Dismissed

Ms Dashmesh Rice Mills v. Punjab National Bank

DRT15 Jul 2023SA/3/2022

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed a Securitization Application challenging recovery actions taken by a bank. The court held that the applicant admitted account irregularities and non-supply of documents, rendering provisions regarding proprietorship status and plant hypothecation without force. It found the District Magistrate act valid and the auction lawful.

What did the court decide?

None granted. The Securitization Application was dismissed with costs. Pending IAs were disposed of.

Ms Dashmesh Rice Mills versus Punjab National Bank — Banking and Recovery | DRT (2023)

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DEBTS RECOVERY TRIBUNAL-I, CHANDIGARH

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SA No.03/2022 M/s Dashmesh Rice Mills and others Versus Punjab National Bank and another

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15.07.2023 Item No.01

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Argued by:- Mr. AP Jagga, Counsel for the applicant. Mr. DK Gupta, Counsel for respondent bank. Mr. Vansh Malhotra, Counsel for auction purchaser/Varun Kumar.

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M/s Dashmesh Rice Mills and others (Applicants) have filed this Securitization Application under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, (SARFAESI Act) against Punjab National Bank and another (Respondents).

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In brief, the case of the applicants, as set up in the Securitization Application, is that applicant No.1 is a proprietorship concern and applicant No.2 is its proprietor. Applicant No.1 had availed CC Limit of Rs.30.00 Crores and Cash Credit Ware Housing Limit against Ware House receipts of Rs.15.00 Crore. Earlier, applicant No.1 was a partnership firm. However, with effect from 01.04.2020, it was converted into a proprietorship firm. Applicants had given the intimation of this fact to the Bank on 22.07.2020. Bank had objected to this conversion of partnership firm into a proprietorship firm. Applicants state that applicant No.3 is the wife of applicant No.2. On account of family obligations, she could not continue as a partner. The bank could not object to the change of the entity from partnership to the proprietorship firm. Applicants have

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alleged that applicant No.1 continued to pay interest till 30.09.2020. The renewal of the account was due on 28.07.2020. They had provided all the requisite documents to the bank and requested it to renew the account. They had also written a letter dated 22.07.2020 i.e. (Annexure A-1) to the bank. Since, the bank did not renew the account, on 01.11.2020 they also complained to the Zonal Manager of the bank (Annexure A-2). They had also made an application for grant of Emergency Credit Guarantee Line Scheme. Though, the bank got all the documents signed from them, the bank did not take any action in the matter and did not renew the loan account. On account of the non renewal of the account, they suffered irreparable loss. Though, the bank had granted the benefit of GECL to other borrowers, yet, it did not grant the same benefit to them. On 28.12.2020, the bank wrote a letter to them stating that Shri Ashwani Sidana, was not signing the requisite documents specially GECL Loan documents of Rs.7.30 Crores. Applicants alleged that Shri Ashwani Sidana, had refused to sign the documents as the bank was not renewing the loan account. On 31.03.2021, the bank declared the account of the applicants NPA. On 05.04.2021, bank wrote a letter to applicant No.3 invoking the guarantee. It is also alleged that the account of the applicants was running regularly. The bank turned a blind eye over their own illegality by not renewing the account. On 15.04.2021, they made detailed submissions to the bank stating that they were not at fault and the bank had not renewed their account legally. On 15.04.2021, bank issued the notice under Section 13(2) of the Securitization Act, claiming a sum of Rs.33,91,39,355.73p. The bank in the notice issued

