Dismissed

Ms Tbpr Infra Projects Pvt. Ltd. v. State Bank of India

DRAT22 Jul 2025REGULAR APPEAL/59/2023

Case brief

AI extract

What is this about?

The DRAT dismissed the appeal filed by a borrower against a DRT order confirming a Bank's seizure of assets. The Tribunal held that the appellant was estopped from challenging the rejection of the extension of time for settlement and the subsequent possession notice after electing the High Court forum, which had already rejected similar pleas confirmed by the Supreme Court.

What did the court decide?

The appeal filed under Section 17 of the SARFAESI Act was dismissed with costs, and the impugned judgment of the Debts Recovery Tribunal was confirmed.

Ms Tbpr Infra Projects Pvt. Ltd. versus State Bank of India — Banking and Recovery | DRAT (2025)

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Reportable/Non-Reportable

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Appeal No.59 of 2023 -DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT

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KOLKATA

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HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Appeal No. 59 of 2023

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(Arising out of S.A. No. 97 of 2022 in DRT-I, Hyderabad)

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M/s. TBPR Infra Projects Pvt. Ltd. Flat No. 110, V.S.S. Nandadeep Apartments, Near Medchal RTA Office, Petbasheerabad, Ranga Reddy District, Hyderabad, Telangana -500055

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-Versus-

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State Bank of India represented by Authorized Officer, Stressed Assets Recovery Branch (SARB), 2^nd Floor, TSRTC Commuter Amenity Centre, Bus Terminal Complex, Koti, Hyderabad, Telangana -500095

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	….Respondents
Counsel for Appellants	Mr. Nimish Mishra, Mr. D. Basu Roy, Mr. Debjit Mukherjee,
Counsel for Respondents	Mr. Ajay Gaggar, Mr. Uttiyo
	Mallick, Mr. Shaunak Chanda,

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JUDGMENT : 22^nd July, 2025

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THE APPELLATE TRIBUNAL :

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Instant Appeal has arisen against a judgment and order dated 29^th September, 2022 passed by Learned DRT-1 Hyderabad dismissing the S.A. No. 97 of 2022 ( M/s TBPR Infra Projects Pvt. Ltd. versus State Bank of India (SARB). 2. As per pleadings of the parties, Appellant herein preferred a Securitisation Application under Section 17(1) of

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. Appeal No.59 of 2023-DRAT-Kolkata Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act) on the ground that Appellant is a Company who availed financial facility to a limit of Rs. 27.00 crore from the Respondent Bank. Guarantors created equitable mortgage against the schedule property to secure the loan. There were defaults in repayment of the loan. Accordingly, notices under Section 13(2) and 13(4) of the SARFAESI Act, 2002 (hereinafter referred to as the Act) were issued by the Respondent Bank. Notice under Section 13(2) of the Act was issued on 18.02.2019 demanding an amount of Rs.10,22,41,736/. 3. In February, 2014, Appellant approached the Bank for amicable settlement and agreement arrived at for payment of Rs. 7.10 crores on or before 04.05.2020. Amount could not be paid due to Covid Pandemic. On the request of the Appellant, Respondent Bank granted time upto 31.12.2020. An amount of Rs.2.85 crores is paid by the Appellant and an amount of Rs. 4.25 crore is balance due. On 24.12.2020, Appellant requested the Respondent Bank for extension of time till 31.03.2021 to clear the dues. Instead of responding to the said letter, a Possession Notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the Rules) was issued which was not served. One time settlement was also revoked by the Bank vide letter dated 06.01.2021. 4. Writ Petition No. 843 of 2021 was filed by the Appellant challenging the Possession Notice dated 08.01.2021.

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. Appeal No.59 of 2023-DRAT-Kolkata Another Writ Petition No. 2737 of 2021 was filed by the Appellant seeking extension of time for payment. However, both the Writ Petitions were decided by the Hon’ble High Court of Telangana at Hyderabad together and dismissed with liberty to the Appellant to approach the DRT. S.L.P © Nos. 5850 -5851 of 2022 were filed before the Hon’ble Supreme Court against the judgment of the Hon’ble High Court which were dismissed on 08.04.2022. As per the interim order of the Hon’ble High Court, Respondent Bank has received the total O.T.S. amount and account has been closed.

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5. In the S.A. a relief is sought for to the effect that it be declared that the loan account was closed and terminated in view of the compromise settlement. Amount of Rs.7.10 crore paid by the Appellant and further to direct the Bank to release all the collaterals to the Appellant.

