IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI
PCM
Tower, 2nd Floor, 2 no.Mile, Sevoke Road, Siliguri - 734001.
ORIGINAL APPLICATION
NO. 15 OF 2024
{ Diary no. 396/2023 }
PUNJAB NATIONAL BANK
--- ---- APPLICANT
– VERSUS –
M/S. H. M. ENTERPRISE AND OTHERS
----- ---- RESPONDENTS
WRITTEN STATEMENT OF
THE DEFENDANT NO. 1, & 3 M/S. H. M. ENTERPRISE AND MEHBUB SK.;
The humble petition of the above named
defendant no. 1, & 3, M/s. H.M. Enterprise and Mehbub Sk. respectively,
most respectfully;
Sheweth as under :
1.
That the defendant
no.2, Hasna Bewa is in receipt of the Copy of the Original Application with all
annexures only on 27th day of January’ 2025, in pursuance of the
Order dated 09-01-2025, passed in the above referred Original Application by
the Hon’ble Tribunal. The defendant no. 3, Mehbub Sk. Who is a Son of the
defendant no. 2 Hasna Bewa has duly been informed by The defendant no. 2, Hasna
Bewa who on her bare perusal of the plaint, founds that the contents and
statements of the plaint are false, concocted and based on false summarization.
2.
That the Defendant no. 1, M/s. H.M.
Enterprise shown as a Partnership Firm by the applicant Bank and the Defendant
no. 2, and the defendant no. 3, are shown as a partners of the said Partnership
Firm M/s. H. M. Enterprise, which are the result of the conspiracy of the
applicant Bank Officials, since the Defendant no. 2, and the Defendant no. 3,
have no iota or any knowledge of the Partnership concern, so far. The
Conspiracy of the Bank Officials of the applicant Bank abetted for such M/s.
H.M. Enterprise and shown as a partnership firm, showing inter alia the
defendant No. 2 Hasna Bewsa, and the defendant no. 3 Mehbub Sk as a partner.
The defendants are the rustic persons have no concern or knowledge therefore
they acted as suggested by the Bank Officials of the applicant bank.
3.
That the plaint is not in the
prescribe form as emphasized in Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993. Therefore the plaint is liable to be dismissed inlimnie.
4.
That the plaint is without any accrued
cause of action in presenting the plaint before the Hon’ble Tribunal. Therefore
the plaint is liable to be dismissed inlimnie.
5.
That the present plaint has no lawful
claim. Therefore
the plaint is liable to be dismissed inlimnie.
6.
That the present plaint has not been
placed even by the competent person. Therefore the plaint
is liable to be dismissed inlimnie.
7.
That the plaint has not been placed
ever with the true facts and states of affairs, and the same has not been placed
with clean hands by the alleged applicant, therefore the plaint
is liable to be dismissed inlimnie.
8.
That the present plaint is motivated,
harassed, and without any competency. Therefore the plaint
is liable to be dismissed inlimnie.
9.
That the present plaint is suffering
with the non-joinder & mis-joinder of the necessary parties. Therefore
the plaint is liable to be dismissed inlimnie.
10.
Save what are matters of record and
save what have been specifically dealt by the defendant hereinafter each and
every allegations made in the said plaint is denied and disputed as if the same
has been set out in paragraph seriatim and specifically traversed.
11.
That the defendant hereinafter deny and
dispute each and every allegations made in the said plaint being Original
Application, save and except what are the matter of records.
12.
Before dealing with each and every
paragraph of the said Plaint being Original Application. The defendants state
and submit the following for proper adjudication of the suit;
(i)
That after death of husband of your
defendant no. 2 in 2000, she faced a lot of problems including financial
issues. To run her family she decided to start a business in 2011-12; but she
had no sufficient money. So, She contacted with the then Branch Manager, namely
one Mr. Sunder of United Bank of India, now Punjab National Bank, Nimtatla
Chunakhali Branch, Beharampore, Murshidabad, for getting Loan of Rs. 3,00,000/-
. The said Mr. Sunder sanctioned to start and run her business. She availed of
that Loan and the same was repaid in time.
(ii)
That your defendant no. 2 further
decided to enhance her business for which money was required. So She again
approached the Branch Manager, who ultimately sanctioned further Loan of Rs.
5,00,000/-. She again repaid the said Loan in time. Therefore from time to time
on three occasions She had taken Loan from Bank for doing her business and She
repaid the entire Loan Amount with interest in time. In the mean-time new
manager one Mr. Mahindra came to the Branch of the said Bank. Then the manager
was again changed. One Mr. Koushik took the charge. She approached him for
extending a Loan to the tune of Rs. 7,00,000/- to run smoothly the business of
“Rana Raja Bastralay”. It was given. By that time the manager was again
changed. One Mr. Prakash Shrivastava took the charge.
