Dismissed

M S Deepak Enterprises v. Baroda Rajasthan Kshetriya Gramin Bank

DRT22 Dec 2022SA/521/2022

Case brief

AI extract

What is this about?

This Debt Recovery Tribunal dismissed a special appeal filed by a borrower and guarantor challenging the stay proceedings and auction notices issued by a bank regarding secured loans. The court held the appeal devoid of merit due to failure to challenge prior notices and lack of impleading the auction purchaser.

What did the court decide?

Special Application disposed of as dismissed. Respondent Bank directed to adjust auction proceeds.

M S Deepak Enterprises versus Baroda Rajasthan Kshetriya… — Banking and Recovery | DRT (2022)

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SA No. 521/2022

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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA

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SA No.- 521/2022

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1. M/s Deepak Enterprises Prop. Sh. Ramkishan Suman s/o Sh. Mangilal Suman Address : D-329, Bhamashah Mandi, Kota, Dist. Kota, Rajasthan (Borrower)

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2. Smt. Rampyari Bai w/o Sh. Ramkishan Suman R/o House No. 123, Subhash Nagar-I, Kota, Dist. Kota, Rajasthan (Guarantor)

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………Applicants

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Versus

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Baroda Rajasthan Kshetriya Grameen Bank, Branch Bhamashah Mandi, Kota, Dist. Kota, through Authorised Officer.

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..….. Respondents

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Present:

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Sh. Abhishek Pareek, Ld. Counsel for the Applicant

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Sh. R N Vijay, Ld. Counsel along with Sh. Ayush Kumar Jain and Sh. Yash Sharma, Counsels for the Respondent Bank/FI

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(Final Order)

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(22.12.2022)

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This SA was filed on 25.08.2022. Vide order dated 30.08.2022 prayer to stay the proceedings of auction notice

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dated 29.07.2022 (Annexure A/5) was declined and the matter was adjourned to 28.09.2022 for filing reply.

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On 17.10.2022 reply to SA was field and on 12.12.2022 copies of sale certificate issued in favour of successful auction purchaser for 2 mortgaged properties were filed vide Dy. No. 10292.

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The securitization application was filed along with the application u/s 5 of the Limitation Act with a prayer for condonation of delay and the auction pamphlet dated 29.07.2022 Annexure A/5 was challenged by the SA applicant.

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As per said auction pamphlet, total 3 mortgaged properties were put to mortgaged and the SA applicant prayed that the respondent bank may be directed to not to proceed ahead in the light of auction scheduled on 31.08.2022.

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Auction, so conducted on 31.08.2022 was successfully conducted and out of three properties, two properties were auctioned and sale certificate was issued on 08.09.2022.

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Heard arguments and perused the record.

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Availing credit facility for an amount of Rs. 42.00 Lac against cash credit facility and for an amount of Rs. 9.77 Lac against term loan as admitted.

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It is admitted in Para 5(iv) of the SA that Demand Notice was issued on 09.06.2021, the account was declared as NPA on 04.06.2021 and the total outstanding amount was claimed Rs. 54,33,857/- Copy of Demand notice is filed at Annexure 1 but there is nothing on record which can show that the SA applicant filed any objection to the said Demand Notice.

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In Para 5(vi) it is mentioned that a customer of New Delhi failed to clear the bills for the SA applicant as goods for an amount of Rs. 23.00 Lac were sold out to him but on account of failure of the payment an FIR was lodged which is at Annexure A/2.

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Symbolic possession was taken on 08.12.2021 through notice at Annexure 3 in Para 5 (ix) and it is admitted in the SA that financial problems faced by the applicant was genuine but the Respondent bank failed to consider any prayer and finally the respondent bank obtained an order u/s 14 of the Act of 2002 on 31.05.2022.

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From the facts of the case it is clear that cause of action was arose on 08.12.2021 when possession notice (Annexure 3) was issued but SA applicant failed to approach to this Tribunal and they approached only when they acme to know that the Respondent Bank has issued the auction notice on 29.07.2022, the auction was scheduled on 31.08.202 and this SA was filed just before six days i.e. 25.08.2022.

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The financial problems as stated by the applicant in the SA, is the issue for which the Respondent bank is not liable because the applicant is bound to repay the outstanding amount as per agreed terms and conditions and if he was suffering any financial loss then he have to get the said financial issues settled but the secured the creditor like the respondent bank is not required to be suffered because if such plea is considered then many of the borrowers/defaulter may take such plea in order to avoid the liability of repayment.

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I have perused the entire facts of the SA and found that the credit facility was obtained by the SA applicant, all the necessary documents were executed, copies of which are filed along with reply. Demand Notice was duly served upon them but they failed to challenge the said demand notice, symbolic possession was taken by the Respondent bank and again they failed to challenge the same.

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So far as auction was conducted successfully and now SA applicant failed to point out any default/illegality in the Demand Notice, in Possession Notice or in the auction notice dated 29.07.2022.

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Further it is important to mention here that the sale certificate was issued on 078.09.2022 against the sale of two properties but the applicant failed to implead the auction purchaser as a necessary party to the proceedings of this case, because if the SA is allowed, such auction purchaser are going to be effected directly.

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As the Ld. Counsel preferred to argue the matter without impleading auction purchaser as a necessary party so it is not necessary to implead them as a party to the proceedings.

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In my considered opinion SA applicant failed to point out any illegality in any of the action initiated by the Respondent bank therefore as rightly pointed out by the Ld. Counsel for the Respondent, the SA as being devoid of any merit is required to be disposed of as dismissed.

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Accordingly the SA stands disposed of as dismissed with no cost, Respondent Bank is directed to adjust the Amount so received by them through Auction of 2 properties.

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Copy of the order be given free to the concerned parties.

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File be place before Registrar for compliance, after compliance file be consigned to record as per rules.

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Vivek Saxena Presiding Officer DRT, Jaipur

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M S Deepak Enterprises v. Baroda Rajasthan Kshetriya Gramin Bank

Case brief

What is this about?

What did the court decide?

M S Deepak Enterprises v. Baroda Rajasthan Kshetriya Gramin Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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