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6. Respondent Bank filed the reply stating that the Appellants have availed financial assistance of Rs. 27.00 crore from the Bank. There were defaults in repayments and the account was classified as NPA. Bank proceeded under SARFAESI Act by issuing the Demand Notice dated 18.02.2019 under Section 13(2) of the Act demanding an amount of Rs. 10,22,41,736/- which was duly served upon the Appellants and was also published in two newspapers as the same was returned un-served upon the guarantors/ mortgagors. A settlement arrived at between the parties on 06.02.2020 whereby the Appellant was required to make a deposit of Rs.7.10 crore by 04.08.2020. Part payments

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. Appeal No.59 of 2023-DRAT-Kolkata were made by the Appellant. Thereafter, he sought extension of time which was extended upto 31.12.2020. Appellant further sought for extension vide letter dated 24.12.2020 which was declined and communicated to the Appellant vide letter dated 06.01.2021. Consequently, Possession Notice was issued on 08.01.2021 which was sent to the Appellant through registered post A.D. and was also published in newspapers ‘Indian Express’ and ‘Andhra Jyoti’ dated 13.01.2021. Two Writ Petitions were filed before the Hon’ble High Court challenging the Possession Notice as well as the cancellation of OTS by the Bank which was dismissed by the Hon’ble High Court vide order dated 02.03.2022. S.L.P. against the same order was also dismissed by the Hon’ble Apex Court on 08.04.2022. Securitisation Application is barred by limitation and is liable to be dismissed.

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7. Learned DRT framed the following two points for consideration: “(i) Whether the Applicant is entitled to claim any relief against the Respondent Bank under the SARFAESI Act? (ii) To what relief?”

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8. Learned DRT after hearing the Learned Counsel for the parties arrived at a conclusion that the Securitization Application filed by the Appellant is maintainable and filed within limitation. It is further held that the Demand Notice was duly issued and served upon the Appellant. Possession Notice was also issued to the Appellant and the other guarantors. It was duly published in the newspapers “Indian

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. Appeal No.59 of 2023-DRAT-Kolkata Express” English daily and ‘Andhra Jyothi’ Telegu daily newspapers dated 13.01.2021. Possession Notice was also affixed on the conspicuous part of the property. Accordingly, the Possession Notice was issued and served in accordance with law. It was further held by the DRT that the Hon’ble High Court in the Writ Petition has held that the Respondent is justified in withdrawing the O.T.S. extended to the Appellant in view of non-payment of the entire OTS amount within the stipulated period. Order of the Hon’ble High Court was confirmed by the Hon’ble Supreme Court. Accordingly, Learned DRT dismissed the Securitisation Application.

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9. Feeling aggrieved by the findings, Appellant preferred the Appeal.

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10. I have heard the Learned Counsel for the Appellant as well as the Respondent Bank and perused the records.

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11. A bare perusal of the Securitisation Application reveals that following two reliefs were sought for by the Appellant:

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a) Declare that the impugned Possession Notice dated 08.01.2021 issued by Respondent Bank under Rule 8(1) of Security Interest (Enforcement) Rules, 2002 as being Arbitrary, Illegal Void-ab-initio and contrary to the mandatory provisions of the Act and consequently set-aside the same;

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b) Declare the Loan Account of Applicant as Closed and Terminated pursuant to the fact that Applicant had already paid total Compromise Settlement Amount of Rs. 7.10 Crores to Respondent Bank in obedience to the Interim Orders of Hon’ble High Court of Telangana in W.P. Nos. 843 & 2737 of 2021 and consequently direct the Respondent Bank to release all the collaterals in favour of Applicant and pass such other and further order or orders as are deemed fit and proper in the circumstances of the case and in the interest of justice.

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. Appeal No.59 of 2023-DRAT-Kolkata 12. A perusal of the whole Securitisation Application reflects that only the Possession Notice dated 08.01.2021 was challenged by the Appellant along with a declaration to the effect that loan account stands closed and terminated. There is no challenge to the Notice under section 13(2) of the Act issued by the Bank. At this stage, without further entering into this issue which will be discussed later on, I would like to record the submissions made by the Learned Counsel for the Appellant.

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13. Learned Counsel for the Appellant would submit that he is challenging the impugned judgment on two counts:-

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(i) settlement and its legal inference.

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(ii) challenge to the impugned order on the ground of infirmities.

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14. It is not disputed that two Writ Petitions No. 843 of 2021 and 2737 of 2021 were filed by the Appellants before the Hon’ble High Court for the State of Telangana at Hyderabad which were decided and disposed of by a common judgment dated 2^nd March, 2022. S.L.P. No. 5850 -5851 of 2022 were filed against the judgment of the Hon’ble High Court which were dismissed by the Hon’ble Supreme Court on 08.04.2022.