Photocopy of Certificate of Closure of
the Loan Accounts, are collectively annexed herewith and marked as Annexure – “A”
(iii)
That your defendant no. 2, expressed
her desire to the Branch Manager to start a new business for which a Loan of
Rs. 40,00,000/- was required. But at that time, She had existing three Loan
accounts. To close down the said accounts, a sum approximately of Rs.
12,00,000/- was necessary. The said manager dissuaded to repay the said sum of
Rs. 12,00,000/- from the new Loan of Rs. 40,00,000/- . Your defendant agreed.
He asked her to issue three cheques amounting to total 12 Lakhs. Your defendant
issued the same and the manager assured her of closing the said three loan
accounts. The manger further told your defendant that She would receive a
cheque within a four days, and to contact him immediately after receiving the
same. Accordingly, your defendant received the cheque by post and immediately
contacted him. Subsequently the said Mr. Shrivastava joined RM Office. In-spite
of receiving your defendant’s three cheques the Loan Amount was not repaid. In
the mean-time your defendant contacted with Mr. Arun Babu, the Assistant
Manager and told him the fact. After hearing her trouble he asked the concern
Manager Mr. Shrivastava to whom your defendant submitted three cheques, to
close down the said accounts immediately. Accordingly your defendant’s said
three Loan accounts were closed.
(iv)
That in availing the said Loan, Your
defendant no. 2, had to mortgage the Title Deed of one of her Properties.
In-spite of repeated request and in-spite of the payment of the Loan Amount the
bank authority has not returned the title deed. It is still lying with the
Bank. The said Mr. Shrivastava also told your defendant not to disclose the
fact that He have not been given the Deed to Mr. Sunder, Arun Babu, and Cashier
Khokan Babu.
(v)
That the said Mr. Shrivastav in mean
time came to residence of your defendant no. 2, and asked for Rs. 3,00,000/-
immediately to treat his ailing father and further assured her of depositing
the same in her Loan Account. This is the incident of 2020. Relying his words
and considering his immediate need She gave him Rs. 3 Lakhs by Cash. The said
Mr. Shrivastav after a few days again came to residence of your defendant and
asked for money to save another Customer of the Bank whose account has been
declared as NPA. He immediately opened and transferred Rs. 8 Lakhs in your
defendant’s Account and then took that money for saving the said customer. He
further promised to deposit the previous Rs. 3 Lakhs and present Rs. 8 Lakhs in
your defendant’s Loan Account. But he has not kept his promise. The said Mr.
Shrivastav again came to your defendant’s house and asked for Rs. 2 Lakhs in
lieu of opening a Loan Account having subsidy facility. She paid him Rs.
50,000/- by cash and Rs. 1,50,000/- by cheque. The said Mr. Shrivastav has not
given her certificate against her Gold Bond of 12 gm. Gold for which Rs.
60,000/- was given.
(vi)
That the said Mr. Shrivastav has
neither returned your defendant’s money to the tune of Rs. 15,00,000/- nor has
he deposited the same in her loan account. He also has not handed over her
Mediclaim Certificate for which She paid him Rs. 16,000/-. Beside key of the
hardware shop room of one Mr. Jagadish Mondal has also not been handed over to
her. He took the names of surajit, and sekhar of the bank who would solve her
problem. The said Arun Babu of the bank in two parts took Rs. 14 Lakhs from
your defendant against booking of a flat. Neither any agreement for sale has
been prepared nor money, has been returned. Arun babu has also cheated your
defendant.
(vii)
That surprisingly the Bank authority
which has now been merged with Punjab National Bank has published in “Financial
Express” as well as Bengali vernacular “Ekdin” on their Edition on 10-11-2021,
Possession Notice, in respect of the same property. In one place they have
shown total outstanding as Rs. 69,27,691.87/- and in another place the
outstanding has been shown as Rs. 18,83,206.87/-;
(viii)
That your defendantno. 2, has been
shown as a defaulter but in reality She never have been provided with the
alleged Loan Amount. It is a conspiracy of the Bank Officials, for which She
has been impleaded as a party to the issue.
(ix)
That the bank officials have
sanctioned & withdrawn Rs. 4 Lakhs which has been given for survival during
the pandemic from account no. 0700306740359. Besides your defendant have no
idea about the account number 0700306742490, where Rs. 2.81 lakhs have been
shown. Who has sanctioned and who has taken money, your defendant cannot tell.
(x)
That your defendant no. 2, lodge such
facts with the concerned Police Authority as well as the Bank Authority seeking
thereby investigation into the matter of her complaint and to book the culprit
being bank officials. Your defendant is victim who has been defrauded by bank
officials.
