Allowed

Seeta Devi Agarwal v. Dcb Bank Limited

DRT20 Jul 2023SA/120/2022

Case brief

AI extract

What is this about?

The Tribunal allowed the application filed under Section 77 of the SARFAESI Act. Quashing the bank's action to take possession via a warrant, the Court held that after withdrawing a previous possession notice, the bank failed to serve a fresh notice under Section 13(4) and acted illegally.

What did the court decide?

Securitisation Application allowed by setting aside the action of the Respondent Bank to take physical possession of the schedule property pursuant to the warrant obtained in Crl.M.P. No.46/2022.

Seeta Devi Agarwal versus Dcb Bank Limited — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERY TRIBUNAL AT HYDERABAD

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DATED THIS THE 2OTH DAY OF JULY, 2023

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PRESENT: SH, RAMESHWAR KOTHE, B.Com, L.LB. (Hons.), M.A. PRESIDING OFFICER

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SECURITISATION APPLICATION NO. 120 OF 2022

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1.	Smt.Seeta Devi Agarwal H. No.3/1,AlkapurTownship Village Neknampur,Rajendra NagarMandal Telangana, Hyderabad-500089.
2.	Smt.SusheelaDevi Wo^{LateSriRamesh}ChandAgarwal
3.	AmitKumar Agarwal S/oLateSriRamesh ChandAgarwal
4.	AtishKumar Agarwal S/oLateSriRamesh ChandAgarwal
5.	Ashish Kumar Agarwal S/oLateSriRamesh ChandAgarwal. .......Applicants.
	(Applicants No.2to5areLegalheirsof Agarwal,whodiedon25.07.2017.) LateRameshChand
	Versus
	DCBBank Limited CollectionDepartment 8-2-t2O/84,2,dFloor JyothiMajestic BanjaraHills Hyderabad-500073 Rep.by its AuthorisedOfficer. ......Respondent.
	CounselfortheApplicant Mr.B.SrinivasaReddy.
	Respondent Bank rx-oarte.6ffi{l.ts

SA.No.120/2022

-:ORDER:-

The present Securitization Application is filed by the Applicants u/s. 77 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 assailing the action of respondent bank lnitiated under the Securitisation Act including the one for taking physical possession of the schedule property pursuant to the order in Crt.M.p.46/2022 on the file of the Learned II Addl. Chief Metropolitan Magistrate, Hydera bad.

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Despite K.L. Sujay Kumar, Senior Manager of the respondent bank requested time to engage an Advocate, the respondent remained absent. Accordingly, the Respondent Bank was set ex-parte on 27.03.2023 as called absent and no representation.

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Heard the Ld. Counsel appearing for the Applicant and perused the material placed on record.

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According the Ld. Counsel appearing for the Applicant submits that as a matter of fact the respondent bank initiated SARFAESI proceedings by way of a recall notice dated 04.04.2017 and demand notice dated 13.04.2017 in respect of the housing loan availed by 1st applicant in the year 2007. 1st applicant,s husband Ramesh Chand Agarwal stood as a guarantor to the loan availed by 1st applicant, who died on Z5.O7.ZOt7. 1't applicant and her late husband raised objections to the demand notice on 29.04.20L7 pointing out charging a higher rate of interest, omission of entries of certain EMIs in the statement of account, falling of applicant's loan account under sections 31(h) and (j) of the SARFAESI Act to the loan account, creation of llw'z^o

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SA.No.120/2022

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mortgage over the 1st applicant,s property etc. The respondent bank gave a reply with untenable grounds. The possession notice issued u/s 13(4) dated 09.07.2018 came to be challenged vide SA.34l/2018 and the SA was ailowed by this Tribunal vide order dated 24.05.2019 consequent to withdrawal of the said possession notice by the respondent. Thereafter, the respondent bank obtained warrant in Crl.M.p.46 /2022 dated 22.04.2022 on the fite of learned II Addl. Chief Metropolitan Magistrate, FAC Chief Metropolitan Magistrate, Hyderabad. As already observed in the order passed in the earlier 5A.347/ 2018, once the possession notice is withdrawn, any subsequent action for taking physicar possession of the secured asset if 0ry, shall be initiated afresh. Therefore, the action of respondent bank to obtain warrant u/s L4 of the SARFAESI Act, without issuing a fresh possession notice u/s 13(4) is per se illegal and against the provisions of the SARFAESI Act and the Rules thereunder. Accordingly, learned counsel prayed for quashing the action of respondent to take physical possession of the application schedule property pursuant to the warrant issued in Crt.M.p.No.46 /2022.

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As stated supra, the Respondent Bank remained ex_parte. In the absence of any proof as to compliance of due procedure as under the SARFAESI Act, 2002 and the Rules thereunder while enforcing the security interest over the apprication schedure property by the Respondent Bank, the present Securitisation Application has to be allowed by setting aside the action of Respondent Bank from taking the physical possession of the property pursuant to the warrant obtained in Crl.M.p.46 /2022. AV:$ 'Y^1'9"

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SA.No.120/2022

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In the result, the^{present Securitisation Applicationis allowed} by setting^{aside the action of RespondentBank from takingthe} physical possession of^{the application schedule property} pursuant to the warrant^{in Crl. M'P' No'46/2022' Consequently} interlocutory^{applicationsif any pending, shall standdisposed} of. No order^{as to costs.}

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Communicate^{a copy of this order to the parties concerned'} (Dictated to the Private Secretary, corrected,^{signed and pronouncedby me} 'ii the open court on this the 20th day of lulY, 2023)'

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Ow* (RAMESHWAR KOTHE) PRESIDING OFFICER

Seeta Devi Agarwal v. Dcb Bank Limited

Case brief

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Seeta Devi Agarwal v. Dcb Bank Limited

Case brief

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