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under Section 13(2) also mentioned that the applicants had also hypothecated the plant and machinery. In fact applicants had never hypothecated the plant and machinery. The plant and machinery is hypothecated only in the case of Term Loan. Applicants had not taken any Term Loan and in these circumstances, the question of their hypothecating plant and machinery did not arise. On 10.06.2021 they had filed detailed objections to the bank stating that the action of the bank was illegal. However, on 30.06.2021, the bank rejected their objections by passing a non-speaking order. It is also stated that the objections had been filed on behalf of the applicant No.1 and 2 since the bank had not served any Section 13(2) notice to applicant No.4 and 5. Accordingly, the objections were restricted to applicant No.1 to 3. It is also stated that the applicant No.2 and 3 are living separately from applicant No.4 and 5. It is also stated that though the bank had not served notice under Section 13(2) to applicant No.4 and 5, yet, they (Applicants No.4 and 5) had come to know of the notice under Section 13(2), and filed the reply. Applicants also alleged that after replying to their objections, on 18.10.2021, the bank issued the notice under Section 13(4) of the SARFAESI Act. Applicants challenged the notice under Section 13(2) as well as the notice under Section 13(4) of the Securitization Act in the SA. They alleged that their account had been declared NPA in contravention of the RBI guidelines. Their unit is registered as an MSME Enterprise. Accordingly, the period of default has to be 180 days and not 90 days. The bank admits that the applicant No.1 is an MSME unit. Since they are running an MSME unit, the bank was under legal obligation to consider their case for

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rehabilitation. Accordingly, the bank committed an illegality. Further, the plant and machinery had not been hypothecated by the applicants. They had also pointed out this fact in their objections. However, the bank brushed aside the same also. Applicants alleged that they had never taken any Term Loan. Accordingly, the question of hypothecation of plant and machinery did not arise. Moreover, the plant and machinery was already under hypothecation under some other person from whom the applicant had taken the loan and who has the first charge over the same. Further, the bank did not provide any hypothecation agreement in respect of plant and machinery to them. It is also alleged that the bank by passing a non-speaking order has committed an illegality. Further, the bank did not renew their account. It is the right of applicants to get their account renewed. Further, the bank did not provide the loan documents to them, despite the fact they had repeatedly written to them. The plea of the bank that they had supplied the documents to them is wrong, as the bank had not produced on the record any acknowledgement of having supplied the documents to them. Further, the bank did not apply its mind to the objections filed by them under Section 13(3A) of the Securitization Act. Further, notice under Section 13(2) was not served by registered post, which is mandatory. The bank has not produced any acknowledgement that the notice under Section 13(2) was duly served upon the applicants. The notice under Section 13(2) was also not affixed on the conspicuous portion of secured assets. The notice was also not published in the newspapers having wide circulation in the locality. The applicants also suffered on account of the non release of

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GECL. Further, the notice under Section 13(2) was not issued by the Authorized Officer who had been duly authorized by the Board of Directors. The notice was also not served upon the persons who were in occupation of the secured asset. On these broad facts, applicants filed this SA for setting aside demand the notice dated 15.04.2021 issued under Section 13(2) of the SARFAESI Act; reply of the bank dated 30.06.2021 and notice dated 18.10.2021 issued under Section 13(4) of the Act. The applicants also alleged that the bank be directed to produce all the documents on the record and it should be restrained from taking any coercive action and from creating any third party interest etc.

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This SA was filed on 21.12.2021. The Authorized Officer, in the reply, has alleged that initially applicants were granted the credit facilities by the bank in the year 1998. The credit facilities were enhanced and renewed from time to time. To secure, the loan, applicants had mortgaged their properties in favour of the bank. Applicants did not adhere to the financial discipline and their accounts became irregular. Vide letters dated 02.01.2021; 14.01.2021; 08.03.2021 (Annexure R-1), personally and telephonically, the bank had informed the applicants about the irregularities in the account and requested applicant No.1 to pay the overdue amount in the accounts with interest to avoid any legal proceedings. The bank also requested the applicants to submit the Audited Balance Sheet, VAT Returns and ITR. Since, the applicants did remove the irregularities, their accounts was declared NPA on 31.03.2021. Vide notice dated 05.04.2021