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15. Learned Counsel for the Appellant would submit that the Appellants have deposited the amount under the orders of the Hon’ble High Court which was accepted by the Bank without any protest. Initially, extension of time was sought for which was granted upto 31.12.2020 but again a request for extension was made on 24.12.2020 which was declined

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. Appeal No.59 of 2023-DRAT-Kolkata vide letter dated 06.01.2021. Learned Counsel for the Appellant would submit that it was a Covid Pandemic period wherein Appellant was not able to make the deposits and Appellant would be entitled for the benefit of extension of time as granted by the Hon’ble Apex Court in Suo Motu Writ Petition © No. 03 of 2020.

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16. It is further contended by the Learned Counsel for the Appellant that the entire money was paid under the orders of the Hon’ble High Court during pendency of the Writ Petitions. Placing reliance upon the judgment of the Hon’ble Apex Court in Jang Singh versus Brij Lal and others AIR 1966 of SC 1631 in paragraph Nos. 6 and 7 Learned Counsel referred the maxim “ Actus curiae neminem gravabit. ” and argued that no act of Courts should harm a litigant and it is the duty of the Court to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. Learned Counsel further placed reliance upon The Law Lexicon for the meaning of word the maxim (Actus Curiae neminem gravabit) wherein the meaning is defined as “an act of the Court shall prejudice no man.” Learned Counsel further placed reliance upon a judgment of Punjab and Haryana High Court in M/s Hari Kewal Pvt. Limited, Anaj Mandi Sunam District Sangrur and others versus Debts Recovery Appellate Tribunal, New Delhi and others RA-CW No. 267 of 2020 (O&M) in CWP No. 2930 of 2019 dated 26.03.2021. It is submitted that the Hon’ble High Court has also followed the maxim of “Actus

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. Appeal No.59 of 2023-DRAT-Kolkata Curiae neminem gravabit.” Accordingly, the Appellant should not suffer for act of the Hon’ble High Court.

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17. It was further argued that after depositing the entire amount of Rs.7.10 crore, Appellant also made a payment of an amount of Rs. 51.00 lacs as interest vide order dated 27.04.2022 passed by Learned DRT-1 Hyderabad in I.A. No. 411 of 2022 in S.A. No. 97 of 2022. Accordingly, all the payments as required by the Hon’ble High Court or the DRT were made by the Appellant. Hence, now the Appellant should not suffer as his amount is adjusted in his loan account.

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18. Learned Counsel for the Appellant further submits that the law laid down by the Hon’ble Apex Court in the case of Bijnor Urban Cooperative Bank Limited Bijnor and others versus Meenal Agarwal and others (2023) 2 SCC 805 is not applicable to the facts of the case.

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19. Learned Counsel for the Appellant would further argue that the SARFAESI action initiated by the Bank was bad in law. Learned Counsel tried to extend the pleadings in his own way to an extent that illegalities in notice under Section 13(2) and 13(4) of the Act were also committed. Further, Learned Counsel argued at length about the classification of Account as NPA that it is wrongly classified as NPA and about the validity and legality of notice under Section 13(2) and 13(4) of the Act. In support of his argument, Learned Counsel placed reliance upon certain judgments. Even when the Learned Counsel was asked to show the pleadings in the Securitisation Application, Learned Counsel submits that the

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. Appeal No.59 of 2023-DRAT-Kolkata pleadings have to be read between the lines. Learned Counsel further placed reliance upon the judgment of the Hon’ble High Court in Writ Petition Nos. 843 and 2737 of 2021 wherein liberty was granted to challenge the measures and notice under Section 13(4) of the SARFAESI Act. Learned Counsel further argued about the notice under Section 13(2) of the Act as well as classification of account as NPA.

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20. Per contra, Learned Counsel for the Respondent submits that the issue of O.T.S. as well as extension of time has already been finally decided and concluded by the Hon’ble High Court in its judgment in W.P. No. 843 and 2737 of 2021 which was confirmed by the Hon’ble Supreme Court in S.L.P. No. 5850-5851 of 2022.

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21. Learned Counsel further submits that there are no pleadings regarding validity of notice under Section 13(2) or classification of Account as NPA. Hence, in the absence of any pleadings, neither this issue was placed before the Learned DRT nor any finding was recorded. Further, it is submitted that at appeal stage, the Appellant cannot raise these pleas for want of proper pleadings. It is further submitted that the judgment of the Hon’ble Apex Court in Suo Motu case No. 03 of 2020 is not applicable to the facts of the case as it is a case of contractual obligations between the Appellant and the Bank which is not covered under the orders in Suo Motu case No. 03 of 2020.

