Dismissed

Aditi Ghosh v. Asset Reconstruction Company India Limited

DRAT21 Feb 2025REGULAR APPEAL/117/2024

Case brief

AI extract

What is this about?

The Tribunal dismissed an appeal against the DRT's order holding a Section 17 SARFAESI application barred by limitation regarding a copy mortgagement order. The court affirmed the lower court's calculation of the limitation period and rejected clean hands due to discrepancy in property floor details.

What did the court decide?

Affirmed the DRT order dismissing the Securitization Application under Section 17 of the SARFAESI Act.

Aditi Ghosh versus Asset Reconstruction Company India Limited — Company and Corporate | DRAT (2025)

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Reportable/Non-Reportable

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Appeal No. 117 of 2024-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appeal No. 117 of 2024 (Arising out of NDN 1322 of 2024 in DRT-III, Kolkata)

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HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Smt. Aditi Ghosh, wife of Sri Jayanta Ghosh, residing at Premises No. 33, Garia Park, Flat No. B-2, 2^nd Floor, P.S. Jadavpur, now Patuli, P.O. Garia, under Ward No. 110 of Borough XI, Kolkata: 700 084, South 24-Parganas.

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Sri Jayanta Ghosh, son of late Mukul Kanti Ghosh, residing at Premises No. 33, Garia Park, Flat No. B-2, 2^nd Floor, P.S. Jadavpur, now Patuli, P.O. Garia, under Ward No. 110 of Borough XI, Kolkata: 700 084, South 24-Parganas.

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… Appellant

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-Versus-

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Asset Reconstruction Company (India) Limited a Company incorporated under the Companies Act, 1956 and registered as a Securitization Company and Asset Reconstruction Company pursuant to Section 3 of the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act. 2002 (54 of 2002), having its Registered Office at The Ruby, 10^th Floor, 29, Senapati Bapat Marg, Dadar (West), Mumbai: 400 028 and Kolkata Office at DN-2, Signet Tower, Salt Lake, Sector-V, 10^th Floor, Room No. 1001, Kolkata - 700 091.

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Authorised Officer, Asset Reconstruction Company (India) Limited having its Office at Chatterjee International Centre, 33A, Jawaharlal Nehru Road, 8^th Floor, Room No.11A, Kolkata: 700 071 and also at DN-2, Signet Tower, Salt Lake, Sector-V, 10^th Floor, Room No. 1001, Kolkata - 700 091.

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… Respondents

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Counsel for Appellant … Mr. Souritra Ganguly Ms. Suparna Biswas

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Counsel for Respondents … None JUDGMENT : 21^st February, 2025

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THE APPELLATE TRIBUNAL :

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1. Instant appeal has arisen against order dated 22.8.2024, passed by Learned DRT-III, Kolkata, in NDN 1322 of 2022 (Aditi Ghosh & Others -vsAsset Reconstruction Company (India) Limited) whereby Learned

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Appeal No. 117 of 2024-DRAT-Kolkata DRT dismissed the Securitization Application filed under Section 17 of the SARFAESI Act, 2002 (hereinafter referred to as the ‘Act’) holding the same to be barred by limitation. 2. I have heard the Learned Counsel for Appellant. Respondents are served but not represented. 3. As far as facts of the matter are concerned an application under Section 17 of the SARFAESI Act, 2002 was filed by the Appellant to seek relief for quashing the Demand Notice under Section 13 (2) of the Act and Possession Notice under Section 13 (4) of the Act dated 26.11.2021 and 22.02.2022 and also quashing the order dated 22.5.2023 passed by the District Magistrate under Section 14 of the Act. Limitation was sought from 22.7.2024, the date of pasting of the impugned order dated 22.5.2023 at the premises of the Applicants. 5. Learned DRT held that the limitation is sought from the date of knowledge, i.e. 22.7.2024. The application under Section 17 of the Act was filed on 16.8.2024. Learned DRT held that the application is barred by limitation. Reliance is placed upon the judgment of the Hon’ble Apex Court in Akshat Commercial Private Limited & Another -vs- Kalpana Chakraborty & Others (AIR 2010 Cal 138).

