Dismissed

Ms Jai Bajrang Agrofarm Pvt. Ltd. v. Bank of India

DRT9 Dec 2022SA/149/2022

Case brief

AI extract

What is this about?

The DRT Patna dismissed an application under Section 17 of the SARFAESI Act filed by borrowers seeking to quash a possession notice issued by Bank of India. The court held that while the application was not barred by limitation due to exclusion of time for the pending writ petition, the claim of procedural impropriety by the bank was devoid of merits. The possession notice was found to be validly

What did the court decide?

Application under Section 17 of the SARFAESI Act dismissed with costs along with all pending applications.

Ms Jai Bajrang Agrofarm Pvt. Ltd. versus Bank of India — Banking and Recovery | DRT (2022)

DRT,PATNA

SA 149 of 2022 [J]

DEBTS RECOVERY TRIBUNAL PATNA

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Presiding Officer: Shri KaushalendraYadav

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SA - 149 of 2022

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MIs Jai Bajrang Agrofarm Pvt. Ltd., N.H. 30 Road, Harnathpur Kochas, District - Rohtas, through its Proprietor Chandra Shekhar Singh, Son of Ramashish Singh, Resident of Patel Nagar, Kochas, P.O. + P.S. - Kochas, District - Rohtas. 2. Ram Chandra Singh, Son of Ramashish Singh, Resident of Village - Kochas, House No. 56, Ward No.7, Kochas Sasaram Road, P.O. + P.S. - Kochas, District - Rohtas

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......... Applicants

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Versus

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1. The Authorized Officer, Bank of India, Kochas.

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1. The Senior Branch Manager, Bank of India, Branch Kochas, Rohtas.

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Address of Respondents:-

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Bank of India, Kochas Branch, Mara Tara Chandi Market Complex, 1st Floor, Main Raod, Kochas, District - Rohtas, Pin Code - 821112 (Bihar).

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--respondents

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Present:

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For the Applicant : Sh. Om Prakash Singh, Advocate For the respondents Bank : Sh. R.N. Sinha, Advocate

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Dated: 09.12.2022

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JUDGMENT

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Present application u/s 17 of SARFAESI Act has been filed with a prayer to quash entire SARF AESI action taken against the properties of applicant alongwith the possession notice.

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The brief facts of the case are that the applicant availed Term Loan and Cash Credit Facility from the respondent bank. On default in repayment of the dues of the bank, the account of the applicant was declared as NPA on 31.03.2021. Subsequently, the bank initiated SARFAESI Action against the borrower and issued demand notice u/s 13(2) dated 01.06.2021 calling upon the applicant to make the payment of Rs.11 ,59,23,287.33. Further possession notice dated 26.08.2021 u/s 13(4) of the SARFAESI Act was issued. Aggrieved from the possession notice, this SA has been filed by the applicant alongwith limitation petition.

DRT,PATNA

SA149 of 2022 [J]

On the point of limitation, it is submitted by the Ld. Counsel of applicant that the applicant got the knowledge about possession notice dated 26.08.2021 when it was pasted on the outer wall of his house. Thereafter, the applicants contacted the Advocate of the High Court for challenging the action of the bank and filed a Writ petition CWJC NO.17791/2021 on 29.09.2021. The said Writ petition was disposed of on 26.04.2022 with liberty to pursue his remedy in accordance with liberty. Thereafter, the applicant contacted to present counsel and this case has been filed on 23.05.2022. The delays of 225 days occur due to aforesaid circumstances there are no latches on the part of applicants. The delay of filing the present case may be condoned.

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It is further submitted by the applicant that, due to heavy cyclone/storm the applicant suffered heavy loss. The applicant requested the bank to restructure the loan but the bank didn't do so. The applicant has also made a claim before the insurance company but the same has not been paid by the insurance company. Due to such circumstances, the account of the applicant became NPA. After declaration of account as NPA, the respondent bank issued a demand notice dated 01.06.2021 u/s 13 (2). Against the said demand notice, the applicant no.2 sent his representation and raise objection dated 15.06.2021 u/s 13(3A) of the Act but the respondent bank didn't reply the same and without disposing the representation, the bank issued Possession notice dated 26.08.2021 u/s 13(4) of the SARFAESI Act but the same has not been served to the applicant. The bank failed to comply with the provision of the Act and failed to comply with Rule 8(1) and (2) of the Security Interest (Enforcement) Rules, 2002. The respondent bank had pasted the possession notice on the conspicuous part of the building. It is further submitted that except the demand notice dated 01.06.2021, no other demand notice was received by the applicants.