Photocopy of Complaint to Police
Authority and Bank Authority are collectively enclosed herewith and marked as Annexure – “B”.
(xi)
Pursuant to grant of loan facility
vide sanction letter dated 18/11/2017 by the applicant bank to and in favour of
your defendant. The applicant took mortgaged of her one of the property. Full
description of the said ownership property of the defendant particularly
described in a Schedule at the foot hereof and marked as Schedule “A”.
Photocopy
of Sanctioned Letter dated 18/11/2017, is annexed herewith and marked as Annexure – “C”.
(xii)
As per the terms and conditions of the
loan sanctioned by the Applicant, the Defendant is required to repay the loan
in 180 Equated Monthly Installments and the last Installment repayable by the
Defendant is due on much later as of Rs.17,260/- (Rupees Seventeen Thousand and
Two Hundred Sixty ) only, per month. It is pertinent to states that the Loan
Account No. 0700306734640, has been assigned by the respondent.
(xiii)
The Borrower being your defendant no.
2, regularly paid such EMI to the Applicant, and whereas the Borrower paid her
EMI up to the month of May’ 2020. The
said EMI directly taken by the Applicant Bank, through ECS from the account of
the borrower. Borrower did not default in paying her EMI as assigned by the
applicant bank. The Borrower lastly paying her EMI in the month of May’ 2020.
Photocopy
of Bank Statement showing payment of EMI, in respect of Loan Account no. 0700306734640
and 0700250032294, are annexed
herewith and marked as Annexure – “D”.
(xiv)
Further pursuant to grant of loan
facility vide sanction letter dated 01/08/2018, by the applicant bank to and in
favour of the defendant. The applicant took mortgaged of her same property,
which has already been taken while granting the Loan Account No.
0700306734640 to the defendant. Therefore a single property as described in
Schedule “A” has been taken as mortgage by the applicant bank in both the Loan
Accounts i.e. the Loan Account No.
0700306734640 and the Loan Account No. 0700250032294.
Photostat copy of Sanctioned Letter
dated 01-08-2018, is annexed herewith and marked as Annexure – “E”.
(xv)
That
on 24 March 2020,
the Government of India under Prime Minister NarendraModi ordered a
nationwide lockdown for 21 days, limiting movement of the entire 1.3 billion population of India as a preventive measure against
the COVID-19 pandemic in India. It was
ordered after a 14-hour voluntary public curfew on 22 March,
followed by enforcement of a series of regulations in the country's COVID-19
affected regions. The lockdown was placed when the number of confirmed
positive corona virus cases in India was approximately 500. Observers
stated that the lockdown had slowed the growth rate of the pandemic by 6 April to a rate of doubling every six days, and
by 18 April, to a rate of doubling every eight
days. As the end of the first lockdown period approached, state governments and
other advisory committees recommended extending the lockdown. The
governments of Odisha and Punjab extended the
state lockdowns to 1 May. Maharashtra, Karnataka, West Bengal and Telangana followed
suit.
(xvi)
That on 14 April, Prime
minister Narendra Modi extended the nationwide lockdown until 3 May, with a conditional relaxations after 20 April for the regions where the spread had been
contained or was minimal. On 1 May, the Government of India extended the nationwide lockdown
further by two weeks until 17 May. The
Government divided all the districts into three zones based on the spread of
the virus—green, red and orange—with relaxations applied accordingly. On
17 May, the lockdown was further extended till 31 May
by the National Disaster Management Authority.
(xvii)
That on 30
May, it was announced that lockdown restrictions were to be lifted from then
onwards, while the ongoing lockdown would be further extended till 30 June for
only the containment zones. Services would be resumed in a phased manner
starting from 8 June. It was termed as "Unlock 1.0". Modi later
clarified that the lockdown phase in the country was over and that 'unlock' had
already begun.
(xviii)
That the
second phase of unlock, Unlock 2.0, was announced for the period of 1 to 31
July, with more ease in restrictions. Unlock 3.0 was announced for August.
Similarly, Unlock 4.0 was announced for September and Unlock 5.0 for the
month of October. In the same way, Unlock 6.0 was announced for the month
of November, Unlock 7.0 was announced for the month of December, Unlock
8.0 was announced for the month of January, and Unlock 9.0 was announced for
the month of February.
(xix)
That in the
month of April’ 2021, the respondent bank through its Letter dated 09-04-2021,
sent Recovery notice stating inter alia your borrower as a defaulter and call
upon your applicant for payment of Rs. 18,83,208/- ( Rupees Eighteen Lakhs and
Eighty Three Thousand and Two hundred eight ) only, categorize such Loan
account as NPA ( Nonperforming account) on 31-03-2021, and thereby threatened
to initiate Legal proceeding against your applicant.
