Allowed

A.O.Kotak Mahindra Bank Ltd. v. Dr.Prathibha Sharan

DRAT4 Apr 2025MISC APPEAL/148/2017

Case brief

AI extract

What is this about?

In a debt recovery appeal, the Tribunal allowed an appeal filed by a bank to set aside an interim order granting a final opportunity to a respondent. The respondent had not appeared before the Tribunal despite summons for clarification, and the court found her conduct unjustifiable for proceeding with the application to restore a suit dismissed for default.

What did the court decide?

Set aside the order of Ld. Presiding Officer, DRT – II, Bangalore in IA 5209/2016 dated 20.07.2017. Allow the appeal MA (SA) 148/2017 with costs of the appellant. Pending IAs, if any, stand closed.

A.O.Kotak Mahindra Bank Ltd. versus Dr.Prathibha Sharan — Banking and Recovery | DRAT (2025)

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 04^th day of April, 2025

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PRESENT: HON’BLE MR. JUSTICE G. CHANDRASEKHARAN

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CHAIRPERSON

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MA (SA) 148/2017

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(Arising out of IA 5209/2016 in SA 407/2016 on the file of DRT - II, Bangalore)

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Between

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The Authorised Officer, Kotak Mahindra Bank Ltd, No.59, Sri Complex, BHSC T Block, BSK 3^rd Stage, Bengaluru – 560 085 …..Appellant

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And

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Dr.Prathiba Sharan, W/o. Dr.Sharan Srinivasan, No.29/60, “Rangaswamy”, 1^st Main Road, Lower Palace Orchards, Bengaluru – 560 003. …..Respondent

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Counsel for Appellant : M/s. V.Jayachandran & Associates Counsel for Respondent : M/s. R.Anitha

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ORDER

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This appeal is filed under Sec.18 of the SARFAESI Act, to set aside the order passed in IA 5209/2016 in SA 407/2016 on 20.07.2017 by the Ld. Presiding Officer, DRT – II, Bangalore.

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IA 5209/2016 was filed to recall the order passed in SA 407/2016 on 31.10.2016 and restore SA 407/2016, which was disposed on 31.10.2016. This SA was dismissed for default and non-prosecution of the case.

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It is seen from the order passed in SA 407/2016 that the respondent obtained an interim order on 16.08.2016 not to issue sale certificate by the bank till the next date, subject to payment of Rs.10 lakhs within four weeks from 16.08.2016 and close the loan account within three months from the said date. Respondent has not complied with the conditions imposed in the order.

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When the matter was listed for hearing on 06.10.2016, Ld. counsel for the bank filed a copy of the letter dated 26.09.2016 given by the respondent, wherein respondent stated that she was shocked and surprised to hear that the SA had been filed seeking stay of auction held on 12.08.2016 in her name. She further stated that she never signed any papers regarding filing of any case against the bank. This letter was given by the respondent in her own handwriting and handed over to the bank official in person. In the said circumstances, the Ld.DRT, directed the respondent to appear before the Tribunal on 07.10.2016 to clarify with regard to her allegation of impersonation and forgery. It appears that despite giving sufficient opportunities, the respondent had not appeared before the Tribunal. A warning was given that if she fails to appear on 24.10.2016, the application would be dismissed. Despite that, she had not appeared in person, before the Tribunal. In the said circumstances, the SA was dismissed for default.

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In the application filed in IA 5209/2016, the Ld. Presiding Officer, without going into the merits of the case, allowed the application only with a view to give a final opportunity to the respondent. The said order is now under appeal.

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When the matter was taken up before this Tribunal, on 06.02.2025, this Tribunal recorded the submissions of the counsel appearing for both the parties and directed appearance of the respondent in the next hearing and also called for original memo dated 24.10.2016 filed by the respondent’s advocate from DRT – II, Bangalore. When the matter was taken up on

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07.03.2025, the respondent did not appear in person before this Tribunal. Ld. counsel for respondent filed a memo stating that the order of this Tribunal, directing the respondent to appear in person was communicated to her, through two communications, through Speed Post with acknowledgement due and both notices had been served on the respondent. But the respondent has not contacted the counsel. Therefore, respondent's personal appearance could not be secured. The Original memo called for from DRT – II, Bangalore is received today.

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It is clearly established from the order passed in SA 407/2016 and the reluctance to appear before this Tribunal by the respondent, that respondent does not want to face this Tribunal and the Tribunal below. When serious allegations of fraud and forgery had been leveled up by the respondent in a letter given to the bank stating that she has not filed the SA 407/2016, this Tribunal finds that allowing IA 5209/2016 with a view to give an opportunity to respondent is not justifiable, especially so when she refused to appear before the Tribunal despite giving multiple opportunities. Her conduct of avoiding the Tribunal continued here also.

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In the said circumstances, this Tribunal finds that the allowing of the application in IA 5209/2016 filed to set aside the order dated 31.10.2016 and restore SA 407/2016 is not justifiable, both on law and on facts and thus the order of the Ld. Presiding Officer, DRT – II, Bangalore in IA 5209/2016 dated 20.07.2017 is hereby set aside and this Appeal MA (SA) 148/2017 is allowed, with the costs of the appellant.

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Pending IAs, if any, stand closed.

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[Dictated to Steno (DD), transcribed by her, corrected, signed and pronounced by me in open court, this 4^th April, 2025]

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Sd/-

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(JUSTICE G. CHANDRASEKHARAN) CHAIRPERSON

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A.O.Kotak Mahindra Bank Ltd. v. Dr.Prathibha Sharan

Case brief

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A.O.Kotak Mahindra Bank Ltd. v. Dr.Prathibha Sharan

Case brief

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