Allowed

Tangudu Rahul v. State Bank of India and Ors.

DRAT18 Jul 2022REGULAR APPEAL/204/2017

Case brief

AI extract

What is this about?

This appeal challenged a DRT order dismissing an application by a bank to enforce SARFAESI against properties purchased by the appellant. The Tribunal allowed the appeal, setting aside the impugned order due to the absence of recorded findings on crucial fraud allegations and directing the lower court to proceed in accordance with law.

What did the court decide?

Appeal allowed; impugned order set aside; Learned DRT directed to proceed with SARFAESI application in accordance with law.

Tangudu Rahul versus State Bank of India and Ors. — Execution and Attachment | DRAT (2022)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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(App No. 204 of 2017)

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(Arising out of MA./684 of 2017 in DRT-Cuttack)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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18.07.2022 Tangudu Rahul … Appellant -VsState Bank of India … Respondents

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Mr. N. Srinivas, Learned Counsel for the Appellant.

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Mr. S. K. Sinha, Learned Counsel for Respondent.

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THE APPELLATE TRIBUNAL :

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Instant Appeal is preferred against the order dated

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08/09/2017 passed by the Learned DRT, Cuttack in MA No.684 of 2017 (arising out of S.A. No.54 of 2015) whereby the Misc.Application filed by the SARFAESI Applicant was dismissed.

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I have heard the learned counsel for the Appellant as well as the Respondents No. 1 & 2. Respondents No.3 to 12 are not present. Record shows that earlier Respondent No.3, 4 & 5, who were SARFAESI Applicants, appeared through Learned Counsel Mr. Avik Sarkar.

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Learned counsel for the Appellant submits that the appellant has purchased one disputed property from the borrower. Said property was kept with the Respondents No.1 & 2 as a guarantee for loan. Property was released by the bank in favour of the borrowers. Thereafter appellant purchased the property from the Respondent No.4 whereby other properties also mortgaged including the property in dispute with the Respondents No.1 & 2 Bank. The loan amount was not paid and Bank proceeded against all the borrower and co-borrower to enforce the mortgaged properties. Subsequently, cost of the property in dispute was deposited and this property was released by the bank which was subsequently purchased by the appellant from the borrower, sale proceed of Rs.35.50 lacs were also deposited with the Bank.

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S.A. No.54 of 2015 was filed by the Respondents No.3, 4 & 5 alleging that property in dispute which was purchased by the appellant including other properties are the subject matter of the loan which should be released from these properties also.

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During pendency of the proceedings reply was filed by the Appellant to the effect that property in question was

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released by the bank after depositing of amount of Rs.35.50 lacs with the Bank. Thereafter appellant purchased this property, hence this property was already released by the Bank and could not be a subject matter of any loan. The application was moved by the SARFAESI Applicant alleging that all transactions are fraudulent and the appellant should appear before the Learned DRT along with letter dated 21/03/2015. It is submitted that fraudulent activity need to be cross examined. Learned DRT passed impugned order without recording any findings that the appellant should be appeared before Learned DRT for examination along with letter dated 07/06/2015.

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The entire record shows and it is admitted by the Bank that disputed property was released by the Bank in favour of the Respondent No.4 who sold it to the appellant. It is further on record that a Civil Suit No.261 of 2015 was filed by the Respondent No.4, Sri Pawan Kr. Sahu against the Bank and others which was dismissed for default on 02/11/2021. As far as impugned order is concerned, admittedly the property in question was initially mortgaged in favour of the bank, however, bank has released the same on deposit of an amount of Rs.35.50 lac in favour of the

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Respondent No.4, Sri Pawan kr. Sahu. Thereafter, Respondent No.4 sold it to the Appellant. However, no such finding has been recorded by the Learned DRT.

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Hence order could not sustain. Accordingly appeal is liable to be allowed.

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Order

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Accordingly the Appeal, being Appeal No 204 of 2017, is allowed and order dated 8/9/2017 passed by the Learned DRT, Cuttack, is set aside.

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Learned DRT is directed to proceed with the SARFAESI Application in accordance with law.

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File be consigned to the record room.

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Copy of this order be supplied to the Appellant and Respondent and copy also be forwarded to the concerned DRT.

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Copy of the judgment/final order be uploaded in the Tribunal’s website.

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(Order dictated signed dated and pronounced in the open court)

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(Anil Kumar Srivastava,J)

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Chairperson

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Dated: 18^th July, 2022 15/rc

Tangudu Rahul v. State Bank of India and Ors.

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Tangudu Rahul v. State Bank of India and Ors.

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