The Debts Recovery Tribunal dismissed a securitization application challenging a bank's demand and possession notices. The bank proved the mortgaged property was converted to industrial use and the applicant failed to repay dues despite notices.
Securitization Application was disposed of as dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court of the Presiding Officer Debts Recovery Tribunal, Jaipur
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DEBTS RECOVERY TRIBUNAL, JAIPUR PRESIDING OFFICER: SH. VIVEK SAXENA
SA No.- 219/2022
M/s Guru Kripa Sand Stone & Art through proprietor –Sh. Sahdev Ram S/o Sh. Jalaram Mali R/o Gadri, post Ustra, Tehsil-Bhopalgarh, DistrictJodhpur 342603.
.........Applicant
Versus
........Respondent Bank
Present :-
Shri Vishwas Shukla, Counsel for the applicant
Shri Anil Kumar Sharma, Counsel for the Respondent Bank/FI
This Securitization Application was filed by the SA applicant on 22.04.2022, being aggrieved by the actions taken by the respondent bank .
Vide order dated 13.05.2023 the respondent bank was directed to file reply to SA and they were directed to give two weeks advance notice before taking any coercive actions with regard to possession of the subject mortgaged property.
Reply to SA was filed on 08.07.2022 and arguments were finally heard.
In Para no. 5.1 of the SA it is admitted that the applicant is a borrower who availed loan facility of Rs. 18.38 Lacs as term loan with CC limit for Rs.
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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur
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3.45 Lacs, through letter annexed at Annexure-A/1, from the respondent bank.
In Para 6.2 of the SA it is admitted that the demand notice dated 10.11.2021, issued by the respondent bank was served upon the SA applicant on or about 15.11.2021, it is also submitted that during the said demand notice the account was declared as NPA on 30.04.2019. It is claimed in Para 6.2, that the account was not irregular as the applicant was continuously maintaining the account and depositing the money, therefore, it is alleged that the account was declared as NPA, without following the guide lines of RBI and mandatory requirements of provision of SARFAESI Act of 2002. Copy of the demand notice and statement of account are at Annexure A/2 and A/3 to the SA respectively.
Possession notice dated 02.04.2022 was affixed at the subject mortgaged property and the applicant claimed that the details of mortgage property i.e. Property 624/3 village- Gaderi, Tehsil- Bhopalgarh, District- Jodhpur, are not correct in the light of copy of Jamabandi dated 02.04.2022 is filed at Annexure A/5 of the SA.
In Para no. 6.5, it is submitted that the applicant took out all efforts to get the account settled and he requested to the respondent bank to withdraw all the proceedings initiated by them under the provisions of SARFAESI Act of 2002, but the respondent bank failed to so.
In the grounds of the SA following objections are taken:-
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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur
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Based on these grounds it was prayed that the demand notice as well as possession notice is required to be quashed and set aside.
Along with SA Annexure-1, Sanction Letter, at Annexure-A-2, copy of demand notice, at Annexure A/3 copy of statement of account, at Annexure A/4 downloaded copy of Jamabandi dated 16.04.2022 and at Annexure A-5 copy of possession notice dated 02.04.2022, were enclosed.
Along with reply copy of Letter of Arrangement along with title deed are filed at Annexure D/1 and the respondent bank has filed copies of letters dated 10.01.2019, 29.01.2019, 11.02.2019, 29.03.2019 and 08.04.2019 (Annexure D/2 to D/6), copy of legal notice dated 15.05.2019, dated 16.03.2021 (Annexure D/7 and D/8), statement of account at Annexure D/9 is also filed.
Ld. counsel for the applicant argued that in the line of SA and Ld. counsel for the respondent bank objected the grounds taken by the Ld. counsel for the applicant.
Heard arguments and perused the record.
The only issue which requires consideration is that whether property so mortgaged is in fact is a agricultural land or not?