Photocopy
of Recovery recall notice dated 09-04-2021, in respect of Loan Account No. Loan
Account no. 0700306734640 and 0700250032294, are annexed herewith and marked as Annexure – “F”.
(xx)
That the
Reserve Bank of India on 27-03-2020, issued Statement of Development and
Regulatory Policies where inter alia certain regulatory measures were announced
to mitigate the burden of debt servicing brought about by disruptions on
account of COVID-19 pandemic and to ensure the continuity of financial assertions,
which extended time and again, by the RBI.
Photostat
copy of RBI circular dated 27-03-2020, and the Regulatory Statement, are
collectively annexed herewith and marked as Annexure – “G”.
(xxi)
That the Reserve Bank of India has
issued such notification for the moratorium period at first for the three
months commencing from the month of March’ 2020, April’ 2020, and May’ 2020,
and consequently for another three months i.e. June’ 2020, July’ 2020, and
August’ 2020. Thus a total period of Six months has been given as moratorium
period were announced to mitigate the burden of debt
servicing brought about by disruptions on account of COVID-19 pandemic and to
ensure the continuity of financial assertions, which extended time and again,
by the RBI.
(xxii)
The Defendant astonished while She received a notice on or
about 05/11/2021 at the door of her residence wherein it was purportedly
contended that one alleged notice dated 14-09-2021 by the Applicant Bank
purportedly under sub-Section 2 of Section 13 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Securities Interest Act;
2002, calling upon the Applicant to discharge in full a total sum of
Rs.18,83,206.87/- ( Rupees Eighteen Lakhs and Eighty Three Thousand and Two
hundred six and paise eighty seven ) only, was allegedly served upon the
Defendant, and in one another notice the applicant purportedly calling upon the
defendant to discharge in full a total sum of Rs. 69,27,691.87/- (Rupees Sixty
Nine Lakhs and Twenty Seven Thousand and Six Hundred Ninety One and paise
eighty seven) only, was allegedly served upon the defendant by the applicant
bank.
(xxiii) The
said astonishing notice received by the defendant on at her outer door further
alleged that since the defendant failed to repay the amount mentioned in the
said alleged notice purportedly under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Securities Interest Act;
2002, the Applicant Bank is taking symbolic possession of the property, by
pasting a notice being Appendix –IV ( See Rule 8 (1) ) Possession Notice ( for
immovable property ), being notice of Symbolic Possession under the provision
of Section 13 (4) of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act’ 2002, on 05-11-2021.
(xxiv)
The Defendant immediately rushed to
the Applicant Bank enquiring about the matter but the Bank Officials showed their
inability to satisfy the Defendant.
(xxv)
The Defendant states that the
Applicant on the one hand is making request after request by its various
letters addressed to the defendant requesting him to clear the EMI but on the
other hand served the said astonishing and purported notice of symbolic
possession on 05-11-2021 which is not at all tenable under the law.
(xxvi)
Furthermore interestingly no alleged
notice under Section 13(2) of SARFAESI Act’ 2002 was ever been served by the
Applicant. It is pertinent to states that the defendant is not in receipt of
any communication regarding NPA of such Loan Account, neither she is in receipt
of any statutory Notice under Section 13 (2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act’
2002, and whereas all of a sudden on 05-11-2021, the Authorised Officer of the
applicant visited the premises and pasted a Possession Notice ( for immovable
property ) under Appendix IV ( See rule 8 (1) ) of the Security Interest (
Enforcement ) Rules’ 2002, at the premises being Mouza : Jan-Mahammadpur, J.L.
no. 112, L.R. Khatian No. 2417, L.R. Dag no. 2503, measuring 3.50 decimal
along-with construction of Two storied building standing thereon within the
limits of Hatinagar Gram Panchayat, Post Office – Ghorsala, Police Station –
Raghunathganj, District – Murshidabad, Pin - 742102, West Bengal, in connection
with the Loan Account Number 0700306734640, and Loan Account no. 0700250032294,
being measures referred to in sub-section (4) of section 13 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act’ 2002, taken by the secured creditor ( Punjab National
Bank ) by its authorized officer on 05-11-2021. Consequently the Applicant Bank
published in News Paper on 10-11-2021 in Bengali vernacular “Ekdin” and in
“Financial Express”.
Photostat
copy of Possession notice dated 05/11/2021, and Publication dated 10-11-2021 in
Bengali vernacular “Ekdin” and in “Financial Express” are collectively annexed
herewith and marked as Annexure – “H”.
