPA by the Respondent Bank, which is unbelievable and not
acceptable in the eye of Law. Facts showed the illegality in serving the
alleged 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, on the
Petitioner.
25.
That the Petitioner states that the
Possession Notice under Section 13(4) of the Act, 2002, for immovable property,
dated 03-07-2024, is not in prescribed terms of Rule 8(1) of the Security
Interest (Enforcement) Rules, 2002, the description of the properties has not
been given with the butted and bounded. The agricultural property has been
described therein which is a blocked land. Such encumbrances have not been
disclosed even after having full knowledge.
26.
That the Petitioner states that the
conduct itself is an attempt to throttle the petitioner, so that the respondent
bank can behave like a vulture on the dead body of the petitioner. It is the
obligation of the respondent bank as to why they can claim money from the
proposed disbursement of housing loan, without correction of the mistake of the
bank. Further arrangement to realize, the said amount in itself to fraud and
perjury.
27.
That the petitioner states that the
order dated 21-01-2025, passed in Complaint Case no. 220 of 2024, which refused
to take on record the written objection of the petitioner by the learned
Magistrate is an established act of refusal of principle of natural justice.
Even Copy of the said Order has not ever been assailed or directed to give the
Petitioner by the Learned Magistrate is an act of Violation of the established
Law of Land.
28.
That the Petitioner states that the
application under Section 14 of SARFAESI Act 2002 cannot be said to be an
application being complaint which has been registered as Complaint Case no. 220
of 2024, in the Court of the Learned Additional Chief Judicial Magistrate,
Uluberia, Howrah. Such registration is contrary to the Law.
29.
That the Petitioner states that the
said Order dated 21-01-2025, passed in Complaint Case no. 220 of 2024, by the
Learned ACJM, Uluberia, Howrah, clearly reflect and well established that the
Learned Magistrate, failed to take affidavit containing the entire facts
mentioned in Section 14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, as the
Learned Magistrate stated in the said Order dated 21-01-2025 “At this stage,
one affidavit is filed by the petitioner bank through it’s authorized
representative, whereby the petitioner bank affirms that no stay order is in
operation from any corner in respect of this proceeding u/s 14 of SARFAESI Act.
Let same be made part of the record”. It is crystal clear that no affidavit
mentioning the facts in terms of Section
14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, has ever been came before the
Learned Magistrate and has the same ever considered. The Learned Magistrate
violate the provision of law while dealing with the application under Section
14 of SARFAESI ACT 2002, since the affidavit in terms of Section 14(1)(b)(i) to
14(1)(b)(ix) of SARFAESI Act 2002, has never been asked for by the learned
Magistrate from the respondent bank therefore no consideration on the nine point
checklists has ever been taken on record.
30.
That the Petitioner states that it is
requirement of Section 14 of SARFAESI Act that the Authorized Officer of the
Respondent Bank has to file affidavit containing therein facts mentioned in
Section 14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, and in absence of
such affidavit no application under Section 14 of SARFAESI Act dealt with in
any manner, whatsoever.
31.
That the Petitioner states that the
said Order dated 21-01-2025, did not speak about the date of sanction of the
financial assistance, the Loan Account Number or the Contract number by which
such purported financial assistance has ever been given by the respondent bank
to the petitioner. It is depicted in the said purported order that the
financial assistance to the tune of Rs. 17,08,96,461/- was sanctioned as loan to
the petitioner, which is not correct statements, as observed by the Learned
Magistrate.
32.
That the Petitioner states that the
said Order dated 21-01-2025, did not speak about the service of the Demand
Notice under Section 13(2) of the SARFAESI Act 2002, has ever been served on
the Petitioner by the Respondent Bank. Nothing found about the Postal Receipts,
A/D Card returned, or the Postal Track Reports has ever been placed by the
respondent bank to show the sufficient services of the Demand Notice on the
Petitioner. This is also not placed on the record that the demand notice under
section 13(2) of SARFAESI Act 2002, has ever been made published in the News
Papers widely circulated, and therefore there was an occasion has arise that
the Petitioner herein was well in the receipt of the demand notice. Therefore
the said Order dated 21-01-2025, has not given any satisfaction on the due
services of the said demand notice under Section 13(2) of SARFAESI Act 2002,
upon the Borrower.
33.