As per Annexure A-1 of the Sanction Letter filed by the SA applicant, it is clear that the security was created as primary security as hypothecated of
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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur
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entire fixed assets including equitable mortgage of factory land and building situated village Gaderi Tehsil Bhopalgarh Dist. Jodhpur in the name of firm having approx. value of Rs. 16.81 Lacs after complete of the project and collateral security was of extension of charge by way of hypothecation of entire current assets including inventory, receivable and all other current assets.
From the perusal of demand notice, as per Schedule-B, details of outstanding amount is mentioned so, the objection with regard to bifurcation of outstanding amount is not liable to be accepted and accordingly, the same stands disposed of as dismissed.
With regard to issue of mortgage of the property, details of subject mortgaged property are mentioned at page no. 19 of the SA and from the letter of arrangement dated 20.12.2019, which was filed at Annexure D-1, as per description of immovable property as collateral security is, 624/3 village- Gaderi, Tehsil- Bhopalgarh, District- Jodhpur having total area 1724 sq. ft. In this letter of arrangement it is no where mentioned that the subject immovable property is an agricultural land and arrangement letter is having signatures of Sh. Sahdev Ram who is proprietor of the SA applicant firm. From the letter of arrangement, so signed by the SA applicant, it is clear that he mortgaged the subject property with respondent bank and the subject mortgaged property was gifted to him through Gift Deed dated 06.08.2012 by Sh. Jalaram Mali in favor of SA applicant who is signed and in the said gift deed at page no. 2 it is specifically mentioned that “ गई गई ग 1.5 . . प ”
Ld. counsel for the respondent bank rightly pointed out that the said mortgaged property is not an agricultural land because of conversation order was passed on 21.11.2012 by Sub- Divisional Officer, Tehsil Bhopalgarh, District- Jodhpur in which the area of property situated at Khasra no. 624/3 village- Gaderi, Tehsil- Bhopalgarh, District- Jodhpur,
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Court of the Presiding Officer Debts Recovery Tribunal, Jaipur
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was converted for the purpose of industrial use and copy of map is also field at page no. 29 to reply.
Ld. counsel for the respondent bank also argued that at the time of availing credit facility the property was not within the category of agricultural land, therefore, the objection taken by the applicant that the property is an agricultural land is completely based on after thought story as the applicant do not want to repay the outstanding amount.
I have perused the letter dated 21.09.2012, issued by the Sub-Divisional officer, Bhopalgarh, Distt. Jodhpur and found that the property situated at 624/3 village- Gaderi, Tehsil- Bhopalgarh, District- Jodhpur was converted for the purpose of industrial use, the said property was mortgaged by the SA applicant through arrangement letter and as per Gift Deed also, the property so mortgaged is mentioned as “ ”. The applicant committing default and failed to deposit outstanding amount since 10.01.2019 as the respondent bank gave total five notices to the SA applicant to either to get the account regularized and these notices are sufficient to show that the respondent bank gave sufficient opportunity to the SA applicant to save their account from being classified as NPA but the applicant failed to deposit any amount and therefore, in my considered opinion the SA applicant do not deserve in leniency.
Therefore, the actions initiated by the respondent bank are as per law. Accordingly, this Securitization Application filed by the SA applicant, being devoid of any merit stands disposed of as dismissed.
Copy of the order be given free to the concerned parties.
File be placed before the Registrar for compliance after compliance file be consigned to record, as per rules.
(VIVEK SAXENA) Presiding Officer DRT, Jaipur
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2 issues framed by the court
Whether the mortgaged property is agricultural land attracting SARFAESI immunity.
Whether the bank complied with mandatory pre-requisites under SARFAESI Act before taking possession.
1 provisions across 1 enactments
M/s Guru Kripa Sand Stone & Art
State Bank of India Branch – Bhopalgarh
State Bank of India, Zone-3, Administrative Office, Jodhpur
Vivek Saxena
As recorded by the court registry
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