(xxvii)
In absence of any communication about
NPA of the Loan Account and Statutory Notice under the provisions of Section
13(2) of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act’ 2002, the applicant purportedly proceeded
under section 13(4) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act’ 2002, by pasting a Possession
Notice dated 05-11-2021 ( for immovable property ) under Appendix IV ( See rule
8 (1) ) of the Security Interest ( Enforcement ) Rules’ 2002, at the premises
being Mouza : Jan-Mahammadpur, J.L. no. 112, L.R. Khatian No. 2417, L.R. Dag
no. 2503, measuring 3.50 decimal along with construction of Two storied building
standing thereon within the limits of Hatinagar Gram Panchayat, Post Office –
Ghorsala, Police Station – Raghunathganj, District – Murshidabad, Pin - 742102,
West Bengal, in connection with the Loan Account Number 0700306734640, and the
Loan Account Number 0700250032294.
(xxviii)
If at all the service of the alleged
notice under Section 13(2) of SARFAESI Act as falsely claimed by the Applicant
is held to be true still the admitted service of various letters, emails, etc.,
of the Applicant upon the Defendant requesting her to clear and make payment of
outstanding EMI amount to waiver of said alleged statutory notice under Section
13(2) of SARFAESI Act’ 2002.
(xxix) That
the Defendant states that inasmuch as the said account for the loan of the
Defendant was or is not within the category of Non-Performing Asset and as such
the alleged demand notice of the Applicant, if any, dated 09-04-2021 allegedly
served upon the Defendant is bad in law and have no force at all.
(xxx)
In-spite of such unenforceable and bad
notice allegedly served upon the Defendant and further in-spite of the said
loan account of the Defendant being not under the category of Non- Performing
Asset, the Applicant in collusion and connivances with its officers and knowing
fully, well that the Defendant is under moratorium given by RBI intends to
translate the said notice and with such ulterior and bad intention and in
furtherance of the said purported notice dated 05-11-2021, served upon the
Defendant under the disguise of the enforcement of course of law which is not
at all tenable under the law.
(xxxi) That
due to arbitrary act on the part of the Bank, the Defendant made to suffer and
is likely to be seriously prejudiced as a cloud has been casted upon her right,
title and interest as owner of the Schedule
“A” property and it was necessary that the said notices be quashed. The
defendant lodged SARFAESI application being SA no. 26 of 2022, wherein
challenging applicant bank notice for recovery of the loan facility bearing
Account No. 0700250032294, and Notice under Section 13(4) of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act’ 2002, being Possession notice under rule 8(1) dated 05-11-2021, and
another application being SA no. 27 of 2022, wherein challenging applicant bank
notice for recovery of the loan facility bearing Account No. 0700306734640, and
Notice under Section 13(4) of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act’ 2002, being
Possession notice under rule 8(1) dated 05-11-2021, before the Hon’ble DRT
Siliguri.
(xxxii)
That the said SARFAESI applications
has been decided by the Hon’ble DRT Siliguri by way of a common order &
Judgment dated 29-07-2024, passed in SA no. 26 of 2022 and SA no. 27 of 2022,
wherein it was hold by the Hon’ble DRT Siliguri that “without serving 13(2)
notice to the applicant 13(4) notice has been issued and thus both the S.As are
hereby allowed and 13(4) possession notice dated 05-11-2021 is hereby set aside
with liberty to the secured creditor to initiate SARFAESI measures afresh under
the SARFAESI Act and the rules framed there under for recovery of the dues
amount”.
Photostat Copy of the Order &
Judgment 29-07-2024, passed in SA no. 26 of 2022 and SA no. 27 of 2022, by the
Hon’ble DRT Siliguri, is annexed herewith and marked as Annexure – “I”.
(xxxiii)
That therefore the alleged notice
under Section 13(2) of the SARFAESI Act 2002, given by the applicant bank has
been set aside. The two notices under Section 13(2) of the SARFAESI Act 2002, as
demand notice dated 02-07-2021, and 14-09-2021, has been set aside by the
Hon’ble DRT Siliguri. Therefore the said alleged Demand notices under Section
13(2) of the SARFAESI Act 2002 have no force at all in pursuing any demand on
the Defendant, herein.
13.
Without waiving any of the aforesaid
Objections and Facts and fully relying thereupon and without prejudice to the
same. Now, the defendant deals with the specific paragraphs of the said Plaint
being Original Application, in seriatim as hereunder.
14.
The Plaint being Original Application
is not maintainable either in facts or in its present form and the said Plaint
is speculative, harassing, motivated, concocted and baseless as is barred by
the Principles of Law and hence same is liable to be rejected at once, with
cost.
