Dismissed

Imran Sha Choudhury v. Punjab National Bank

DRAT7 Nov 2025MISC APPEAL/72/2025

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal dismissed an appeal challenging the dismissal of a stay application against a bank's vacation notice. The Tribunal held the fresh appeal was barred by res judicata due to a prior merits decision and found no illegality warranting a stay.

What did the court decide?

The appeal was dismissed; the vacation notice issued by the bank remains effective; the interim stay application is rejected.

Imran Sha Choudhury versus Punjab National Bank — Banking and Recovery | DRAT (2025)

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Camp Court at DRT, Guwahati

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IN THE DEBTS RECOVERY APPELLEATE TRIBUNAL AT

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KOLKATA

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Misc. Appeal No. 72 of 2025

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(Arising out of I.A. no. 418/2024 of SA no 71/2024 in DRT, Guwahati)

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Mr. Imran Sha Choudhury, proprietor of M/s Choudhury Enterprise, S/o Harmuz Ali Choudhury, Resident of House no 5, Seuj Sarani Path, Bye land no :- 10, Lakhininagar, Guwahati -781006, District – Kamrup (Metro), Assam.

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….Appellant

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Punjab National Bank, Circle Sastra Centr, Guwahati, Nilgiri Mansion, G.S. Road, Bhanagarh, Guwahati-781005, Kamrup (Metro)

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Authorised Officer, Punjab National Bank, Circle Sastra Centr, Guwahati, Nilgiri Mansion, G.S. Road, Bhanagarh, Guwahati-781005, Kamrup (Metro) 3. Mr. Shonjit Adhikary, S/o Late Naraswar Dev Abhikary, Resident of – Regent Pradise, Block -3B, 3^rd Floor, B-2, PS- Hatigaon, PO:- Beltola, Guwahati- 781028.

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… Respondents

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For Appellant - Mr. Partha Bose and Mr. Proshit Deb (Through virtual mode) For Respondent - Ms. Aprajita Rao (Through virtual mode)

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Judgment - 7^th November 2025.

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THE APPELLATE TRIBUNAL:

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Heard the learned counsel Mr. Nemani Srinivas for the appellant learned counsel for the respondent Ms. Aparajita Rao and perused the record.

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Instant appeal has been preferred against order dated 19.07.2024 passed by Ld. DRT, Guwahati, in SA No. 71/2024, IA No 418 of 2024 whereby the Ld. DRT dismissed the IA No 418 of 2024 wherein relief for stay on the vacation notice issued by the bank on 11.06.2024 was sought for.

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As per the pleadings of the parties originally an SA No 93/2022 was filed by the appellant challenging the possession notice dated 14.09.2021 and demand notice dated 16.07.2019, which was dismissed by the Ld. DRT, Guwahati vide judgment and order dated 19.10.2023, Ld. DRT recorded a finding that the appellant was the borrower of the secured creditor. The loan account was classified as NPA. The secured creditor proceeded under the provisions of SARFAESI Act by issuing the mandatory notices. Secured assets were auctioned for an amount of Rs. 89 Lakhs. 25% of the bid amount was deposited by the successful auction purchaser and the confirmation of sale letter was issued on 01.09.2021. Order under Section 14 of the SARFAESI Act were obtained on 06.09.2021 from the District Magistrate and letter dated 14.09.2021 was issued by the secured creditor to the appellant to hand over the peaceful possession. Although appellant also preferred an application before the Hon’ble Guwahati High Court, wherein conditional order was passed but condition was not complied with. Consequently the Securitisation application was dismissed on 19.10.2023.

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A review petition No. 10 of 2023 was filed by the appellant against the order dismissing the SA, which is still pending. A fresh letter dated 11.06.2024 was issued by the secured creditor to the appellant for handing over the possession, which was again challenged by the appellant by preferring the SA No 71/2024. The relief was sought to set aside the vacation notice dated 11.06.2024. Further relief was sought that there are violation of mandatory provisions of section 13(2) and section 13(4) of the Act and Rule 8 of the Security of Enforcement Rules. Pending SA, an IA no. 418/2024 was filed by the appellant seeking stay on the vacation notice dated 11.06.2024 on the ground that the District Magistrate Order passed U/s 14 was not communicated to the appellant. Further the ground relating to the compliance of mandatory provisions of SARFAESI Act as well as the Rules were also taken. Bank opposed the prayer, Ld. DRT dismissed IA No 418/2024 by passing the impugned order which is under challenge in this appeal.

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Learned counsel for the appellant would submit that the impugned order is bad in law as the notice dated 11.06.2024 is issued by the bank pending review petition. It is further submitted that an order of the District Magistrate dated 19.02.2024 was allegedly taken help by

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the secured creditor wherein there is a mention of the order dated 06.09.2021 of the District Magistrate. Both these letters and orders came to the notice of the appellant pending SA. Hence, when the fresh orders have not been obtained by the bank U/s 14, letter dated 11.06.2024 for asking the appellant to vacate the property in dispute is bad in law. No other point is raised before me.

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Per contra learned counsel for the respondent vehemently opposed the prayer and submits that the order dated 06.09.2021 passed U/s 14 of the Act by the District Magistrate was already communicated to the appellant. It is further submitted that all the issues which have been raised in the present SA have already been raised by the appellant in the earlier SA No 93/2022, which was decided on merits and now that judgment shall operate as res judicata in this proceeding. Appellant cannot be permitted to raise those issues in the present SA or in IA. It is further submitted that although no ground is taken either in the SA or IA about the pendency of the review petition or legality of the letter dated 11.06.2024 on the ground of pendency of review petition but even if such a ground is considered it does not entitles the appellant to seek a stay pending review petition when there is no stay order passed by the Ld. DRT, Guwahati.

