Remanded

B Shiva Shankar v. Bank of India

DRAT5 Jul 2022REGULAR APPEAL/53/2019

Case brief

AI extract

What is this about?

DRT allowed the appeal and remanded the matter to the trial court for fresh disposal. The tribunal directed the trial court to decide a pending amendment application regarding sale notice and objection within four months and restrains the bank from confirming the auction sale pending disposal of the SARFAESI application.

What did the court decide?

Appeal allowed. Matter remanded to DRT for fresh disposal within four months. Sale not to be confirmed pending disposal of SARFAESI application.

B Shiva Shankar versus Bank of India — Banking and Recovery | DRAT (2022)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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(Appeal No. 53 of 2019 IA No.85 of 2021) (Arising out of S.A. 104 of 2018 in DRT-1, Hydrabad)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

05.07.2022

B. Shiva Shankar.

… Appellant

-VsBank of India

… Respondents Mr. N. Srinivas Learned Counsel for Appellant.

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Mr. Dipankar Das Learned Counsel for Respondent.

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THE APPELLATE TRIBUNAL :

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Instant Appeal is filed against the judgment order dated 23/04/2019 in S.A No.104 of 2018 passed by Learned DRT-1, Hyderabad. The S.A. was dismissed on 23/04/2019. At the very outset it is relevant to mentioned that an Application under section 17 of SARFAESI Act, was filed by the Appellant challenging the Demand Notice under Section 13(2) and possession notice under Section 13(4) of the SARFAESI Act coupled with violation of rule 8(1) 8(2) of Security Interest Enforcement Rule,2002. Further there is a challenge about Rule 8(6) (7) and rule 9(1) of the Rules.

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Objections were filed by the Respondent before Learned DRT. Learned DRT recorded a finding that all the actions taken by the Bank are in accordance with law. Accordingly S.A. was dismissed.

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During the course of the hearing the appeal, following order was passed on 28/04/2022 for compliance.

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“ During the course of argument, Learned Counsel for the Appellant prays for, and is granted, two weeks time for filing supplementary affidavit on the point as to whether the amendment

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application moved before the Learned Tribunal Was disposed of or not and if allowed, whether the amendment was carried out in the original S.A. before the Learned DRT; if so, whether opportunity of filing objection was given to the Bank or not; if so, whether Bank has filed any written statement against the amended petition before the Learned DRT.”

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In compliance of the order appellant has file supplementary affidavit wherein it is admitted that an amendment application was move by the appellant before Learned DRT-1, Hyderabad on 11/10/2018. Respondent Bank also filed objection against the amendment application on 11/12/2018. Learned counsel submits that the amendment application was neither allowed nor dismissed by the Learned DRT although factum of issuances of sale notice was considered by the Learned DRT.

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It is borne from the record that sale notice was issued by the Bank. Learned counsel for the Respondent Bank further submitted that sale was conducted but the sale was not confirmed.

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Now sale certificate was also not challenged. This fact was brought before the Learned DRT by moving an amendment application filed by the respondent Bank. Amendment application was filed before final hearing of the S.A. which was well within the jurisdiction of Learned DRT either to allow or dismiss the application before passing the judgment on merit. It was imcumbent upon the Learned Presiding Officer to decide the amendment application deciding the case. Hence in my view, the judgement could not sustain and liable to be set aside with a direction to Learned DRT should decide amendment application on merit and thereafter decide the case afresh after giving opportunity of hearing to parties.

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The auction purchaser being a necessary party should also be brought on record before DRT.

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Respondent No.3 is auction purchaser who was duly served but no one appeared on his behalf.

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Learned DRT is expected to decide the matter within a period of 4 months from the date of the copy of judgment is received by Learned DRT. Since there was an interim order passed by the Learned DRT and the matter has been remanded back for disposal. Respondent Bank shall not confirm the sale till the disposal of SARFAESI Application. However, if any adjournment is sought for by the SARFAESI Applicant, Learned DRT would be at liberty to vacate this interim protection granted to the Applicant.

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ORDER

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Appeal is allowed. Matter is remanded to the Learned DRT to decide it afresh in accordance with direction given in the body of judgment.

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Learned DRT is directed to decide the matter within four months from the date of receipt of copy of judgment.

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Respondent Bank is directed not to confirm the sale till disposal of SARFAESI Application. However, if any adjournment is sought by the appellant Learned DRT would be at liberty to vacate the interim order.

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File be sent to the record room.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 5^th July, 2022 03/RC

B Shiva Shankar v. Bank of India

Case brief

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B Shiva Shankar v. Bank of India

Case brief

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What did the court decide?

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