That the Petitioner states that the
said Order dated 21-01-2025, did not say that the Authorized Officer has ever
tendered any Original documents before the Learned Magistrate, for verification
with copies on record. Such documents are Loan Sanction Memorandum, Loan
Agreements, Title Deeds of Mortgages Property, Notice given under Section 13(2)
of SARFAESI Act to Borrower, postal receipts, Paper Publication etc.
34.
That the Petitioner states that while
the respondent bank has resorted to the remedy under Section 13(4) of SARFAESI
Act 2002, therefore the respondent bank could not directly invoke Section 14 of
the SARFAESI Act 2002, while the measures taken under Section 13(4) of SARFAESI
Act is under challenge before the Tribunal.
35.
That the Petitioner states that the
delegation of the authority of the Learned Magistrate has limitations, under
the provisions of Section 14(1)(a) of the SARFAESI Act 2002. The Learned
Magistrate cannot delegate such power to a Head Clerk or similar position
unless authorized by legislative amendments of the prescribed provisions.
Therefore the Learned Additional Chief Judicial Magistrate does not have the
authority to directly authorize a Head Clerk to take possession of an immovable
property under Section 14 of the SARFAESI Act 2002. The power lies solely with
the Learned Magistrate, who can either take possession himself or delegate the
task to an appropriate officer within his court, but not to a Head Clerk.
36.
That the Petitioner states that the Act
2002 does not explicitly mandate serving a copy of the order passed under this
section to the borrower. However, judicial precedents have addressed the
importance of notifying the borrower to uphold principles of natural justice.
37.
That the Petitioner states that the
impugned Order dated 21-01-2025, described the schedule of the property as
Equitable mortgaged of Industrial Land at Nawpala, P.S. Bagnan, Block
–Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303, in
the name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. Equitable mortgaged of Factory Shed/ Boundary at Nawpala, P.S. Bagnan,
Block –Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303,
in the name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. Which does not contain the (i) identification of property, (ii) boundaries
(butted & bounded), (iii) Property Dimensions being measurement, & (iv)
Landmark being nearby of the property. Therefore the impugned order suffered
with inherent procedural integrity and do not prevent potential legal or
operational issues in taking the possession of the schedule property, which
does not have any clarity in identification, so far.
38.
That the Petitioner states that the
impugned order dated 21-01-2025, contained vague or generic directions, such as
authorizing the secured creditor to “break open” locks without specifically
addressing legal safeguards and the nature of the property in question. This is
because such blanket permissions could lead to misuse, procedural
irregularities, and potential violation of law. The impugned order created
ambiguity or affect properties not related to the secured debt.
39.
That the Petitioner states that the
impugned order should direct possession of the property through lawful means
and under proper supervision, ensuring no damage or undue force is applied. The
impugned order should mandate adherence to tenancy laws, third-party rights,
and other relevant regulations.
40.
That the Petitioner states that from
perusal of the operative portion of the order of the Ld. Magistrate, it
transpire that the Learned Magistrate has not recorded anything about the nine
points affidavit ever submitted by the said secured creditor, and the same has
ever been persuaded to his satisfaction. Next the Learned Magistrate has
permitted the representative of the Secured Creditor to take physical
possession of the immovable property of the borrower, and the description of
the schedule property does not contained the measurement of the plot of land,
boundaries of the property is not there in the schedule, no landmark even given
as nearby of the alleged property, and to very next the Learned Magistrate
directed to the Head Clerk, ACJM Court, Uluberia, Howrah to take physical possession of the schedule property
and upon taking such possession, the same shall be handed over to the
Authorized Officer of the Secured Creditor. If the scheduled property is under
lock and key, the secured creditor may break open the same. The Head Clerk,
ACJM Court, Uluberia, Howrah shall be at liberty to seek police help in case he
faces any obstruction in carrying out the order of this court. Since Section 14
of the SARFAESI Act 2002 required the Magistrate to take possession of the
secured assets and documents and to make it over the secured creditor. In the
instant case the Ld. Magistrate did not adhere to section 14 of the SARFAESI
Act 2002, he proceeded mechanically and de hors the power under Section 14 of
the SARFAESI Act 2002, without application of mind and without ascertaining the
factual correctness of the matter.
41.
That the petitioner states 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.
42.
