Dismissed

Ashoka Adhikary v. State Bank of India

DRT19 Dec 2023SA/274/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed an application under Section 17 of the SARFAESI Act challenging a sale notice. The Court held the application was not maintainable as the applicant failed to prove her status as a Class 1 heir via a Legal Heir or Succession Certificate, relying only on documents that did not establish her relationship to the deceased.

What did the court decide?

The sale notice dated 22/06/2023 and the application challenging it were dismissed. Pending interlocutory applications were also disposed of.

Ashoka Adhikary versus State Bank of India — Banking and Recovery | DRT (2023)

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DEBTS RECOVERY TRIBUNAL – 1, KOLKATA JEEVANSUDHA BLDG. 9^TH FLOOR, 42/C, J.L.NEHRU ROAD, KOLKATA – 700071

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BEFORE SHRI AMBUJA MOHAN DAS, PRESIDING OFFICER

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SA No. 274 of 2023

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Ashoka Adhikary

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Widow of Late Gopal Chandra Adhikary Residing at Vill 27, Bagti P.S. Mogra,District Hooghly.

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Applicants

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State Bank of India

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having office at Stressed Assets Recovery Branch Burdwan (Code-748817) Ulhas ,Gate No. 1 Pin 713104, Dist. Purba Burdwan West Bengal

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Authorised Officer, State Bank of India Stressed Assets Recovery Branch Burdwan (Code-748817) Ulhas ,Gate No. 1 Pin 713104, Dist. Purba Burdwan West Bengal

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Respondents.

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Present:

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For Applicant: Mr. Mr. S. Mukherjee, Ld. counsel

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For Respondents: Mr. Debasish Saha Ms. Rajashri Bhattachara Mr. Hemraj Adhikari

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J U D G E M E N T

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Delivered on 19^th December, 2023.

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The Sarfaesi Applicant as mother of Late Subrata Adhikari has filed this SA challenging Sale Notice dated 22/06/2023 contending that sale notice has not been issued to her and submits that Subrata Adhikari is dead. The Sale Notice has been served upon other legal heirs of Subrata Adhikari. It is contended that Sale Notice has not been issued to Applicant, Ms. Ashoka Adhikary, who has filed copy of Death Certificate wherein deceased Subrata Adhikari is described as son of

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Late Gopal Chandra Adhikari who died on 29/06/2022. Thereafter, Applicant has filed this affidavit with copy of voter identity card which describes Ms. Ashoka Adhikary as wife of Late Gopal Adhikari.

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Ld. Advocate for the Sarfaesi Applicant has contended that there is presumption of genuineness u/s 79 of the Indian Evidence Act of certified copy of public document. Ld. Advocate for the Applicant has relied upon the authority of Manoj @ Monu @ Vishal Chowdhury vs. State of Hariyana wherein Hon’ble Supreme Court of India held as follows:

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“ In Shiv Patta v. State of U.P., 2013 SCC OnLine All 14202 it was held that the family register is maintained in discharge of statutory duties under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly, date of death is maintained in discharge of statutory duty under Registration of the Birth and Deaths Act, 1969 and it is a public document within the meaning of section 74 of the Evidence Act, 1872. The certified copy of these documents is admissible in evidence under section 77 of the Evidence Act and carry presumption of correctness under section 79 of the Act. High Court held that in the absence of any evidence to prove that it was incorrect, its correctness is liable to be presumed under section 79 of the Evidence Act, 1872. “

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Ld. Advocate for the Respondent Bank has relied upon the Authority of Hon’ble Bombay High Court in the matter of Samina Arif Khan alias Dhanlaxmi Chandu Devrukar alias Samina Arif Khan but it is not relating to Notary public. They have filed notary rules and authority of the Karnatata High Court which are not relevant for the purpose of this case. .

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Death Certificate of Subrata Adhikari filed by the Applicant speaks that Subrata Adhikari died on 29/06/2022. In the Death Certificate father’s

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name is mentioned but mother’s name is not mentioned. Death Certificate is registered on 30/06/2022 and issued on 27/08/2022. This Death Certificate has been issued by the Sub Registrar (Birth & Death) of Kolkata Municipal Corporation on 27/08/2022. This is no doubt copy of public document. Presumption u/s 79 of the Indian Evidence Act 1872 is to the genuineness of the contents of the public documents. There is no contention in the Death Certificate that Ashoka Adhikari is mother of Subrata Adhikari.

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The Voter Identity Card also does not disclose that Ashoka Adhikary is mother of Subrata Adhikari. Applicant has not filed any Legal Heir Certificate or Succession Certificate which can prove that the Applicant is the successor of Late Subrata Adhikari. In absence of reliable evidence that applicant is class 1 heir of Late Subrata Adhikari, application under section 17 of the Sarfaesi Act challenging the Sale Notice is not maintainable. Hence, it is ordered:

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O R D E R

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SA/274/2023 is dismissed on contest against the Respondents. Consequently, pending I.A.s are also disposed of.

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Copy of the Judgment/Final Order be uploaded in the Tribunal’s website.

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File is consigned to the Record Room.

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(Dictated to P.S., transcribed by her, corrected, signed and pronounced by me in the open Court on this the day 19^th December, 2023.

(Ambuja Mohan Das)

Presiding Officer

	Order Sheet (continuation)
Case NO. S	A/274/2023 Ashoka Adhikary vs. State Bank of India & Ors.
Date of the Order	Order with Signature	Office action with date and dated Signature of Parties when necessary
19/12/2023	Present:
	For Applicant: Mr. S. Mukherjee, Ld. counsel
	For Respondents: Mr. Debasish Saha Ms. Rajashri Bhattachara Mr. Hemraj Adhikari
	O R D E R
	SA/274/2023 is dismissed on contest against the
	Respondents. Consequently, pending I.A.s are also disposed of. Copy of the Judgment/Final Order be uploaded in the Tribunal’s website. File is consigned to the Record Room. (Dictated to P.S., transcribed by her, corrected, signed and pronounced by me in the open Court on this the day 19^th December, 2023.
	(Ambuja Mohan Das) Presiding Officer

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Ashoka Adhikary v. State Bank of India

Case brief

What is this about?

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Ashoka Adhikary v. State Bank of India

Case brief

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