Allowed

Tata Capital Housing Finance Ltd. and Anr. v. Samir Nath

DRAT5 Aug 2024REGULAR APPEAL/19/2020

Case brief

AI extract

What is this about?

The Tribunal allowed the appeal, setting aside the DRT order which had quashed a recovery officer's possession notice. The DRT had found non-compliance with requirements regarding vernacular language publication, but the Tribunal found valid publication in both English and Bengali newspapers, holding the DRT finding against the record.

What did the court decide?

Impugned order dated 23.12.2019 passed by learned DRT-III Kolkata is set aside. S.A. No. 367 of 2018 is dismissed.

Tata Capital Housing Finance Ltd. and Anr. versus Samir Nath — Banking and Recovery | DRAT (2024)

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1 REPORTABLE / NOT REPORTABLE

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appl. No. 19 of 2020

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(Arising out of S.A. 367 of 2018 in DRT-3 Kolkata)

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THE HON’BLE JUSTICE SHRI ANIL KUMAR SRIVASTAVA, CHAIRPERSON

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Order No. 13 05.08.2024

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Tata Capital Housing Finance Ltd., Having Registered Office At Park Plaza, 2nd Floor, Flat No-2c And 2d South Block 71, Park Street, Kolkata 700016

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Authorised Officer, Tata Capital Housing Finance Ltd The Branch Manager, 11th Floor, Tower A, Peninsula Business Park, Senapati Bapat Marg, Lower Parel, Mumbai - 400013

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... Appellant

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--Vs--

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SAMIR NATH residing at Flat No- 4b, 10 Baghajatin Station Rd, Lp-138-22, Kolkata 700032, South 24 Parganas.

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... Respondents

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For Appellant : Mr. Rajiv Maity, ld. adv. 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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23.12.2019 passed by learned DRT-III Kolkata in S.A. No. 367 of 2018 [Mr. Samir Nath Vs. TATA Capital Housing Finance Ltd.] whereby S.A. was allowed. Feeling aggrieved, appellant preferred the appeal.

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Notice was issued upon the respondent, but respondent is

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not represented. Accordingly, I heard learned counsel for the

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appellant and perused the record.

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2 REPORTABLE / NOT REPORTABLE

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It appears that an application u/s 17 of the SARFAESI Act,

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2002 was filed by the respondent herein on the ground that home loan amounting to Rs.49,71,562/- was availed by him against collateral security of Flat no.4B, measuring 1300 Sft, at 10, Baghajatin Station Road, Kolkata, in favour of the financial institution, appellant herein, which was enforced by the financial institution. Repayment of loan was irregular. Loan account was classified as NPA on 09.04.2018. Demand notice u/s 13(2) of the

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Act was issued on 09.05.2018. Possession notice u/s 13(4) of the

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Act was also issued on 28.07.2018.

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It is observed by the learned DRT in the impugned order

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that possession notice was never served upon the respondent herein. After hearing learned counsel for the parties, learned DRT has recorded finding that loan account was rightly classified

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as NPA. Notice u/s 13(2) of the Act was served in accordance with law. But notice u/s 13(4) of the Act was never served upon the borrower. It is further observed that publication of possession notice u/s 13(4) in vernacular language was not brought on record. Accordingly, S.A. was allowed.

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3 REPORTABLE / NOT REPORTABLE

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5. Learned counsel for the appellant would submit that learned

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DRT has erred in holding that possession notice was not published in vernacular language rather said notice was published in two leading newspapers on 31.07.2018. Possession notice was also served upon the borrower and affixed on the conspicuous part of the secured asset.

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6. I find from the supplementary affidavit filed by the appellant

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that notice u/s 13(4) of the Act was published in two leading newspapers, one in the “Business Standard” in English and second, in “Dainik Statesman” in Bengali on 31.07.2018. It is also on record to show that that possession notice was also affixed on the conspicuous part of the secured asset. But learned DRT has overlooked the documents. Learned DRT has made a categorical finding that possession notice was hit by noncompliance of Rule 8(1) and 8(2) of the Security Interest (Enforcement) Rules, 2002, which is against the record.

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As far as classification of loan account as NPA and validity of

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notice u/s 13(2) are concerned, learned DRT has recorded a finding that these are in accordance with law. Accordingly, I am

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of the considered opinion that learned DRT has erred in holding

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4 REPORTABLE / NOT REPORTABLE

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that the possession notice was hit by non-compliance of the

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provision of Rule 8(1) and 8(2) of the Rules. Hence, impugned

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order suffers from material irregularity and it is liable to be set

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aside. Appeal deserves to be allowed.

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O R D E R

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Appeal is allowed. Impugned order dated 23.12.2019 passed

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by learned DRT-III Kolkata is set aside. S.A. No. 367 of 2018 is

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dismissed. Costs easy.

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File be consigned to record room.

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Copy of the order be supplied to the appellant and the respondents and a copy be also forwarded to the concerned DRT.

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Copy of the judgement/Final Order be uploaded in the Tribunal’s website.

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Order dictated, signed and pronounced by me in the open Court on this the 5th day of August, 2023.

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(Anil Kumar Srivastava, J) Chairperson

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Dated : 05.08.2024 16/pkb

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5 REPORTABLE / NOT REPORTABLE

Tata Capital Housing Finance Ltd. and Anr. v. Samir Nath

Case brief

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Tata Capital Housing Finance Ltd. and Anr. v. Samir Nath

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