That the Petitioner states that the
said Complaint Case no. 220 of 2024, being the impugned Criminal proceedings is
manifestly attended with an ulterior motive for wreaking vengeance on the
petitioner with an oblique motive and/ or for an extraneous purpose and was out
and out harassment to the petitioner.
43.
That the Petitioner states that the
enigmatic approach of the respondent bank has created fauxpas to trap him illegally. A nationalized bank is not expected
to get involved in creating such atmosphere which is equivalent to literally
extortion. The Act itself resembles the scheme of vulture accounts more
familiar in the western countries. In the instant case a nationalized bank has
failed the expectation of the billions. As such the Hon’ble Tribunal should
school them accordingly.
44.
Being aggrieved by and dissatisfied
with the purported impugned Order dated 21-01-2025, passed in Complaint Case
No. 220 of 2024, re-christened as Misc Case No. 29 of 2025, CNR No.
WBHW120023152024, by the Learned Additional Chief Judicial Magistrate,
Uluberia, Howrah, as well as the following Notice under Section 13(4) of the
Act, 2002, for immovable property, dated 03-07-2024, as well as notice dated
28/03/2023, under Section 13(2) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act’ 2002, the petitioner
beg to move this application on the following amongst other;
GROUND
I.
FOR
THAT
in terms of the prescribed provisions of the Statute, the Authorised Officer
has to mention the true and correct Demand of Debt, in the Demand Notice under
Section 13(2) of the Act, 2002;
II.
FOR
THAT
the Respondent Bank have wrongly and prematurely classified the Loan accounts
of the Petitioner as a Non Performing Assets (NPA) without following the rules
set forth by the Reserve Bank of India;
III.
FOR
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 to the petitioner.
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 the
petitioner, illegally;
IV.
FOR
THAT
so long a concrete statement of account is not prepared showing the actual debt
of the petitioner, no notice demanding payment on the basis of fictitious
transaction can be served and acted upon against any person. In the instant
case the dubious stands of the respondent bank has surfaced; Specially when
in-spite of having the specific knowledge of non disbursement of housing loan
to the petitioner they still stick to their demand. Such arrogance and
fraudulent approach of the respondent bank are surprising and require immediate
intervention of the Hon’ble Tribunal;
V.
FOR
THAT
the desperation of the respondent bank is also clearly visible from their
conduct in issuing notice under Section 13(8) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002. This conduct itself is an attempt to throttle the petitioner, so that the
respondent bank can behave like a vulture on the dead body of the petitioner.
It is the obligation of the respondent bank as to why they can claim money from
the proposed disbursement of housing loan, without correction of the mistake of
the bank. Further arrangement to realize, the said amount in itself to fraud
and perjury;
VI.
FOR
THAT
the Learned Advocate for the respondent 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 take any steps;
VII. FOR 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 to the petitioner.
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 the
petitioner, illegally;
VIII. FOR THAT
the Housing Loan has never been disbursed even after sanctioned by the
Respondent Bank. No money on account of Housing Loan No. 160001872780, has ever been given to the
Petitioner or to the Developer favouring to the Petitioner in Purchasing the
Flat in terms of registered Agreement for sale dated 21/10/2021, registered in
Book No. I, Volume No: 1904-2021, Page No: 545024 to 545075,
Being No. 190411911/2021, registered in the office of the A.R.A. - IV KOLKATA.
Surprisingly, the Respondent bank had taken the EMIs from the Petitioner,
deducting the amount on their own without any consent or intimation to the Petitioner.
The Petitioner is astonished in coming to the knowledge of such fact which
surfaced in the purported notice dated 28/03/2023, under Section
13(2) of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act’ 2002, and on subsequent recourses adopted
by the Respondent Bank against the Petitioner. The Petitioner is not liable to
pay any money on account of non-disbursement of Housing Loan. The Petitioner is
entitled to get his money back with appropriate banking rate of interest
thereon which has been deducted and or taken by the Respondent Bank as alleged
illegal EMIs of the said Housing Loan;
IX.
FOR
THAT the Petitioner found another Loan
Account being Housing Loan Secure Account Number 164003832543, in 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, which has never been applied by the Petitioner and sanctioned by the
Respondent Bank, though a different loan account has been surfaced at the
behest of the Respondent Bank and surprisingly EMIs are being deducted by the
Respondent Bank without any information and consent of the Petitioner.
