Dismissed

Arvind Kumar v. Bank of Baroda

DRT7 Dec 2023SA/81/2022

Case brief

AI extract

What is this about?

In this application under Section 17 of the SARFAESI Act, the applicant sought quashing of recovery actions due to alleged procedural defects, non-disclosure of loans, and limitation delay. The Tribunal dismissed the application primarily because the applicant failed to properly implead all stakeholders including guarantors required under the contract.

What the court decided

AI extract

Arvind Kumar versus Bank of Baroda — Banking and Recovery | DRT (2023)

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DRT.PATNA

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SA81Of2022lJl

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DEBTS RECOVERY TRIBUNALPATNA

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Presiding Officer :Shri Kaushalendra Yadav

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SA- 81 of 2022

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Arvind Kumar, S/o Sri Suresh Ram, R /o - Nagawa Khas Nagwa, Anchal & P.S -Naubatpur, Patna -801109.

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•........Applicant

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Versus

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Bank of Baroda through Zonal Manager, Zonal Office, Boring Canal Road, Patna -800001.

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The Authorised Officer, Bank of Baroda, Mohammadpur Kurgi Branch, Phulwari,I Patna -801105.

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The Branch Manager, Bank of Baroda, Mohammadpur Kurgi Branch, Phulwari,I Patna -801105.

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--respondents

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Present:

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Forthe Applicant : Sh. Nishant Ranjan, Advocate

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Forthe Respondents Bank : Sh. Manish Kishore,Advocate

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Dated: 07.12.2023

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JUDGMENT

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Present application u/s 17 of SARFAESI Act has been filed with a prayer to quash entire SARFAEsl action taken against the properties of applicant alongwith the possession notice. Alongwith present application the applicant has also filed a Limitation Petition with the prayer to condone the delay in filing of SA.

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The brief fact of the case is that the applicant availed Overdraft Facility to the tune of Rs.9.11 Lacs from the respondent bank. On default in repayment of the dues of the bank, the account of the applicant was

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DRT.PATIVA

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sA 81 Of 2022 rm

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declared as NPA on 28.09.2021. Subsequently, the bank initiated SARFAESI Action against the borrower and issued demand notice u/s 13(2) dated 01.10.2021 calling upon the applicant to make the payment of Rs.8,04,996.00. Thereafter, Possession Notice dated 13.12.2021 was issued. Aggrieved from the Possession Notice dated 13.12.2021, the present SA has filed alongwith Limitation Petition.

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On the point of limitation it is submitted by the ld. Counsel of applicant that present application has been filed with the delay of 56 days. After information of possession notice the applicant was suffering from cold and fever. After recovery from illness, the applicant sent a legal notice to the bank but the bank did not reply the same. The applicant being poor person consumed the time in arranging the money for filing the present application. Thereafter, present application has been filed. There is no deliberate latch on the part of applicant.

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It is further submitted that the applicant availed the Over Draft facility and Bike Loan from the respondent bank. The applicant was repaying the EMI regularly but due to Covid 19, the business of the applicant suffers from heavy loss resulting the account was declared as NPA. The respondent bank sent demand notice dated 01.10.2021 issued u/s 13(2) of the SARFAESI Act but in the said demand notice number of loan has not been disclosed. There were six loan accounts opened in the name of applicant by the bank without taking the consent of applicant only to take the interest. On 25.06.2020 total outstanding amount was Rs.6,95,400.98 but after merger of Vijya Bank with the Bank of Baroda the amount has been inflated to Rs.13,90,831.46. The bank issued Possession Notice dated 13.12.2021 u/s 13(4) of the act but whether the possession notice was paste'd on secured asset and also published in two leading newspapers or not, not knows to the applicant..

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DRT.PATNA

sA8iof2022rji

On the contrary, ld. Counsel of the respondent bank submits that the present application is barred by limitation. Due to insufficient turnover, the account was classified as NPA on 28.09.2021. The Business Loan and Bike Loan was originally sanctioned by the Vijay Bank which was later on after merger migrated to the Bank of Baroda. Apart from this credit facility of Rs.42,00/- was also availed by the applicant from Vijya Bank was also migrated to the Bank of Baroda. The demand notice dated 01.10.2021 issued by the bank and the same received by the applicant as also admitted in his application. During Covid 19 as per direction of RBl to extend the help, the overdue components were converted into term loan. Accordingly, Data Centre of the Bank granted financial help of Rs.40,171/- on 25.09.2020 and Rs.89,000/-under BGECL Scheme to the applicant by different account number. Since, the applicant failed to repay the dues of the bank, the demand notice was served clubbing entire dues of the accounts. The applicant has acknowledged the four account by letter dated 27.11.2020 annexed with counter affidavit. The Possession Notice dated 13.12.2021 was served to the applicant and took symbolic possession by affixing the same on the property. The possession notice was also published in Hindustan and Hindustan Times on 19.12.2021.

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I have heard Ld. Counsel for the parties and gone through the record.

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The present application has been filed with the delay of 56 days and the applicant taken the ground that he was suffering from illness but no documentary proof has been annexed with the limitation petition. However it has not been alleged that the measures u/s 13 (4) of the Act have come to an end as provided u/s 13 (7) of the Act, the applicant has right to challenge the action till the measures are complete.

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SA81Of2022lJl

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The applicant alleged that in the demand notice number of loan has not been disclosed. There were six loan accounts opened in the name of applicant by the bank without taking the consent of applicant only to accumulate the interest.

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On perusal of records it appears that the details of the amount demanded were not disclosed in the demand notice. Although the respondent has filed a copy of notice prior to demand notice mentioning the details of dues but as required under S.13(2) of the Act, the details should accompany the demand notice. The respondent also failed to prove the delivery of possession notice to all stakeholders, no postal receipt or the tracking report has been filed to prove it. The evidence to prove the affixation of notices at the conspicuous part of the assets has not been proved. Legible copies of the publication with its details have not been proved.

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10.At the same time it is important to note that the notice under section 13 (2) of the act dated Olst October 2021 indicates that the respondent bank has addressed the aforesaid notice to the firm M/s Jai Mata Di Engineering Workshop and its proprietor Mr Arvind Kumar who is the applicant of this application also to the guarantor Mr Raj Kamal Kishor but the applicant did not implead the guarantor as party. It is important to mention here that the SARFAESI Action is always against the property of the guarantor and the owner of the property as well as the guarantee of the contract has not been completed as a party, so the controversy involved in this case cannot be effectively decided without impleading all the stake-holders mentioned in the contract. In such circumstances despite of the fact that the SARFAEsl action initiated by the respondent Bank suffers the defects as mentioned above no relief can be granted to the applicant as the application has not been filed properly impleading all necessary parties disclosing their

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SA 81 Of 2022 lJl

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contractual status. Accordingly, present securitization application deserves dismissal.

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ORDER

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The application under Section 17 of the SARFAESI Act filed by Arvind I(umar, is dismissed with all pending lAs if any. No order for costs.

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....._o..-.I.``-(..i.-::...,..:-,..a`,

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[KaushalendraYadav]

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Presiding Officer

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Debts Recovery Tribunal, Patna

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Judgment signed, sealed, dated and pronounced in the open court on this o7TH Day of December, 2023.

IA A+~ , i 4~ \

[KaushalendraYadav]

Presiding Officer

Debts Recovery Tribunal, Patna

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DEBTS RECOVERY TRIBUNAL, PATNA

Arvind Kumar v. Bank of Baroda

Case brief

What is this about?

What the court decided

Arvind Kumar v. Bank of Baroda

Case brief

What is this about?

What the court decided

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