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(Annexure R-2), the bank informed applicants that in case they do not remove the irregularities, the bank would take action. On 15.04.2021, the bank issued notice under Section 13(2) (Annexure R-3) of the Act. On 10.06.2021, applicants filed objections to the notice under Section 13(2) of the Act. The bank had responded to the same on 29.06.2021 (Annexure R-4). On 18.10.2021, the bank had taken the symbolic possession. A copy of the possession notice was affixed on the property and the applicants were also informed about the same, vide notice dated 10.11.2021. The notice was published in ‘Financial Express’ and ‘Daily Chardikalan’. The bank sold the property mentioned at serial No.7. The auction purchaser deposited the whole of the sale consideration. The sale certificate of the same has been issued and the possession of the property has also been delivered to the auction purchaser. Further, the bank also sold land and plant of the Rice Sheller, which has been purchased by M/s Dashmesh Industries. The bank denied that the applicant is a proprietorship firm. It also denied that the plant and machinery was not hypothecated. It is alleged that plant and machinery worth Rs.2.42 crores had been purchased by the applicants from the loan of the bank and was hypothecated with the bank. It has been denied that the applicant is a proprietorship concern. Applicants, vide letter dated 15.04.2021 (Annexure A-6) had admitted that they were a partnership firm. The bank has denied that benefit of the moratorium from 01.03.2021 to 31.08.2021 was not granted to the applicants. It has alleged that during the Covid 19, the overdue interest payable by the applicants had been converted into CFITL account. The bank had sent many

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renewal requests and reminders to the applicants for submission of requisite papers for renewal of the account. However, the applicants did not furnish the same. The bank has alleged that vide letters dated 20.07.2020; 05.08.2020; 16.10.2020; 26.10.2020; and 24.03.2021 (Annexure R-17), it had requested the applicants to submit the requisite documents for the renewal of their accounts within stipulated period. However, vide letter dated 16.10.2020 and 30.10.2020 (Annexure R-18) the applicants informed the bank that they do not have requisite documents of fresh PAN Card; GST Registration Number and fresh registration under Partnership Act with Registrar of Firms. Applicants did not furnish any documents. The bank alleged that applicants had also filed complaint dated 01.11.2020 to exert pressure on the bank. The bank has alleged that after several requests, when the applicants made the request for Emergency Credit Guarantee Line Scheme (ECGLS), the bank deputed security and Documentation Manager to visit Jalalabad on 24.12.2020 for getting the loan documents executed. However, Ashwani Sidana (Applicant No.4) and Ranju Sidana (Applicant No.5) refused to execute the documents on account of family dispute among the applicants. Further, vide email dated 28.12.2020, the bank requested the applicants to get the documents executed from Ashwani Sidana (Applicant No.4) and Ranju Sidana (Applicant No.5). However, applicants did not come forward and did not cooperate with the bank. It is alleged that the account was not renewed on account of non cooperation by the applicants. The bank also denied that the interest was charged against the terms and conditions of the loan documents.

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The bank has alleged that its officers had visited the premises of the applicants on 28.07.2020; 28.01.2021; 08.07.2021 and 18.10.2021 (Annexure R-19) for renewal. However, applicants were persistently uncooperative. The bank also alleged that they had sent many emails dated 15.01.2021; 27.01.2021; 04.02.2021; 12.02.2021; 16.02.2021; 17.02.2021; 18.02.2021; 19.02.2021; 01.03.2021; 06.03.2021 and 23.03.2021 (Annexure R-20) asking the applicants to renew and regularize their accounts so that it could be saved from slipping into NPA. However, there was no response from the applicants. The bank officers also visited the firm of the applicant on 28.07.2020 and 28.01.2021 for inspecting the actual position of the stocks. However, applicants were non cooperative and most of times did not allow the bank officials to enter the premises. Vide letter dated 02.01.2021 (Annexure R-21), the bank informed the applicants that a stock auditor has been appointed in the loan account and the account is on the verge of slipping into NPA. However, the applicants did not allow the auditor to conduct the inspection. It is alleged that the bank had written many letters dated 20.07.2020; 05.08.2020; 16.10.2020; 26.10.2020 and 24.03.2021 (Annexure R-17) for renewal of the accounts by the applicants. However, applicants did not submit the requisite documents. The bank has alleged that they had duly responded to the objections of the applicants. The bank had sold the properties as per law. The account was classified NPA as per RBI guidelines. In substance, the bank denied all the averments of the applicants.