Therefore the Petitioner is entitled to get his money back with appropriate
banking rate of interest which has been illegally taken by the Respondent Bank;
X.
FOR
THAT
the Housing Loan No. 160001872780, and
Housing Loan Secure Account Number 164003832543, are the established cause of
fraud by the Respondent Bank against the Petitioner to ruin his business and to
reveal such truth, the Forensic Audit is required by the independent Auditor
upon the necessary directions of the Hon’ble Tribunal;
XI.
FOR
THAT
the Forensic Audit is necessary to unearth the true states of affaire in giving
the financial facilities by the Respondent Bank as well as in availing the
financial facilities by the Petitioner, herein. More particularly in respect of
Housing Loan No. 160001872780, and
Housing Loan Secure Account Number 164003832543, which are never given or
disbursed by the Respondent Bank to the Petitioner, though the EMIs have been
deducted and taken on such fraudulent fictitious Loan Accounts by the
respondent Bank.
XII. FOR 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, does not disclose the Real Debts owed by the Respondent Bank against the
Petitioner, herein;
XIII. FOR 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, is a fictitious Demand Notice on the Petitioner. Pertinently no notice of
demand has ever been served on the Petitioner;
XIV. FOR THAT
the alleged Primary Security being EMT of Industrial Land at Nawapala P.S.
Bagnan, Block Bagnan under Saratchandra Gram Panchayat, District Howrah, Pin
-711303 comrising in RS Plot No. 482, 486, 504, 555, 544, 542, 543, under J.L.
No. 25, together with the factory shed, are the Plot of Land of Agricultural
Nature on the day, the Original Title Deed has been submitted by the Petitioner
to Create the Equatable Mortgage against
the Term Loan Account Number 0145766000027, in the month of December’ 2017. The
Properties are of agricultural nature on the date of creation of the equitable
mortgage to the Respondent Bank, therefore the provisions of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act’ 2002, is not applicable in respect of the said properties of the
agricultural nature in terms of Section 31(i) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002;
XV. FOR THAT
the Classification of Loan Accounts as NPA has not been adhered to the RBI
Guide line, as the Respondent Bank has realigned the existing limits of the
Loan Account by the Sanctioned Memorandum dated 29-02-2024, and thereafter on
elapse of less than 30 (thirty) days, on 22-03-2024, the said Loan accounts has
been classified as NPA by the Respondent Bank, which is unbelievable and not
acceptable in the eye of Law. Facts showed the illegality in serving the
alleged 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, on the
Petitioner;
XVI. FOR THAT
the Possession Notice under Section 13(4) of the Act, 2002, for immovable
property, dated 03-07-2024, is not in prescribed terms of Rule 8(1) of the
Security Interest (Enforcement) Rules, 2002, the description of the properties
has not been given with the butted and bounded. The agricultural property has
been described therein which is a blocked land. Such encumbrances have not been
disclosed even after having full knowledge;
XVII. FOR THAT
the notice dated 07-10-2024, under Section 13(8) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002 is a final call of the illegal recourses of the Respondent Bank served on
the petitioner. Such illegal recourses should be nipped in the bud;
XVIII.FOR THAT
the petitioner states that the order dated 21-01-2025, passed in Complaint Case
no. 220 of 2024, which refused to take on record the written objection of the
petitioner by the learned Magistrate is an established act of refusal of
principle of natural justice. Even Copy of the said Order has not ever been assailed
or directed to give the Petitioner by the Learned Magistrate is an act of
Violation of the established Law of Land;
XIX. FOR THAT
the application under Section 14 of SARFAESI Act 2002 cannot be said to be an
application being complaint which has been registered as Complaint Case no. 220
of 2024, in the Court of the Learned Additional Chief Judicial Magistrate,
Uluberia, Howrah. Such registration is contrary to the Law;
XX. FOR THAT
the said Order dated 21-01-2025, passed in Complaint Case no. 220 of 2024, by
the Learned ACJM, Uluberia, Howrah, clearly reflect and well established that
the Learned Magistrate, failed to take affidavit containing the entire facts
mentioned in Section 14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, as the
Learned Magistrate stated in the said Order dated 21-01-2025 “At this stage,
one affidavit is filed by the petitioner bank through it’s authorized
representative, whereby the petitioner bank affirms that no stay order is in
operation from any corner in respect of this proceeding u/s 14 of SARFAESI Act.