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22. Learned Counsel further submits that the issue of extension of time for One Time Settlement or a direction for

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. Appeal No.59 of 2023-DRAT-Kolkata

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One Time Settlement is covered by the judgment of the Hon’ble Apex Court in Bijnor Urban Cooperative Bank Limited (supra) as well as State Bank of India versus Arvindra Electronics Private Limited (2023) I SCC 540. Hence, now when the request for extension of time was declined by the Bank vide letter dated 06.01.2021 and the Possession Notice was also issued on 08.01.2021, the plea of extension of time does not survive.

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23. It is further submitted that the Appellants have raised the pleas which are not pleaded in the pleadings. Further, it is submitted that even in the ground of Appeal, there is no challenge to the findings that notice under Section 13(4) of the Act was duly issued, published and affixed on the conspicuous part of the secured assets. It is further submitted that no ground was taken in the appeal about the maxim Actus Curiae neminem gravabit.

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24 . Instant S.A. No. 97 of 2022 was filed by the Appellants on 25.04.2022 for the reliefs to quash the Possession Notice dated 08.01.2021 and to declare the loan account as closed and terminated with a consequential relief for direction to the Bank to release the collateral securities.

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25. Admittedly, Writ Petition No. 843 of 2021 was filed by the petitioner against the Respondent for issuance of a direction in the nature of Writ of mandamus declaring the impugned Possession Notice dated 08.01.2021 as illegal, arbitrary against the Rules with the relief to set aside the same.

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. Appeal No.59 of 2023-DRAT-Kolkata 26. Another Writ Petition No. 2737 of 2021 was filed by the petitioner against the Respondent before the Hon’ble High Court for a direction in the nature of Writ of Mandamus declaring the account of the Respondent in rejecting to extend the time stipulated under O.T.S. scheme vide its letter dated 06.01.2021 as arbitrary, illegal with a further relief to direct the Respondent Bank to extend the time stipulated under O.T.S. scheme from 31.12.2020 to 30.06.2021 by enabling the petitioner to close the loan account by paying balance compromise amount of Rs.4.25 crore. Both these Writ Petitions were decided by the Hon’ble High Court of Telangana at Hyderabad Division Bench by a common judgment dated 2^nd March, 2022 wherein Hon’ble High Court placed reliance upon the case of Bijnor Urban Cooperative Bank Limited Bijnor and others versus Meenal Agarwal and others (supra) wherein Hon’ble High Court categorically held that-

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“ 25 . Insofar the compromise settlement i.e., the One Time Settlement (OTS) scheme is concerned, Supreme Court in Bijnor Urban Cooperative Bank Limited (4 supra) has held as follows, viz.,

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“11.The sum and substance of the aforesaid discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/Bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under the OTS Scheme and the guidelines issued from time to time. If the bank/financial institution is of the opinion that the loanee has the capacity to make the payment and/ or that the bank/

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. Appeal No.59 of 2023-DRAT-Kolkata

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financial institution is able to recover the entire loan amount even by auctioning the mortgaged property/ secured property, either from the loanee and/ or guarantor, the bank would be justified in refusing to grant the benefit under the OTS Scheme. Ultimately, such a decision should be left to the commercial wisdom of the bank whose amount is involved and it is always to be presumed that the financial institution/ Bank shall take a prudent decision whether to grant the benefit or not under the OTS Scheme, having regard to the public interest involved and having regard to the factors which are narrated hereinabove.

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26. Thus, Supreme Court has held that no writ of mandamus can be issued by the High Court under Article 226 of the Constitution of India directing a financial institution/ bank to positively grant the benefit of One Time Settlement (OTS) to a borrower. Whether to grant benefit of OTS or not, is a decision which has to be left to the commercial wisdom of the bank/ financial institution.

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27. While petitioner has paid the compromise settlement amount on orders of the Court, the same undoubtedly were paid after cancellation of the OTS by the respondent. In any event, petitioner being the borrower, is bound to repay the loan amount to the Respondent. It is trite that interim orders of the Court can confer no additional right on a litigant.

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28. Therefore, and having regard to the law laid down by the Supreme Court in Bijnor Urban Cooperative Bank Limited (4 supra), any direction by the Court as sought by the petitioner would amount to a direction to the respondent to accept the OTS and positively grant the benefit thereunder to the petitioner which the Supreme Court has now disapproved.

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29. Hence, we are not inclined to issue any such positive direction.

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30. Notwithstanding the same, we are of the view that it is entirely between the petitioner and the respondent (being parties to the compromise settlement which was private contract) to wok on the

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. Appeal No.59 of 2023-DRAT-Kolkata

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same if permissible and agreeable to the parties, protecting and safeguarding the interest of both the parties. No interference by the Court is called for.