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6. Learned Counsel would submit that Learned DRT has erred in holding that the Securitization Application under Section 17 of the Act was barred by limitation. It is submitted that no notice was ever served upon the Appellant, who is neither Borrower nor Guarantor. He came to know about the order passed by District Magistrate when

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Appeal No. 117 of 2024-DRAT-Kolkata the same was pasted on 22.7.2024. It is further submitted that he has purchased the second floor admeasuring 1100 sq.ft and one open car parking space on the ground floor together with undivided proportionate share or interest on the land at premises No. 33, Garia Park, Flat No. B-2, 2^nd Floor, P.S. Jadavpur, now Patuli, P.O. Garia Jadavpur, now Patuli, P.O. Garia, under Ward No. 110 of Borough XI, Kolkata 700 084. Appellant purchased the property through a deed of conveyance and enjoying the same. He is the lawful owner of the property. The impugned order provides that one Rakesh Kumar Das and Mrilani Das mortgaged the property in 2018 which is similar and identical to the Appellant’s residential flat.

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7. When the Appellant came to know about the impugned order on 22.7.2024 when the same was pasted on his property then he filed the Securitization Application. 8. So far as issued of limitation is concerned it is settled in the Akshat Commercial (supra) that the limitation period of forty five days cannot be extended by invoking the provisions of Section 5 of the Limitation Act. Appellant is challenging the order of the District Magistrate with a challenge to the Demand Notice and all consequential actions. He has calculated the limitation from the date of knowledge which could not be granted in his favour. A documents filed by the Appellant himself would reveal that he filed the Conveyance Deed dated 5^th March, 2017 executed by Abhijit Basu, Ranjit Kumar Bose, Asit Bose and Satyajit Bose, through their Constituted Attorney, Debasish

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Appeal No. 117 of 2024-DRAT-Kolkata

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Sarkar and Samir Kumar Halder in favour of the Appellant Jayanta Ghosh wherein details of the property are shown as:

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The Second Schedule ‘B’

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“ALL THAT piece and parcel the One-self contained residential Flat measuring about super built up area 1100 Sq. ft. more or less, on the Fourth Floor (Marble), North Facing and along with One Open Car Parking space admeasuring about 100 Sq. ft. more or less on the Ground Floor of the G + IV (Four) Storied Building, together with undivided proportionate impartible share or interest in the Land or Soil of the said Premises, being the Kolkata Municipal Corporation Premises No. 33, Garia Park, (Malling Address: P-9, Garia Park), P. O. Garia, P. S. Jadavpur, under Ward No. 110 of Borough - XI, Kolkata-700 084, in the District of South 24-Parganas, which is more fully and particularly described in the First Schedule 'A' herein above written.”

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This schedule itself shows that the property purchased was on the 4^th Floor while the Appellant has taken a plea of second floor in its pleadings. 9. Learned Counsel for Appellant would submit that there was a typographical mistake while the Appellant has purchased the second floor property which is evident from the Agreement of Sale. But this argument cannot be accepted as firstly, the Deed was executed in the year 2017 and till date no correction deed is executed. Secondly, this fact was well within the knowledge of the Appellant. Had it been so, Appellant should have pleaded it in his own application under Section 17 of the Act; but it is not disclosed. It shows that Appellant has not come with clean hands before the Learned DRT. Litigant who has not come with clean hands by concealing relevant facts, is not entitled for any relief.

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10. As far as issue of limitation is concerned, limitation is sought from the date of knowledge which could not be

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Appeal No. 117 of 2024-DRAT-Kolkata accepted as there is a challenge to all the Securitization actions undertaken by the Bank.

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11. Having considered the submission, I do not find any illegality or irregularity in the impugned order. Appeal lacks merit and is liable to be dismissed.

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O R D E R E D

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Appeal is dismissed. The impugned order dated 22.9.2024, passed by Learned DRT-III, Kolkata, in NDN 1322 of 2022 (Aditi Ghosh & Others -vsAsset Reconstruction Company (India) Limited) whereby Learned DRT dismissed the Securitization Application filed under Section 17 of the SARFAESI Act, 2002, is affirmed.

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No order as to costs.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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File be consigned to Record room.

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Order signed, dated and pronounced in open Court.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 21^st February, 2025 ac

Aditi Ghosh v. Asset Reconstruction Company India Limited

Case brief

What is this about?

What did the court decide?

Aditi Ghosh v. Asset Reconstruction Company India Limited

Case brief

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What did the court decide?

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