Let same be made part of the record”. It is crystal clear that no affidavit
mentioning the facts in terms of Section
14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, has ever been came before the
Learned Magistrate and has the same ever considered. The Learned Magistrate
violate the provision of law while dealing with the application under Section
14 of SARFAESI ACT 2002, since the affidavit in terms of Section 14(1)(b)(i) to
14(1)(b)(ix) of SARFAESI Act 2002, has never been asked for by the learned
Magistrate from the respondent bank therefore no consideration on the nine
point checklists has ever been taken on record;
XXI. FOR THAT
it is requirement of Section 14 of SARFAESI Act that the Authorized Officer of
the Respondent Bank has to file affidavit containing therein facts mentioned in
Section 14(1)(b)(i) to 14(1)(b)(ix) of SARFAESI Act 2002, and in absence of
such affidavit no application under Section 14 of SARFAESI Act dealt with in
any manner, whatsoever.
XXII. FOR THAT
the said Order dated 21-01-2025, did not speak about the date of sanction of
the financial assistance, the Loan Account Number or the Contract number by
which such purported financial assistance has ever been given by the respondent
bank to the petitioner. It is depicted in the said purported order that the
financial assistance to the tune of Rs. 17,08,96,461/- was sanctioned as loan
to the petitioner, which is not correct statements, as observed by the Learned
Magistrate;
XXIII.
FOR
THAT
the said Order dated 21-01-2025, did not speak about the service of the Demand
Notice under Section 13(2) of the SARFAESI Act 2002, has ever been served on
the Petitioner by the Respondent Bank. Nothing found about the Postal Receipts,
A/D Card returned, or the Postal Track Reports has ever been placed by the
respondent bank to show the sufficient services of the Demand Notice on the
Petitioner. This is also not placed on the record that the demand notice under
section 13(2) of SARFAESI Act 2002, has ever been made published in the News
Papers widely circulated, and therefore there was an occasion has arise that
the Petitioner herein was well in the receipt of the demand notice. Therefore the
said Order dated 21-01-2025, has not given any satisfaction on the due services
of the said demand notice under Section 13(2) of SARFAESI Act 2002, upon the
Borrower;
XXIV.
FOR
THAT
the said Order dated 21-01-2025, did not say that the Authorized Officer has ever
tendered any Original documents before the Learned Magistrate, for verification
with copies on record. Such documents are Loan Sanction Memorandum, Loan
Agreements, Title Deeds of Mortgages Property, Notice given under Section 13(2)
of SARFAESI Act to Borrower, postal receipts, Paper Publication etc.;
XXV. FOR THAT
while the respondent bank has resorted to the remedy under Section 13(4) of
SARFAESI Act 2002, therefore the respondent bank could not directly invoke
Section 14 of the SARFAESI Act 2002, while the measures taken under Section
13(4) of SARFAESI Act is under challenge before the Tribunal;
XXVI.
FOR
THAT
the delegation of the authority of the Learned Magistrate has limitations,
under the provisions of Section 14(1)(a) of the SARFAESI Act 2002. The Learned
Magistrate cannot delegate such power to a Head Clerk or similar position
unless authorized by legislative amendments of the prescribed provisions.
Therefore the Learned Additional Chief Judicial Magistrate does not have the
authority to directly authorize a Head Clerk to take possession of an immovable
property under Section 14 of the SARFAESI Act 2002. The power lies solely with
the Learned Magistrate, who can either take possession himself or delegate the
task to an appropriate officer within his court, but not to a Head Clerk;
XXVII.
FOR
THAT
the Act 2002 does not explicitly mandate serving a copy of the order passed
under this section to the borrower. However, judicial precedents have addressed
the importance of notifying the borrower to uphold principles of natural
justice;
XXVIII.
FOR
THAT
the impugned Order dated 21-01-2025, described the schedule of the property as
Equitable mortgaged of Industrial Land at Nawpala, P.S. Bagnan, Block
–Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303, in the
name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. Equitable mortgaged of Factory Shed/ Boundary at Nawpala, P.S. Bagnan,
Block –Bagnan-II under Sarat Chandra Gram Panchayat, Dist – Howrah, Pin 711303,
in the name of Mr. JAYANTA CHOWDHURY, S/O. Ajay Chowdhury, RS Plot 482, 486, 504, 555, 544, 542, 543, J.L. No.