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31. Insofar the possession notice dated 08.01.2021 is concerned, court is of the view that petitioner has got adequate and efficacious alternative remedy under Section 17 of the SARFAESI Act. Therefore, even at this belated stage, it would be open to the petitioner to approach the jurisdictional Debts Recovery Tribunal for redressal of its grievance vis-à-vis the possession notice.

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32 . We express no opinion on merit as well as on limitation. All contentions are kept open.

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33. Subject to the observations made above, writ petitions are accordingly dismissed. No costs.

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34. As a sequel, miscellaneous petitions pending if any, in these writ petitions, shall stand closed.”

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27. Judgment of the Hon’ble High Court was assailed before the Hon’ble Supreme Court in S.L.P. (C) No. 5850 -5851/ 2022 by the Appellants wherein Hon’ble Supreme Court passed the following order on 08.04.2022 :

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“Considering the fact that the One Time Settlement (OTS) facility/ order was already withdrawn due to non-deposit of the entire amount under the OTS and subsequently the amount was deposited by the petitioner, pursuant to the interim order passed by the High Court, no writ of mandamus can be issued directing the bank still to accept the amount under the OTS, which, as such, was already withdrawn. The High Court is absolutely justified in dismissing the writ petitions.

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The Special Leave Petitions stand dismissed.

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Pending applications stand disposed of.”

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. Appeal No.59 of 2023-DRAT-Kolkata

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28. Judgment of the Hon’ble High Court in the two Writ Petitions which is confirmed by the Hon’ble Supreme Court has dealt with the issue of extension of time for depositing the amount under the O.T.S. scheme. It was categorically held by the Hon’ble High Court that the petitioner has paid the compromise settlement amount of orders of the Court. The same undoubtedly were paid after cancellations of the OTS by the Respondents. It was further held that it is trite that interim orders of the Court can confer no additional right on a litigant. In State Bank of India versus Arvindra Electronics Private Limited (supra) , Hon’ble Apex Court has relied upon the judgment of Bijnor Urban Cooperative Bank Limited Bijnor and others versus Meenal Agarwal and others (supra) and specifically held that the judgment of Bijnor Urban Cooperative Bank Ltd. (supra) is binding upon all the Courts and Tribunals and authorities. It was further held in Para No. 22 that –

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“ even otherwise as rightly submitted on behalf of the Bank directing the Bank to reschedule the payment under OTS would tantamount to modification of the contract which can be done by mutual consent under Section 62 of the Contract Act. By the impugned judgment and order rescheduling the payments under the OTS scheme and granting extension of time would tantamount to rewriting the contract which is not permissible while exercising the powers under Article 226 of the Constitution of India.”

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29. Learned Counsel for the Appellant has very vehemently argued that the maxim Actus Curiae neminem gravabit would be applicable in this case. It is further argued that the Appellants cannot be made victim of the orders passed in the Writ Petitions as Appellant deposited the amount

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. Appeal No.59 of 2023-DRAT-Kolkata under orders of the Hon’ble High Court, that too was under a compromise arrived at between the parties. Since the amount was deposited under orders of the Court, hence, Appellant would be entitled for extension of time as sought for. Learned Counsel has placed reliance upon Jang Singh versus Brij Lal and others (supra) and M/s Hari Kewal Pvt. Limited, Anaj Mandi Suman District Sangrur and others versus Debts Recovery Appellate Tribunal (supra)

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30. I am unable to accept the submissions made by the Learned Counsel for the Appellant as far as applicability of the maxim Actus Curiae neminem gravabit is concerned. Learned Counsel for the Appellant goes to the extent of arguing that the issue of jurisdiction of the Hon’ble High Court can also be raised before the DRAT. I am afraid and constrained to observe that the arguments of the Learned Counsel for the Appellant are misplaced and misconceived. When an issue is already raised and determined by the Hon’ble High Court against the Appellants and Appellants further challenged the Hon’ble High Court’s judgment before the Hon’ble Supreme Court by preferring an S.L.P., S.L.P. was also dismissed. Judgment of the Hon’ble High Court was confirmed, then how the DRT or DRAT can make an endeavour to look into that issue afresh? Law for precedence as well as judicial propriety and judicial discipline requires that the orders of the Hon’ble High Court and the Hon’ble Supreme Court have to be followed by all the Courts and Authorities in the State. Once an issue is

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. Appeal No.59 of 2023-DRAT-Kolkata finally decided and determined by the Hon’ble High Court and the Hon’ble Supreme Court, no maxim would come into aid of the Appellant. Rather, Appellant is trying to misuse the process of law. Hence, I am of the considered view that as far as issue of extension of time for making the deposit is concerned or rejection of the One Time Settlement by the Bank is concerned, it has already attained finality under the orders of the Hon’ble High Court and the Hon’ble Supreme Court.