15.
Save and except the statements made in the
said Plaint which are matter of record, the defendant denies each and every
allegations contained in the said Plaint being Original Application and calls
upon the applicant bank to strict proof of the said allegations, in terms of
the facts as well as in terms of the Law.
16.
That with references to the statements
made in paragraph nos. 1, 2, 3, 4, and 5, of the application, this Defendant
specifically and categorically denies and disputes the contents and purport of
those paragraphs, and put to the applicant bank to the strict proof thereof.
The Defendant’s repeat and reiterate the statements made in paragraph no.11,
herein above. The Defendant says that M/s. H.M. Enterprise was a creation of
the Bank Officials, as the same has not ever been intended by the Defendant as
she was not in any iota about the partnership firm and the business in
partnership, whatsoever. However, the said M/s. H.M. Enterprise is an
unregistered partnership firm, which have no locus to stand for realization of
any claim whatsoever in pursuance of the Partnership Act, 1932. The Defendant
no. 3 is a son of the defendant no. 2, herein. The provisions under Section 69 of the Indian Partnership Act, 1932,
an unregistered firm cannot sue to enforce a right arising from a contract
subsequently the financial institution cannot sue to enforce a right arising
from a contract with unregistered partnership firm. The defendant has been
shown as a defaulter but in reality She never have been provided with the
alleged Loan Amount. It is a conspiracy of the Bank Officials, for which She
has been impleaded as a party to the issue. if a demand notice under Section 13(2) of the
SARFAESI Act, 2002 is set
aside by the Hon’ble Debt Recovery Tribunal (DRT), the bank
cannot rely on it as the foundation for filing an Original Application (OA) under
Section 19 of the Recovery of
Debts and Bankruptcy Act, 1993 (RDB Act). It weakens the
foundation of any subsequent claim for recovery under Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993 (RDB Act). If the DRT sets aside this
notice, it usually implies that the bank’s claim of default or the procedure
followed was flawed — whether due to non-compliance with legal requirements or
other procedural defects. When a bank files an Original Application (OA) under Section 19 of the
RDB Act for recovery of dues, it must be backed by valid proof of debt/default.
If the demand notice under SARFAESI has already been quashed, it calls into
question the very basis of the bank's claim, especially if the same
debt/default is being relied upon in both proceedings. Your defendant has been
shown as a defaulter but in reality she never has been provided with the
alleged Loan Amount. It is a conspiracy of the Bank Officials, for which she
has been impleaded as a party to the issue. While the borrower never received the loan, the
fundamental requirement of a “debt” under both SARFAESI (Section 2(1)(o)) and the RDB Act (Section 2(g)) is not
satisfied. The bank officials conspired to falsely show loan disbursal, it amounts to fraud under Section 17 of the Indian Contract Act, 1872
and criminal misconduct
under the Prevention
of Corruption Act, 1988.
Therefore it challenges the very existence of the debt allegedly shown
by the applicant bank. The enigmatic approach of the applicant
bank has created fauxpas to trap her
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. Nothing has ever been
placed to show that any communication regarding NPA and demand has ever been served by the applicant bank on the
defendant on any occasion prior to placing the present Original Application
before the Hon’ble DRT. The applicant bank is not able to place on record the
Actual Debt ever against the defendant. The erroneous application has been
lodged by the applicant bank against the defendant. Therefore, in the given
facts and circumstances, the applicant bank is not entitled get any relief as
prayed for ever before the Hon’ble DRT.
17.
That the defendant states and submits
that an
applicant bank cannot seek a declaration against the borrower in an Original
Application (OA) under Section 19 of the Recovery of Debts and Bankruptcy Act,
1993 (RDB Act). The Section 19 of the RDB Act allows a financial institution to file
an OA before the Debt
Recovery Tribunal (DRT) for the recovery of a "debt".
Declaratory reliefs
(such as declaring a person as a defaulter, determining rights over a property,
or any status-related relief) fall under civil
jurisdiction, which the DRT does not possess. In Punjab National Bank v. O.C. Krishnan &
Ors. (2001), the Supreme Court ruled that the RDB Act aims to
expedite recovery,
not to grant declaratory or civil reliefs.
18.
That the defendant states and submits
that a Chief Manager of a bank cannot file an Original Application (OA) under
Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) without
proving his authority through a valid competency certificate or authorization.
Under Section 19 of the RDB Act,
an application for debt recovery can be filed only by a duly authorized person on
behalf of the financial institution. The Chief Manager
or any officer must demonstrate authorization either through (a) Power of Attorney (PoA) issued by the
bank, (b) Board Resolution specifically authorizing the officer to file
the case, and /or (c) delegation of powers under the bank’s internal
regulations. Since noting has ever been placed on record or ever stated
anywhere in the pleading by the applicant bank, the present
Original Application (OA) under Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993 (RDB Act) is liable to be dismissed in limnie.