25. Which does not contain the (i) identification of property, (ii) boundaries
(butted & bounded), (iii) Property Dimensions being measurement, & (iv)
Landmark being nearby of the property. Therefore the impugned order suffered
with inherent procedural integrity and do not prevent potential legal or
operational issues in taking the possession of the schedule property, which
does not have any clarity in identification, so far;
XXIX.
FOR
THAT
the impugned order dated 21-01-2025, contained vague or generic directions,
such as authorizing the secured creditor to “break open” locks without
specifically addressing legal safeguards and the nature of the property in
question. This is because such blanket permissions could lead to misuse,
procedural irregularities, and potential violation of law. The impugned order
created ambiguity or affect properties not related to the secured debt;
XXX. FOR THAT
the impugned order should direct possession of the property through lawful
means and under proper supervision, ensuring no damage or undue force is
applied. The impugned order should mandate adherence to tenancy laws,
third-party rights, and other relevant regulations;
XXXI.
FOR
THAT
from perusal of the operative portion of the order of the Ld. Magistrate, it
transpire that the Learned Magistrate has not recorded anything about the nine
points affidavit ever submitted by the said secured creditor, and the same has
ever been persuaded to his satisfaction. Next the Learned Magistrate has
permitted the representative of the Secured Creditor to take physical
possession of the immovable property of the borrower, and the description of
the schedule property does not contained the measurement of the plot of land,
boundaries of the property is not there in the schedule, no landmark even given
as nearby of the alleged property, and to very next the Learned Magistrate
directed to the Head Clerk, ACJM Court, Uluberia, Howrah to take physical possession of the schedule property
and upon taking such possession, the same shall be handed over to the
Authorized Officer of the Secured Creditor. If the scheduled property is under
lock and key, the secured creditor may break open the same. The Head Clerk,
ACJM Court, Uluberia, Howrah shall be at liberty to seek police help in case he
faces any obstruction in carrying out the order of this court. Since Section 14
of the SARFAESI Act 2002 required the Magistrate to take possession of the
secured assets and documents and to make it over the secured creditor. In the
instant case the Ld. Magistrate did not adhere to section 14 of the SARFAESI
Act 2002, he proceeded mechanically and de hors the power under Section 14 of
the SARFAESI Act 2002, without application of mind and without ascertaining the
factual correctness of the matter;
XXXII.
FOR
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;
XXXIII.
FOR
THAT
the said Complaint Case no. 220 of 2024, being the impugned Criminal
proceedings is manifestly attended with an ulterior motive for wreaking
vengeance on the petitioner with an oblique motive and/ or for an extraneous
purpose and was out and out harassment to the petitioner;
XXXIV. FOR THAT
the enigmatic approach of the respondent bank has created fauxpas to trap him illegally. A nationalized bank is not expected
to get involved in creating such atmosphere which is equivalent to literally extortion.
The Act itself resembles the scheme of vulture accounts more familiar in the
western countries. In the instant case a nationalized bank has failed the
expectation of the billions. As such the Hon’ble Tribunal should school them
accordingly;
XXXV. FOR THAT
the actions of the Respondent Bank is otherwise ex facie bad in law and hence
not maintainable;
45.
That in the given facts and
circumstances, your petitioner seeks to get the direction of the Hon’ble
Tribunal to set aside the impugned Order dated 21-01-2025, passed in Complaint
Case No. 220 of 2024, re-christened as Misc Case No. 29 of 2025, CNR No.
WBHW120023152024, by the Learned Additional Chief Judicial Magistrate,
Uluberia, Howrah (J.O. Code – WB00953), in the interest of administration of
justice.
46.
Unless Orders as prayed for herein are
made the Applicant shall suffer irreparable loss, prejudice and injury thereof.
47.
That this application is made bona fide
and for the end of justice.