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31. Learned Counsel for the Appellant further raised a plea about the applicability of the judgment of the Hon’ble Apex Court in Suo Motu case No. 03 of 2020 , that too is not acceptable. Suo motu case No. 03 of 2020 order dated 10^th January, 2022 reads as under:

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“ 5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:

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I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasijudicial proceedings.

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II Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.

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. Appeal No.59 of 2023-DRAT-Kolkata

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III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

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IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”

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32. The order of the Hon’ble Supreme Court in Suo Motu case No. 03 of 2020 was passed prior to passing of judgment by the Hon’ble High Court on 2^nd March 2022 which was confirmed by the Hon’ble Supreme Court by dismissing the S.L.P on 08.04.2022. But this point was not raised before the Hon’ble High Court or the Supreme Court. Hence, now the Appellants are estopped from raising the issue afresh in the Securitisation Application under Section 17 of the Act.

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33. Further, as far as applicability of the judgment of the Hon’ble Apex Court in Suo Motu case No. 03 of 2020 is

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. Appeal No.59 of 2023-DRAT-Kolkata concerned, it is not applicable to the facts of the present case as in the present case, it was a contract between a private individual and the Bank which is not covered under Suo Motu case No. 03 of 2020.

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34. Appellant challenged the Possession Notice dated 08.01.2021 by preferring the Writ Petition No. 843 of 2021. Further, Appellant filed Writ Petition No. 2737 of 2021 challenging a rejection of extension of time request by the Bank vide letter dated 06.01.2021. Appellant was having a right of election and he elected to prefer the Writ Petition before the Hon’ble High Court. It was held by the Hon’ble Apex Court in CELIR LLP Vs Sumati Prasad Bafna & Others (2024 SCC OnLine SC 3727) in paragraph 128 that:

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"128. Once, the Borrower had elected to move the High Court for the very same cause of action and underlying prayers, the moment the same was entertained by the High Court, which it did, the Borrower was precluded from pursuing its remedies before the DRT by way of S.A. No. 46 of 2024, and was duty bound to now espouse it only in the writ proceedings, as otherwise it would tantamount to having a second bite at the cherry and relitigating what it has already litigated…

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The Hon'ble Apex Court by placing reliance upon Joint Action Committee of Air Line Pilots' Association of India (ALPAI) -vs- DGCA, (2011) 5 SCC 435 wherein it was further held that:

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"12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking

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. Appeal No.59 of 2023-DRAT-Kolkata inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."

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In the case of CELIR LLP -vs- Sumati Prasad Bafna (supra), Hon'ble Apex Court referred to the decision of Vodafone Idea Cellular vs- Ajay Kumar Agarwal

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[(2022) 6 SSC 496] wherein it was held that:

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“As per the doctrine of election once a party has elected to choose remedy under one forum again the same cause of action cannot be challenged before another forum.”

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35. Appellants have challenged the letter dated 06.01.2021 issued by the Bank by preferring a Writ Petition before the Hon’ble High Court which was ultimately dismissed and confirmed by the Hon’ble Supreme Court meaning thereby that they elected a forum for redressal of their grievances and preferred a Writ Petition before the Hon’ble High Court. Hon’ble High Court decided the issue and dismissed the Writ Petition. Now the Appellants are estopped from challenging the same before the DRT by preferring a Securitisation Application under Section 17 of the Act. At this stage, Appellants tried to take an advantage of Para No. 31 of the judgment of Hon’ble High Court in W.P. No. 843 and 2737 of 2021 wherein Hon’ble High Court held that –

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31. Insofar the possession notice dated 08.01.2021 is concerned, court is of the view that petitioner has got adequate and efficacious alternative remedy under Section 17 of the SARFAESI Act. Therefore, even at this belated stage, it would be open to the petitioner approach

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. Appeal No.59 of 2023-DRAT-Kolkata the jurisdictional Debts Recovery Tribunal for redressal of its grievance vis-à-vis the possession notice.

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36. So far Possession Notice dated 08.01.2021 is concerned, Hon’ble High Court is of the view “petitioner has got adequate and efficacious alternative remedy under Section 17 of the SARFAESI Act. Therefore, even at this belated stage, it would be open to the petitioner to approach the jurisdictional Debt Recovery Tribunal for redressal of his grievance vis a vis the Possession Notice.” A limited option was granted by the Hon’ble High Court to the Appellant as far as challenge to the Possession Notice dated 08.01.2021 is concerned, the option given by the Hon’ble High Court cannot be by any stretch of imagination stretched to again reagitate the issue of rejection vide letter dated 06.01.2021 in the Securitisation Application under Section 17 of the Act. Accordingly, the relief sought for by the Appellant as far as it relates to relief (b) in the Securitisation Application to the effect that the loan account of the Applicant to declare as closed and terminated is totally against the settled principles of law. Appellant has made all efforts to misuse the process of law by reagitating the issue which has already attained finality from the Hon’ble Supreme Court.