19.
That the present OA has been filed by
the Applicant Bank through its Chief Manager, purportedly acting on behalf of
the bank. However, the said Chief Manager has neither placed any valid
authorization, Power of Attorney, or Board Resolution authorizing him to file
the present OA on behalf of the bank.
20.
That it is a settled principle of law
that a suit, claim, or OA filed by a person who has no authority to represent
the institution is not maintainable in law and is liable to be rejected at the
threshold.
21.
That the Applicant Bank has failed to submit any valid authorization
or competency certificate, either at the time of filing the OA or in the
evidence presented before this Hon’ble Tribunal, which renders the application
legally untenable.
22.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
proper authorization is null and void ab initio. Reliance is placed
on:
a)
United
Bank of India v. Naresh Kumar & Ors. (1996) SCC 6 660 –
The Hon’ble Supreme Court held that banks must provide proper authorization for
officers filing suits on their behalf.
b)
M/s
Nibro Limited v. National Insurance Co. Ltd. (1991) AIR DELHI 25 – The Delhi High Court ruled that an officer must be
specifically empowered to institute a suit; otherwise, the plaint is liable to
be rejected.
c) ICICI Bank Ltd. v. Official
Liquidator (2010) 10 SCC
1 – The Hon’ble Supreme Court reiterated that banks must provide
appropriate authority documents for initiating legal proceedings.
23.
That
in the absence of any valid authorization, the OA filed by the Applicant Bank
is not maintainable and is liable to be dismissed in limine.
24.
That
Order 7, Rule 11 of the CPC provides that a plaint shall be rejected where it
does not disclose a cause of action or is barred by any law. In the present
case, the lack of authorization renders the OA barred in law and liable for
rejection.
25.
That
the Applicant Bank has failed
to disclose a valid cause of action under Section 19 of the RDB Act, 1993,
for the following reasons:
a)
The
OA is based on a demand
notice under Section 13(2) of the SARFAESI Act, 2002, which has been set aside
vide Order & Judgment dated 29/07/2024, passed in SA no. 26 of 2022 &
SA no. 27 of 2022, making the claim legally unsustainable.
b)
The
Applicant Bank has failed to establish any fresh cause of action arising
after the rejection of the said demand notice dated 02/07/2021, under Section
13(2) of the SARFAESI Act 2002.
c)
The
OA does not establish a legally enforceable claim as required under Section 19 of the RDB Act,
and therefore, lacks a valid cause of action.
26.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
Cause of Action is null and void ab initio. Reliance is placed
on:
Mardia Chemicals Ltd. v. Union
of India (2004)
SCC 4 311 – The Supreme Court ruled
that a defective demand notice cannot be the basis of a recovery claim
before the DRT.
27.
That
in the absence of any valid Cause of Action, the OA filed by the Applicant Bank
is not maintainable and is liable to be dismissed in limine in terms of Order
7, Rule 11(a) of CPC.
28.
That
further, the relief sought by the Applicant Bank in the present OA is prohibited by law,
as under Section 19 of the RDB Act, 1993, the Tribunal can only issue a Recovery Certificate
and not a decree
as prayed for by the Bank. The relief sought is therefore legally untenable,
and the OA is liable to be rejected under Order 7, Rule 11(d) CPC.
29.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
Cause of Action is null and void ab initio. Reliance is placed
on:
- Punjab
National Bank v. O.C. Krishnan (2001)
SCC 6 569
– The Supreme Court clarified that DRTs issue Recovery Certificates
rather than decrees.
- Allahabad
Bank v. Canara Bank (2000) SCC 4 406
– The Supreme Court explained that DRT is a specialized tribunal
and does not function like a civil court; its final adjudication results
in a Recovery Certificate.
- ICICI
Bank Ltd. v. Official Liquidator (2010)
10 SCC 1 –
The Court reiterated that DRTs do not issue civil decrees but operate
under a statutory recovery mechanism.
30.
That
pertinently if a bank prays for a decree instead of a Recovery
Certificate, the relief sought is barred by law, making the Original
Application (OA) liable to be rejected under Order 7, Rule 11(d) of CPC.
31.
That
in addition, under Section
24 of the RDB Act, 1993, the provisions of the Limitation Act, 1963,
are applicable to proceedings before the Debt Recovery Tribunal. The OA has
been filed beyond the limitation period prescribed under:
Article 137 of the Limitation
Act, 1963
– which provides a limitation period of three
(3) years from the date the debt becomes due and payable.