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This deserves to be mentioned that during the pendency of the SA, the bank issued the auction notice and in pursuance to the same, two properties were sold i.e. residential house and a plot. Though, the applicants have challenged the sale of the residential house, yet, they have not challenged the sale of plot. This also deserves to be mentioned that in respect of the sale, the bank has already issued the sale certificate and has also put the auction purchaser in possession of the property. During the pendency of the SA, applicants also challenged the sale notice in respect of the residential house. They also impleaded the auction purchaser as a party to the present SA. The amendment in respect of the SA for challenging sale was allowed. The applicants filed the amended SA and the bank has also filed reply to the amended SA.

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During the pendency of the SA, the bank also moved an application under Section 14 of the Securitization Act to the District Magistrate, Fazilka, for taking the possession of the secured assets. Vide order dated 06.12.2022, passed by the District Magistrate, Fazilka, the said application was allowed. On 05.01.2023, applicants also filed IA No.10/2023 for stay and setting aside order dated 06.12.2022 passed by the District Magistrate, Fazilka. Applicants alleged that the order dated 06.12.2022 passed by the District Magistrate, Fazilka is illegal null and void . The bank in its application under Section 14 of Securitization Act had not disclosed to the DM that the SA was pending before the Debts Recovery Tribunal. The bank had obtained the order from DM under Section 14 of the

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Securitization Act by concealing the facts. Further, the bank had not filed the affidavit with the DM containing nine points mentioned in Section 14 of the Act. The DM had not recorded his satisfaction. Accordingly, the order dated 06.12.2022 passed by the District Magistrate, Fazilka be set aside.

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In reply to the application filed by the bank, it alleged that the Tehsildar had affixed the possession notice on the secured assets. The physical possession of the secured asset was also given to the purchaser. The bank also alleged that order dated 06.12.2022 passed by the District Magistrate, Fazilka, is perfectly legal. Applicants had contested the application under Section 14 of the Act and had filed reply before the DM and after hearing the parties and recording his satisfaction, the DM had passed the order. The bank alleged that there is no merit in the IA and the same be dismissed.

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Applicants also filed IA No.11/2023 for restoration of the possession of the house which had been sold in the auction, of which the possession has been delivered to the auction purchaser. It is alleged that since order dated 06.12.2022 passed by the District Magistrate, Fazilka is illegal and null and void, the possession should not have been delivered to the auction purchaser. On 19.12.2022, applicants also filed IA No.1085/2022 for stay of order dated 06.12.2022 passed by the District Magistrate, Fazilka.

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I have heard Mr.AP Jagga, counsel for the applicant; Mr.DK Gupta, counsel for respondent bank and Mr.Vansh Malhotra, counsel for auction purchaser.

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DEBTS RECOVERY TRIBUNAL-I, CHANDIGARH

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Mr.Jagga has argued that applicant No.3 is the wife of applicant No.2. Since, applicant No.3 is a housewife and was not in a position to look after the business, the applicants requested the bank to convert the partnership firm into proprietorship concern. The due intimation of the same was given to the bank. Further, the applicants had never hypothecated the plant and machinery to the bank. However, the bank is claiming that the plant and machinery had also been hypothecated. Mr.Jagga submitted that the plant and machinery is hypothecated when a borrower takes a Term Loan to purchase the assets. In this case, the plant and machinery was not purchased by taking the loan from the bank. In these circumstances, the question of hypothecation of plant and machinery in favour of bank did not arise. Mr.Jagga further submitted that on 15.04.2021, the bank had issued notice under Section 13(2) of the Act to applicants No.1 to 3. This notice was received by applicants No.1 to 3, on 14.06.2021. Applicants No.1 to 3 had responded to the same on 21.06.2021. However, the bank did not address the issues raised by the applicants and rejected their objections by passing a non speaking order. Further, applicant No.4 and 5 were never served with the notice under Section 13(2) of the Act. However, when applicants No.4 and 5 came to know of the fact that the notice under Section 13(2) has been issued, they also responded to the same. Mr.Jagga further submitted that during the pendency of the SA, bank had approached the DM by filing an application under Section 14 of the Securitization Act. Vide order dated 06.12.2022, the said application was allowed. Mr.Jagga submitted that the bank had made a wrong statement before the DM.