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37. Now the issue of Possession Notice dated 08.01.2021 is to be considered.

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38. I have gone through the whole Securitisation Application under Section 17 of the Act wherein no specific ground is taken by the Appellant for challenging the Notice

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. Appeal No.59 of 2023-DRAT-Kolkata issued under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002. Learned DRT recorded a categorical finding that the Possession Notice issued by the Bank is in conformity with the provisions of the SARFAESI Act and there is no ground to set aside the said notice. This Appeal is filed on the basis of grounds taken in the memo of Appeal. Ten grounds are taken in the memo of Appeal although not required to be quoted but since an effort is made by the Appellant not even to challenge Notice under Section 13(4) of the Act rather, arguments are also placed regarding the validity, legality of classification of account as NPA and Notice under Section 13(2) of the Act, I found it appropriate to bring on record the grounds taken by the Appellants in memo of Appeal:

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GROUNDS:

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“(i) For That the order of the learned Debts Recovery Tribunal-1, Hyderabad, is erroneous and the findings are contrary to the documentary evidence, probabilities of the case and the records and is contrary to law and is liable to be set a sided.

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(ii) For That the learned Debts Recovery Tribunal-1, Hyderabad, had failed to appreciate the case facts in right perspective and did not consider all the relevant circumstances.

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(iii) For That the learned Debt Recovery Tribunal-I did not apply judicious mind and ignored the august principal of natural justice, equity and good consign.

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(iv) For That the learned Debt Recovery Tribunal-I had passed impugned order dated 29.09.2022 in a cryptic & slip shod manner

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without maneuvering into actual facts in detail. Since beginning, the Appellant had been pleading about its inability to pay the balance compromise amount of Rs.4.25 Crores within time stipulated due to the helpless, compelling and precarious situation arose due to clamping of lockdowns for Covid-19 pandemic. Throughout the Impugned order, there is no whisper about the difficulties faced by Appellant due to stoppage of its business during pandemic times. This itself shows the learned Debts Recovery Tribunal-1, did not ventured deep into case facts and hurriedly passed Impugned order in a haphazard manner.

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(v) For That the learned Debt Recovery Tribunal-I erroneously observed that the Appellant had relied upon judgment of Hon'ble Supreme Court reported in 2021 SCC Online SC 1255 of "Bijnor Urban Co-operative Bank Limited case". The fact remains that the Respondent counsel for bank had cited the said judgment. So also the learned Debts Recovery Tribunal-I had erroneously observed that the decisions relied by Appellant in 2007(11) SCC 369, 2018 (14) SCC 735 and WP.No.9408 of 2020 dated 02.07.2020 of Hon'ble division bench of High Court of Telangana, are not applicable to the present case on hand more particularly due to orders passed by Hon'ble Supreme court in SLP(c). No.5850-5851 of 2022 dated 08.04.2022.

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(vi) For That the learned Debt Recovery Tribunal-I was excessively influenced by the orders passed by Hon'ble High court in W.P.No.2737 & 843 of 2021 and subsequently by Hon'ble Supreme court in SLPC. No. 5850-5851 of 2022 inspite of the specific direction that no comment is being made on case facts and all the contentions are kept open for consideration by the Debts Recovery Tribunal. It is the said observation which was upheld by Hon'ble Supreme Court wherein the High court had given liberty to approach Debts Recovery Tribunal under Section 17 of the Act. Apparently the learned Debts Recovery

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. Appeal No.59 of 2023-DRAT-Kolkata Tribunal-1 misconstrued the findings of High Court and Hon’ble Supreme Court and dismissed S.A. No. 97 in an erroneous manner.

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(vii) For That the Appellant have cited 4 judgments of Hon'ble constitution courts wherein delayed payment of balance OTS amount was accepted by imposing nominal interest on the part of borrower. But the learned Debts Recovery Tribunal-I did not consider the solemn principle of natural justice adopted in such citations.

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(viii) For That the learned Debts Recovery Tribunal-I ought to have appreciated the fact that before filing of S.A. the Respondent No.1 bank have already received the entire compromise settlement amount with delay of 11 months and 23 days. Surprisingly it is the same Debts Recovery Tribunal which had granted interim order dated 27.04.2022 in I.A. No. 411 of 2022 directly to pay Rs.51 lakhs towards delayed interest as the pre-condition to stay all further proceedings subsequently the said approach was amiss while passing final order in S.A.No.97 of 2022. Thus, any action of bank much less the Impugned possession notice against Appellant is wholly unsustainable and tainted with illegality and bad in law. This aspect was completely ignored by learned Debts Recovery Tribunal-I while passing the Impugned order.