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On the contrary, Ld. Counsel of respondent bank submits that this application filed by the applicant is barred by the law of limitation as the cause of action has arisen on 26.08.2021 the day on which Possession notice u/s 13(4) of the Act was sent to the borrower. The applicant had filed a Writ petition before the Hon'ble High Court on 01.10.2021 and the same was dismissed as withdrawn on 26.04.2022. After withdrawal of the Writ, the present application is filed on 25.05.2022.

DRT,PATNA

SA 149 of 2022 [J]

It is further submitted that after availing the loan facility the borrowers failed to repay the installments/sale proceeds nor deposited interest in the loan account. Therefore, the accounts of the borrower were declared as NPA on 31.03.2021. Subsequently, the bank issued a demand notice dated 01.06.2021 u/s 13(2) of the SARFAESI Act. As admitted by the applicant, the demand notice was received by the applicants. Against the said demand notice, no representation was sent by the applicants to the bank and the alleged representation dated 15.06.2021 which is annexed as Annexure 8 to the application is forged, fabricated and manufactured documents. Thereafter, the bank proceeded further and issued possession notice dated 26.08.2021 u/s 13(4) of the act and the possession notice was served upon the debtors and director of the company Sri Chandra Shekhar Singh received the same and in token of acceptance signed on the notice. The bank also affixed the possession notice on all the secured assets. The possession notice was published in two newspapers on 30.08.2021. Moreover, the applicants in its Writ petition admitted in paragraph 18 that "On 26.08.2021 the petitioner was served with the possession notice thus, forcing him to file the said writ petition".

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I have heard Ld. Counsel for the parties and gone through the record.

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The applicant had filed a Writ petition before the Hon'ble High Court on 01.10.2021 and the same was dismissed as withdrawn on 26.04.2022. After withdrawal of the Writ, the present application is filed on 25.05.2022. The applicant is entitled to exemption of the time during writ petition under section 14 of the Limitation Act. which runs as under-

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Exclusion of time of proceeding bona fide In court without

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jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

DRT,PATNA

SA 149 of 2022 [J]

In view of the above discussion, the application to condone the delay deserves to be allowed.

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It has been alleged that the applicant received the demand notice dated 01.06.2021 u/s 13 (2) and against the said demand notice, the applicant no.2 sent his representation and raise objection dated 15.06.2021 u/s 13(3A) of the Act but the respondent bank didn't reply the same and without disposing the representation, the bank issued Possession notice dated 26.08.2021 u/s 13(4) of the SARFAESI Act but the same has not been served to the applicant. The bank failed to comply with the provision of the Act and failed to comply with Rule 8(1) and (2) of the Security Interest (Enforcement) Rules, 2002. The respondent bank had pasted the possession notice on the conspicuous part of the building. It is further alleged that except the demand notice dated 01.06.2021; no other demand notice was received by the applicants.

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On perusal of records it appears that the bank issued a demand notice dated 01.06.2021 u/s 13(2) of the SARFAESI Act. As admitted by the applicant, the demand notice was received by the applicants, so far as representation of applicant is concerned, the applicant could not submit the proof of dispatch or its receipt. There is no dispute regarding Possession Notice.

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In view of the above discussion, the application is devoid of merits and .deserves rejection with costs.

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ORDER

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The application under Section 17 of the SARFAESI Act filed by MIs Jai Bajrang Agrofarm Pvt. Ltd. and one another, with all pending lAs is dismissed with costs.

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with all pending lAs V o.,. \ -1\ ~ [Kaushalend raYadav] Presiding Officer Debts Recovery Tribunal, Patna

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Judgment signed, sealed, dated and pronounced in the open court on this 09TH Day of December, 2022.

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[Kaushalendra Presiding Officer Debts Recovery Tribunal, Patna

Ms Jai Bajrang Agrofarm Pvt. Ltd. v. Bank of India

Case brief

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Ms Jai Bajrang Agrofarm Pvt. Ltd. v. Bank of India

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