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In the application under Section 14 of the Securitization Act, the bank had alleged that the applicants had not filed any objections in reply to the notice under Section 13(2) of the Act. It is a fact that the applicants had filed the objections on dated 21.06.2021 to the bank. This fact was concealed by the bank from the DM. Further, the Authorized Officer had filed a false affidavit before the DM that no objections had been received by the bank in pursuance to the notice issued under Section 13(2) of the Act. Further, the applicants were not given 15 days time. The DM also did not record his satisfaction in respect of the facts mentioned in the application under Section 14 of the Securitization Act. Mr.Jagga further submitted that applicant is an MSME unit. Accordingly, as per the circular dated 17.03.2016, issued by RBI, its case should have been placed before the designated committee, for review. However, the bank never put up the case of the applicants before the designated committee. Mr.Jagga submitted that the applicants have proved on the record that the bank had not followed the correct procedure under the SARFAESI Act. Accordingly, the SA be allowed; order dated 06.12.2022 passed by the District Magistrate, Fazilka be set aside; sale be set aside and possession of the residential house be restored to the applicants.

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Per contra , Mr.Gupta, counsel for respondent bank submitted that applicant No.1 is not a proprietorship concern. It is a partnership firm. Mr.Gupta submitted that though the applicants had written to the bank to change its constitution, yet, later on they had withdrawn their request and informed the bank that they will work as partnership firm. Further, applicants in the loan documents had admitted that they had

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hypothecated the plant and machinery. Mr.Gupta further submitted that applicants had mortgaged eight properties in favour of the bank and out of these eight properties, the bank has sold two properties. As far as two sold properties are concerned, one is a residential house which is in the name of Ms.Ranju Sidana and Ms.Vandana Sidana, which was sold by the bank by auction for Rs.1.25 crores. The other property is a plot, owned by applicant No.1. Whereas, applicants have challenged the auction of the residential house, yet, they have not challenged the auction of the plot. Mr.Gupta submitted that applicants had submitted objections in pursuance to the notice issued under Section 13(2) of the Act. The bank had duly responded to the same by passing a speaking order. The said order was also communicated to the applicants. Mr.Gupta further submitted that during the pendency of the SA, the bank had filed application under Section 14 of the Securitization Act before the DM, Fazilka, who had issued notice to the same to the applicants. After hearing the parties and recording his satisfaction, the DM had passed the order under Section 14 of the Securitization Act on 06.12.2022. The auction purchaser who had purchased the property in auction was not delivered the possession. The auction purchaser had approached the Hon’ble High Court which had issued notice to the DM. In the meanwhile, the DM had got the possession delivered to the auction purchaser. Mr.Gupta submitted that the exposure of the bank in respect of the applicants was more than 25 crores. Accordingly, the case of the applicants was not covered by the circular dated 17.03.2016 issued by RBI. At this, Mr.Jagga submitted that the Hon’ble Punjab and Haryana High Court

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DEBTS RECOVERY TRIBUNAL-I, CHANDIGARH

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in M/s Kirtiman Cements and Packaging Industries Limited and others Vs. State Bank of India and others , has held that in case the case of the applicants was not covered by the circular dated 17.03.2016, its case should have been considered as per RBI circular dated 01.07.2015. Mr.Gupta submitted that bank has complied with all the requirements which are required to be followed under the SARFAESI Act and there is no merit in the present SA and the same be dismissed.

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I have considered the rival contentions.