It
is therefore, most respectfully prayed as follows:-
a. To
set
aside the impugned Order dated 21-01-2025, passed in Complaint Case No. 220 of
2024, re-christened as Misc Case No. 29 of 2025, CNR No. WBHW120023152024, by
the Learned Additional Chief Judicial Magistrate, Uluberia, Howrah (J.O. Code –
WB00953),
in the interest of administration of Justice;
b. To
restrained 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 impugned
Order dated 21-01-2025, passed in Complaint Case No. 220 of 2024, re-christened
as Misc Case No. 29 of 2025, CNR No. WBHW120023152024, by the Learned Additional
Chief Judicial Magistrate, Uluberia, Howrah (J.O. Code – WB00953); 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 selling the SCHEDULE
OF SECURED ASSETS /PROPERTIES property of the Petitioner;
c. To
restraining the concerned Respondent, its men, agents, servants, officials and
persons claiming under it from giving effect to or executing the said impugned Order
dated 21-01-2025, passed in Complaint Case No. 220 of 2024, re-christened as
Misc Case No. 29 of 2025, CNR No. WBHW120023152024, by the Learned Additional
Chief Judicial Magistrate, Uluberia, Howrah (J.O. Code – WB00953), or any other
notices consequential thereto, till the disposal of the present case;
d. An
appropriate order of status-quo till the disposal of this application;
e. For
an exemplary cost may be imposed upon the Respondent Bank;
f. An
appropriate order prohibiting and or quashing the concerned Respondent from
giving or further effect and / or action in furtherance to impugned
Order dated 21-01-2025, passed in Complaint Case No. 220 of 2024, re-christened
as Misc Case No. 29 of 2025, CNR No. WBHW120023152024, by the Learned
Additional Chief Judicial Magistrate, Uluberia, Howrah (J.O. Code – WB00953),
and also restraining them from taking any further steps under the SARFEASI Act
2002;
g. Such
or other order may kindly also be passed as deemed fit and proper in the fact
and circumstances of this case.
And for this act of kindness your
petitioner as in duty bound shall ever pray.
SCHEDULE OF SECURED
ASSETS /PROPERTIES
Description of immovable property
|
Sl. No. |
Description of the Immovable
Securities |
|
1 |
Hypothecation
of Plant & Machinery in the factory. EMT
of Industrial Land at Nawapala P.S. Bagnan, Block Bagnan II under
Saratchandra Gram Panchayat, District Howrah, Pin – 711303, in the name of
Jayanta Chowdhary. R.S.
Plot – 482, 486, 504, 555, 544, 542, 543, J.L. No. 25 EMT
of factory shed/ boundary at Nawapala P.S. Bagnan, Block Bagnan II under
Saratchandra Gram Panchayat, District Howrah, Pin – 711303, in the name of
Jayanta Chowdhary. R.S.
Plot – 482, 486, 504, 555, 544, 542, 543, J.L. No. 25 |
– VERIFICATION –
I, Jayanta Chowdhury,
Proprietor of M/s. Global Aqua, being the petitioner, hereby solemnly verify
that the contents of paragraphs 1 to _____ 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 ___________’ 2025.
AFFIDAVIT
Affidavit
of Jayanta
Chowdhury, proprietor of M/s. Global Aqua, Son of Late Ajay Chowdhury, 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 deponent 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 facts contained in my accompanying petition / 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
Verification
I,
the above named deponent do hereby solemnly verify that the contents of my
above affidavit are true and correct to my knowledge, and no part of it is
false and nothing material has been concealed therein.
Verified
this _____ day of ______________’ 2025, at the Kolkata.
DEPONENT
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
: _____day of __________’ 2025.
Place
: Kolkata.
N O T A R Y
IN THE DEBTS RECOVERY
TRIBUNAL III, KOLKATA
JEEVAN SUDHA
BUILDING
(8th
FLOOR)
42C, J.L.
NEHRU ROAD
KOLKATA
– 700 071
IA NO.
____________OF 2025
(Diary No.
__________of 2025)
arising out of
SA NO 627 OF 2024
(Diary No. 1210 of
2024)
In the matter of ;
GLOBAL AQUA & ANR.
--- ---- PETITIONERS
– VERSUS –
CANARA BANK & ANR.
----- ---- RESPONDENTS
APPLICATION TO SET
ASIDE ORDER DATED 21/01/2025, PASSED IN
COMPLAINT CASE NO. 220 OF 2024, RE-CHRISTENED AS MISC CASE NO. 29 OF 2025, CNR
NO. WBHW120023152024, (CASE U/S. 14 SARFAESI ACT) BY LEARNED COURT OF
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ULUBERIA, HOWRAH (J.O. CODE – WB 00953);
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