If applicant bank fails to file
an OA within 3 years from the date of default, it is liable to be
rejected under Section 24 of the RDB Act 1993.
32.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated beyond the
limitation prescribed under the Law is null and void ab initio. Reliance
is placed on:
Syndicate Bank v.
Channaveerappa Beleri (2006) SCC 11 506
– The Supreme Court held that the provisions of the Limitation Act apply to DRT
proceedings, and a time-barred claim cannot be entertained.
33.
That
in the present case, the OA has been filed beyond the prescribed limitation
period, making the claim barred
by law and liable for rejection under Order 7, Rule 11(d) CPC.
34.
That the relief sought for in the said
Original Application (OA) under Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993 (RDB Act) are wholly without jurisdiction and the same
should be negated by this Hon’ble Tribunal.
35.
That the relief claimed by the
applicant bank is unlawful and since such claimed has not been based on the
lawful manner and calculation of interest and other charges if any. The
purported claim cannot be said to placed by the applicant bank in its clean
hand.
36.
That in the given facts and
circumstances the present Original Application (OA) under Section 19 of the
Recovery of Debts and Bankruptcy Act, 1993 (RDB Act), is not sustainable under
the Law and therefore the defendant herein seeks dismissal of the suit inlimnie.
37.
There is no merit in the said Original
Application (OA) under Section 19 of the Recovery of Debts and Bankruptcy Act,
1993 (RDB Act).
38.
That unless the Hon’ble Tribunal
dismissed the above referred Original Application (OA) under Section 19 of the Recovery
of Debts and Bankruptcy Act, 1993 (RDB Act), the defendant herein will highly
prejudice and suffer with irreparable loss and injury, thereof.
39.
That this application being Written
Statement is made bonafide and in the interest of administration of Justice.
It
is therefore, most respectfully prayed as follows:-
a. To accept
this Written Statement of the defendant number 1 & 3, herein M/s. H.M.
Enterprise and Mehbub Sk., and to dismissed the present Original Application
(OA) under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (RDB
Act), being O.A. no. 15 of 2024, in the interest of administration of Justice;
b.
Declare that the relief sought by the
Applicant Bank is barred
by law and cannot be granted under Section 19 of the RDB Act,
1993;
c.
Declare that the OA is barred by limitation under
Section 24 of the RDB Act, 1993, read with the Limitation Act,
1963;
d.
Declare that the OA lacks a valid cause of action
under Section 19
of the RDB Act, 1993;
e.
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 “A” ABOVE
REFERRED TO
Description
of immovable property;
ALL
that piece and parcel of the immovable property being at Mouza :
Jan-Mahammadpur, J.L. no. 112, L.R. Khatian No. 2417, L.R. Dag no. 2503,
measuring 3.50 decimal alongwith construction of Two storied building standing
thereon within the limits of Hatinagar Gram Panchayat, Post Office – Ghorsala,
Police Station – Raghunathganj, District – Murshidabad, Pin - 742102, West
Bengal, bounded by :
On
the North : Road
On the South : House of Rasimuddin Mondal,
On
the East : House of Marjina
Bibi,
On
the West : Bapi Sk.
AFFIDAVIT
I,
Mehbub
Sk., Son of Late Janaruddin Seikh, aged about 41 years, by faith Muslim, by
Occupation unemployed, residing at premises being Village – Ustia, Post Office
– Muktinagar, Police Station – Berahampore, District – Murshidabad, Pin –
742102, West Bengal,
do here by solemnly affirm and declare as follows:-
1.
That
I am the Defendant no. 3 in the above Suit and I am well acquainted with the
facts of the suit and I am competent to swear this Affidavit.
2.
That
I am the alleged Partner of the defendant no. 1 M/s. H.M. Enterprise and
competent to swear this affidavit.
3.
That
the statements made above in paragraphs are true to my knowledge as derived
from the records.
That
the rest are my humble submissions to the Hon’ble Debt Recovery Tribunal and I
sign this Affidavit on the _________February’ 2025.
DEPONENT
Identified
by me
Advocate
Prepared
in my Chamber,
Advocate.
Dated
: _____February’ 2025.
Place
: Kolkata. N O T A R Y
IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI
PCM Tower, 2nd Floor, 2 no.Mile, Sevoke
Road, Siliguri - 734001.
ORIGINAL APPLICATION
NO. 15 OF 2024
{ Diary no. 396/2023
}
In the matter of ;
PUNJAB NATIONAL BANK
--- ---- APPLICANT
– VERSUS –
M/S. H.M. ENTERPRISE & ORS.
----- ---- DEFENDANTS
WRITTEN STATEMENT;
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