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At the outset, this deserves to be mentioned that as far as the contention of the applicants that it is a proprietorship concern and not partnership concern, is concerned, I am of the considered view that there is no force in the same. Applicants in their letter dated 01.11.2020 (Annexure A-2) have admitted that applicant No.1 will continue to work as partnership firm and not as proprietorship firm. 12. The further contention of the applicants that the plant and machinery had not been hypothecated is also without substance. Bank, in the reply, has categorically mentioned that the plant and machinery worth Rs.2.42 crores was purchased by the applicants out of the loan and was hypothecated with the bank. Bank had also mentioned this fact in the notices issued under Section 13(2) and 13(4) of the SARFAESI Act.

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I am of the considered view that there is no force in the contention of Mr.Jagga that the order dated 06.12.2022 passed by the District Magistrate, Fazilka, is illegal and deserves to be set aside.

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There is no denying the fact that the bank in its application filed under Section 14 of the Securitization Act, before DM, had wrongly mentioned that applicants had not filed any objections, yet, the fact remains that the DM had issued notice of the application under Section 14 of the Act to the applicants (though he was not under obligation to issue the notice) and the applicants had not raised this issue before the DM. It is admitted by the applicants that they had filed objections and bank had responded to the same. In these circumstances, the fact that the bank had wrongly mentioned before the DM that applicants had not filed any objections, pales into insignificance. I am of the considered view that there is no force in the contention of Mr.Jagga that the DM has not recorded his satisfaction to the application filed by the bank. I have perused the order dated 06.12.2022 passed by the DM. The DM had issued notice to the applicants. Applicants had been duly represented before the DM. The DM after considering the contentions of both the parties, had passed the order. I am of the considered view that there is no flaw in the order passed by the DM, Fazilka.

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I am of the considered view that there is also no force in the contention of Mr.Jagga that the bank should have considered the case of the applicants as per the circular dated 01.07.2015, issued by RBI. Applicants have not produced on the record the said circular. The contention has been raised only on the basis of the order passed by the Hon’ble High Court in M/s Kirtiman Cement case. In the said case, the Hon’ble High Court had considered the matter at the initial stage and the order was passed on the basis of the facts and circumstances

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of the case. The applicants have not made any such prayer in the SA. Further, a perusal of the reply of the bank, would show that they had written many letters to the applicants asking the applicants to submit the documents so that the account of the applicants could be renewed. However, applicants did not submit the documents. The applicants also did not allow the bank officials to inspect the stocks. The applicants also did not execute the documents on the ground that there were family disputes between them. From the perusal of the reply filed by the Authorized Officer, it is clear that the bank had reminded the applicants time and again to get their accounts regularized. Applicants admit that they had paid the interest only upto 30.09.2020. Admittedly, they did not service their accounts right from 01.10.2020 to 31.03.2021, when their account was declared NPA. At this stage, applicants cannot be allowed to say that the bank should have considered their case for restructuring as per circular dated 01.07.2015, when the applicants themselves did not submit the documents as required by the bank for renewal.

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I am of the considered view that there is no merit in any of the contentions raised by the applicants. I have also considered the case of the applicants in respect of the sale of the residential house by the bank through e-auction. Bank has followed proper procedure in auctioning the property. After auction, the possession was not delivered to the auction purchaser. The auction purchaser had approached the Hon’ble High Court and filed civil writ petition wherein the Hon’ble High Court had issued the notice to the District Magistrate. In the meanwhile, the District Magistrate delivered the

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possession to the auction purchaser. I have already held that the order dated 06.12.2022 passed by the DM, allowing the application of the bank under Section 14, is perfectly legal and valid. Accordingly, the question for restoration of the possession to the applicants does not arise.

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Having considered all the aspects of the case, I am of the considered view that there is no merit in the present SA and the same is hereby dismissed with costs. All the pending IAs, if any, are also disposed of, accordingly.

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File be consigned to record room after due compliance.

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(A S Narang) Presiding Officer Pronounced in open court. DRT-I, Chandigarh Manoj/15.07.2023

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Ms Dashmesh Rice Mills v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

Ms Dashmesh Rice Mills v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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