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(ix) For that all the while the endeavor of Appellant is to clear his debts as per the compromise settlement which was within his reach but due to pandemic situation a delay of 11 months occurred it is involuntary and bonafide. The learned DRT-I ought to have considered the fact that the Respondent No.1 bank did not raise any objection while receiving the amount of Rs.51 Lakhs which was paid by Appellant pursuant to the Interim Orders dated 27.04.2022 in I.A. No.411 of 2022 in S.A.No.97 of 2022. Thus, having received the entire OTS amount of Rs.7.10 Crores and additionally Rs. 51 Lakhs towards interest for delayed payments, the Respondent No.1 bank had no right

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or authority to retain the collateral of Appellant. Therefore it is clear there is no subsisting enforceable debt against the Appellant herein in favour of Respondent No.1 bank as the entire compromise settlement amount of RS.7.10 Crores along with delayed interest had already paid by Appellant to Respondent No.1 Bank. Thus the learned DRT-I Hyderabad ought to have allowed the S.A. by declaring all the coercive actions of bank as bad in law.

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(x) For That on one hand the Respondent No.1 bank had kept the Appellant engaged in making payments of balance compromise amount of Rs.7.10 Crore and on the other hand the bank had continued prosecution in O.A.No.166 of 2019 on the file of DRT-I Hyderabad and obtained recovery certificate vide its judgment dated 03.09.2019 for sum of Rs.10,15,89,224/-. Now the Respondent No.1 bank had also filed R.C.No.122 of 2022 in above said O.A. No. 166 of 2019 against the Appellant and its guarantors. The said R.C. No. 122 of 2022 is posted on 02.11.2022 for Appearance of Appellant herein. It is pertinent to mention that Appellant is taking steps to Reopen the case in O.A.No.166 of 2019 by filing appropriate petition. So also the appellant had reliably leaned that the Respondent No.1 bank is initiating steps to physically dispossess the Appellant by invoking the section 14 of the SARAFEASI Act. In view of the afore said facts and circumstances it is just and necessary to Stay all other further proceedings pursuant to Stay of all further proceedings being initiated by the Respondent Bank in pursuance of the Impugned Possession Notice dated 08.01.2021 issued by Respondent Bank under Rule 8(1) of Security Interest (Enforcement) Rules, 2002;

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39. Apart from it, in the Securitisation Application under Section 17 of the Act, there are no grounds for challenging the Notice under Section 13(4) of the Act issued by the Bank. Law is well settled that a fact which is not pleaded

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cannot be agitated. In Bachhaj Nahar versus Nilima Mandal and another [(2008) 17 SCC 491 ], it was held in paragraphs 12 and 13 that:

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"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with II issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties and to prevent any deviation from the course which litigation on particular causes must take.

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13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief."

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40. Validity or legality of Notice under Section 13(2) as well as classification of account as NPA are not pleaded in the Securitisation Application. Rather, it is admitted in Para No. 2. (iv) of the Securitisation Application that Bank issued Notice under Section 13(2) and 13(4) of the SARFAESI Act

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. Appeal No.59 of 2023-DRAT-Kolkata to the Applicant. It means there is an admission of the fact about the receipt of the Notice under Section 13(2) and 13(4) of the Act. Accordingly, since there is no pleading regarding challenge to the notice under Section 13(2) and 13(4) of the Act, classification of account as NPA, it could not be looked into. Further, when the Learned DRT has categorically recorded a finding to the effect that the Notice under Section 13(4) of the Act was issued in conformity with the provisions of the SARFAESI Act, then that finding of the DRT is not under challenge in the grounds of Appeal. A careful reading of the grounds for Appeal reveals that the finding of the Learned DRT was not challenged at any point of time. Accordingly, I am of the considered view that the finding of the DRT regarding validity of Notice under Section 13(4) of the Act is in conformity with the law and liable to be confirmed.

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41. On the basis of discussion made above, I am of the considered view that the Appeal filed by the Appellant is devoid of merits and is liable to be dismissed with costs.

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ORDER

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Appeal is dismissed with costs. Judgment and order passed by Learned DRT-1 Hyderabad in S.A. No. 97 of 2022 (M/s TBPR Infra Projects Pvt. Ltd. versus State Bank of India (SARB)) is confirmed.

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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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. Appeal No.59 of 2023-DRAT-Kolkata

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Order signed and pronounced by me in the open Court on this the 22^nd day of July, 2025.

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(Anil Kumar Srivastava,J) Chairperson

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