Dismissed

Dinesh Prasad v. Icici Bank Limited

DRT19 Apr 2023SA/38/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed an application filed under Section 17 of the SARFAESI Act seeking to quash a possession notice. The Tribunal held that while the bank failed to prove individual service of the notice to the applicant, the bank demonstrated publication in newspapers and affixation on assets, and other family members were not impleaded to rebut service.

What did the court decide?

The application and all pending issues with respect thereto are dismissed; parties to bear their own costs.

Dinesh Prasad versus Icici Bank Limited — Banking and Recovery | DRT (2023)

DRT,PATNA

SA38of 2022 [J]

DEBTS RECOVERY TRIBUNAL PATNA

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Presiding Officer: Shri KaushalendraYadav

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SA- 38 of 2022

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Dinesh Prasad Son of Awadh Bihari Prasad58, Kanhauli, Town - Muzaffarpur, District - Muzaffarpur 842001.

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.........Applicants

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Versus

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The Authorized Officer, ICICIBank Limited, Zonal Office, Plot No. 68, Sahdeo Mahto Marg, Patna- 800001.

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--respondents

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Present:

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For the Applicant : Dr. Binod Bihari Sinha,Advocate Forthe respondents Bank : Sh.Shahil Kumar,Advocate

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Dated: 19.04.2023

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JUDGMENT

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Present application u/s 17 of SARFAESIAct has been filed with a prayer to quash entire SARFAESIaction taken against the properties of applicant alongwith the possessionnotice.

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The brief facts of the case are that the applicant is proprietor of M/s Maa Baglamukhi Communication availed financial assistance, credit facilities from the respondent Bank. Due to defaults on the part of the borrower in repayment, the account was classified as NPA on 30.12.2019. Subsequently, the bank initiated SARFAESIAction against the borrower and issued demand notice u/s 13(2) dated 12.10.2020 calling upon the applicant to make the payment of Rs.21,38,754.10. Further possession notice dated 10.01.2022 u/s 13(4) of the SARFAESIAct was issued. Aggrieved from the possession notice, this SA has been filed by the applicant.

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It is submitted by the Id. Counsel of applicant that on receipt of demand notice dated 12.10.2020 issued u/s 13(2) of the Act. The applicant made a representation/objection with the bank u/s 13(3-A) which was disposed of by the bank vide letter dated 10.11.2020. In the said representation the applicant

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DRT,PATNA

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SA 38 of 2022 [J]

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requested therein to provide reasonable time to whip out the prevailing liability. After several persuasion of the applicant, the matter was settled between parties and the applicant started its repayment and paid Rs.8,20,OOO/-against the demand notice but due to illness of the wife further payment could not be made. Thereafter, the bank issued a possession notice dated 10.01.2022 which has neither been served to the applicant nor published in two leading newspapers. The bank failed to comply with the provision of the Act and failed to comply Rule 8(1) and (2) of the Security Interest (Enforcement) Rules,2002.

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On the contrary, Id. Counsel of the respondent bank submits that due to defaults in repayment, the account of the borrower was classified as NPAon 30.12.2019. Subsequently, the bank initiated SARFAESIAction against the borrower and issued demand notice u/s 13(2) dated 12.10.2020 and sent to the applicant as also admitted by the applicant. On receipt of demand notice, the applicant had submitted its representation/objection against demand notice which was duly disposed of by the bank vide letter dated 10.11.2020 and sent to the borrower. Thereafter, the possession of property was taken by issuing possession notice dated 10.01.2022 u/s 13(4) of the SARFAESIAct and the same has been sent to the borrower. The possession notice was published in two newspapers namely Sanmargand Morning India on 15.01.2022. The possessionnotice was also affixed on the secured assets.

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I have heard Ld.Counselfor the parties and gone through the record.

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It has been alleged that possessionnotice issued u/s 13(4) of the SARFAESIAct has not been served to the applicant. The respondent bank had also failed to publish the possessionnotice in two leading newspapers.

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On perusal of records it appearsthat the demand notice was sent to the applicants as also admitted by the applicant in its application. Thereafter, the applicant submitted its representation against demand notice which was disposed of by the bank vide letter dated 10.11.2020and sent to the borrower. It has been submitted on behalf of the respondent that thereafter, the possession notice was published in two newspapers namely 'Sanmarg' and 'Morning India' on 15.01.2022. The possession notice was also affixed on the secured assets. To prove this fact Annexure 5, 6 & 8 have been filed. The Annexure -7 of the counter affidavit is photocopy of possessionnotice dated 10.01.2022 u/s 13(4) of the SARFAESIAct. But the respondent bank failed to file any proof regarding individual service of

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SA 38 of 2022 [J]

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DRT,PATNA

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possessionnotice to the applicant either by post or personal delivery. As such the individual service of PossessionNotice on the applicant could not be proved.

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it is also important to mention here that the Demand notice (Annexure-1 of the application) reveals that the said notice was sent to Smt. Asha Devi & Sri Vikash Kumar Nandan also. Address of these two other persons is the same asthat of the applicant. These persons have neither been implemented as party to this application nor it has been said specifically by filing their affidavit that they did not receive such possessionnotice. Failing which there is no option except to draw an adverse inference. It appears that these persons have not been made party to conceal the fact of service of notice to them being adult members of the family residing under one roof.

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In view of the above discussion,the application deservesto be dismissed.

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ORDER

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The application under Section 17 of the SARFAESIAct filed by Dinesh Prasad,with all pending lAs is dismissed. In view of the circumstances of the caseparties shall bear their own cost for the litigation.

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Presiding Officer

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Debts RecoveryTribunal, Patna

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Judgment signed, sealed, dated and pronounced in the open court on this 19TH Dayof April, 2023. e-:

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e-: v"? \ '" .-yo _'-.,.0_

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[KaushalendraYadav]

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Presiding Officer

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Debts Recovery Tribunal, Patna

Dinesh Prasad v. Icici Bank Limited

Case brief

What is this about?

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Dinesh Prasad v. Icici Bank Limited

Case brief

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