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Controversy in the present appeal is in a very short campus. Admittedly SA 93/2022 was filed by the appellant challenging the possession notice dated 14.09.2021 and demand notice dated 19.07.2021. SA No 93/2022 was dismissed by the Ld. DRT on 19.10.2023 on the ground that there is no illegality found in the notices under Section 13 (2) or 13(4) issued by the secured creditor. It is also recorded by the Ld. DRT that secured creditor obtained the orders of the District Magistrate U/s 14 of the Act on 06.09.2021. Thereafter a letter was issued on 14.09.2021 by the secured creditor to the appellant for handing over the vacant peaceful possession. Judgment dated 19.10.2023 in SA No 93/2022 passed by the Ld. DRT, Guwahati was not challenged in appeal rather a review petition No. 10/2023 is filed but no stay order is passed by the Ld. DRT. Accordingly Judgment dated 19.10.2023 passed by Ld. DRT attained finality. Mere filing of a review petition does not entitle the appellant to seek any relief on the basis of filing of a review petition rather if the appellant was having any good case in this favour he should have obtained stay order of the original judgment but the same was not

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done. Accordingly, appellant cannot take any advantage of filing of the review petition.

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Appellant again filed the SA No 71/2024 again challenging the action of the secured creditor U/s 13(2) and 13(4) coupled with Rule 8 of the Rules. Earlier judgment passed by the Ld. DRT in SA. No. 93/2022 would operate as res judicata in the subsequent SA. No. 71/2024 wherein same issues, which were already taken up and decided on merit by a competent court accordingly, principles of res judicata would be applicable by view is supported by the judgment of the Hon’ble Apex Court held that the principle of res judicata would be applicable even in the pending proceedings. The Hon’ble Apex Court in a recent judgment in Sulthan Said Ibrahim -vs- Prakasan & Others (2025 SCC OnLine SC 1218) decided on 23rd May, 2025 has placed reliance upon Bhanu Kumar Jain - vs- Archana Kumar reported in [(2005) 1 SCC 787] wherein it was held that:-

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“That the principles of res judicata apply not only to two different proceedings but also to different stages of the same proceeding as well. The relevant observations are reproduced hereinbelow: "18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal -vs- Deorajin Debi [AIR 1960 SC 941: (1960) 3 SCR 590] and Prahlad Singh -vs- Col. Sukhdev Singh [(1987) 1 SCC 727].) 19. In Y.B. Patil [(1976) 4 SCC 66] it was held: (SCC p. 68, para 4)

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"4. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."

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Yet again in Hope Plantations Limited [(1999) 5 SCC 590] this Court laid down the law in the following terms: (SCC p.604, para 17) "17. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice.”

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The Hon’ble Apex Court has also approved the decision of Five Judges Bench of the Hon’ble Calcutta High Court in Tarini Charan Bhattacharya v. Kedar Nath Haldar reported in 1928 SCC

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OnLine Cal 172 : AIR 1928 Cal 777 (FB) w herein it was held that:

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“(1) The question whether a decision is correct or erroneous has no bearing upon the question Whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a

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previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law/or on a pure point of law, and that therefore it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.

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(2) In India, at all events, a party who takes a plea of res judicata has to show that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and also that it has been heard and finally decided. This phrase "matter directly and substantially in issue" has to be given a sensible and businesslike meaning, particularly in view of Expl. 4 to sec. 11 of the Code of Civil Procedure which contains the expression "grounds of defence or attack." Sec. 11 of the Code says nothing about causes of action, a phrase which always requires careful handling. Nor does the section say anything about point or points of law, or pure points of law. As a rule parties do not join issue upon academic or abstract questions but upon matters of importance to themselves. The section requires that the doctrine be restricted to matters in issue and of these to matters which are directly as well as substantially in issue.

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(3) Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, questions of limitation, may all be questions of law. In such questions the rights, of parties are not the only matter for consideration. The Court and the public have an interest. When a plea 4 of res judicata is raised with reference to such matters, it is at least a question whether special considerations do not apply.

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(4) In any case in which it is found that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and has been heard and finally decided by such Court, the principle of res judicata is not to be ignored merely on the ground that the reasoning, whether in law or otherwise, of the previous decision can be attacked on a particular point. On the other hand it is plain from the terms of sec. 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or recontesting that which has been finally decided.”

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Accordingly filing of the fresh SA is barred by the principles of res judicata.

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As for as filing of IA is concerned for staying the operation of letter dated 11.06.2024, I do not find any illegality in the impugned order passed by the Ld. DRT.

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Earlier after obtaining the District Magistrate order a letter was issued to the appellant to hand over the possession but the same was

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not done. Thereafter, again in continuation of the same fresh order was obtained although the same is not challenged by the appellant. There is no challenge to the order of the District Magistrate passed U/s 14 of the SARFAESI Act accordingly, issuance of fresh letter dated 11.06.2024 by the secured creditor is in accordance with law. I do not find any ground for stay of the operation of the letter dated 11.06.2024.

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Ld. DRT has rightly held that when the sale certificate has already been issued and the sale proceeds have been adjusted in the loan account neither any prima facie case exists in favour of the appellant nor balance of convenience or irreparable loss is in favour of the appellant.

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In view of the above discussion I am of considered opinion that there is no infirmity or illegality in the impugned order passed by Ld. DRT Guwahati, accordingly appeal is liable to be dismissed.

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ORDER

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Appeal is dismissed.

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File be consigned to record room.

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Copy of the judgment / 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 7^th of November, 2025.

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(Anil Kumar Srivastava, J) Chairperson