Dismissed

Sri Animesh Barman v. Yes Bank

DRT7 May 2024SA/240/2023

Case brief

AI extract

What is this about?

This SARFAESI application challenged a bank's demand and possession notices alleging procedural irregularities and NPA classification. The Tribunal rejected allegations of blank signature affidavits and confirmed the account default. It upheld the lower court's order allowing possession and dismissed the application and stay petitions.

What did the court decide?

The SARFAESI application, IA/2361/2023, and IA/2723/2023 were dismissed; the interim order of status-quo was vacated.

Sri Animesh Barman versus Yes Bank — Banking and Recovery | DRT (2024)

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DEBTS RECOVERY TRIBUNAL – 1, KOLKATA JEEVANSUDHA BLDG. 9^TH FLOOR,

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42/C, J.L.NEHRU ROAD, KOLKATA – 700071

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BEFORE SHRI AMBUJA MOHAN DAS, PRESIDING OFFICER

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SA/240/2023

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Sri Aniumesh Barman, Son of Late Golok Chand Barman, 58, N.C. Road, P.O- Bhadrakali, P.S- Uttarpara, DistHooghly, Pin- 712232

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Applicant

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Versus

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1. The Chief Manager, Yes Bank Ltd., a corporate under the Banking Companies Act, (Acquisition and Transfer of undertaking) having its Registered & Corporate Officer, incorporated under the Banking Company within the meaning of section 5( C ) of the Banking Regulation Act, 1949, Companies Act, 1956, and having its office at, Yes Bank House, Western Express Highway, Sentra Cruz east, Mumbai- 400055.

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1. Assistant General Manager, Registered Office & Corporate Office, Yes Bank Ltd., Yes Bank House, Western Express Highway, Sentra Cruz east, Mumbai- 400055.

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1. Authorised Officer, Registered Office & Corporate Office, Yes Bank Ltd., Yes Bank House, Western Express Highway, Sentra Cruz east, Mumbai- 400055.

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1. The Branch Manager, Yes Bank Ltd., 56E Hemanta Basu Sarani, Dulhousie Stephen House, 1^st Floor, Kolkata700001

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……………….Defendants

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Present:

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For Applicant: Mr. Narayan Chandra Das, Ld. Advocate

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For Respondents: Ms. M. Kanji, Ld. Advocate

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J U D G E M E N T

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Delivered on 7^th May, 2024

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The Sarfaesi Applicant has filed an application under section 17(1) of the Sarfaesi Act, 2002 challenging the demand notice dated 13/02/2023 and possession notice dated 08/06/2023. The applicant has pleaded that the Respondent Bank sanctioned a loan of Rs.14,00,000/- with interest @ 10.75% on monthly repayment instalment amount of Rs.14,214/-, to the applicant against hypothecation and mortgage of property of land and building measuring about 1 Katha 12 Chattak 08 sqft. situated at Mouja- Koutrang, JL No. 08. Khatian No. 2392, RS Khatian No. 384, LR Dag No. 4630, RS Dag No. 1867, Holding No. 52, Dharamtala Lane, Ward No. 2, Ward No. 2, under Uttarpara Koutrang Municipality, Hooghly having covered area of 838 sq.ft. at 1^st floor and open terrace of 197 sqft. to together with stair on the ground floor of 116 sq.ft. covered area, constructed upon the said land. The Applicant annexed the loan sanctioned letter marked as Annexure A.

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It is alleged by the Sarfaesi Applicant that the Respondent Bank took signature of the Applicant by pressure on blank printed documents and also on the blank judicial stamp papers without knowing and going through the nature of the documents. It is also alleged that under pressure of the Bank, at the time of the sanction of House building loan, the applicant

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mortgaged the property and filed affidavit. The applicant further contended that he was depositing equated monthly instalments (EMI) regularly. The applicant repeatedly requested the Respondent Bank to send him a copy of the statement of accounts to know the actual position of the home loan but the Respondent Bank neglected to give the copy of Bank statement.

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The applicant further contends that he has paid substantial amount to the respondent Bank but the Respondent Bank issued demand notice classifying the account as NPA on 13/01/2023 claiming a sum of Rs.17,02,211.81/calculated as on 13/02/2023 by demand notice issued on 13/02/2023. It is alleged by the applicant that repayment scheduled differs from the sanction letter.

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The applicant submitted a representation after receiving the demand notice through Advocate on 06/05/2023. The Respondent Bank replied to the representation mechanically without replying the contention which was raised by the applicant. The applicant also annexed the representation as Annexure ‘C’ and reply of the representation by the Bank vide Annexure D. It is contended by the applicant that he was regularly depositing EMIs. It is also alleged that on 10/01/2023 the officials of the Bank entered into the house of the applicant with some goons. It is alleged by the applicant that in the demand notice, the Respondent Bank has not furnished the

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details of the account. On the above grounds the applicant prayed to set aside the demand notice dated 13/02/2023 and possession notice dated 08/06/2023 and injunction against the Respondent Bank from taking possession of the property of the applicant and also interim injunction.

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The applicant has also filed two IAs bearing no. IA/2361/2023 and IA/2723/2023 challenging the order of the Ld. Chief Judicial Magistrate (CJM), Serampore dated 29/08/2023 on the grounds which the applicant has taken in the SA.

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Respondent Bank has filed affidavit in opposition to the SA denying the pleadings of the applicant. The Respondent Bank has contended that the loan was sanctioned for Rs.14,89,732/with some terms and conditions which were accepted by the applicant by executing loan agreement and creating equitable mortgage over the property, but the applicant failed to repay the loan amount for which the account became NPA as per the RBI guidelines. The Respondent Bank issued demand notice on 13/02/2023 which was received by the Respondent Bank on 06/05/2023 which is beyond the statutory period of 60 days. The authorised officer of the Respondent Bank after the expiry of the 60 days issued a notice under section 13(4) of the Sarfaesi Act, 2002 and affixed the same on the conspicuous part of the property and published the same in two newspapers in

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Financial Express in English and Sangbad Pratidin in Bengali on 14/06/2023. The Respondent Bank has annexed the Possession Notice, affixture of Possession Notice, service of Possession Notice, publication of Possession Notice vide Annexure B, B1, B2. The Respondent Bank para wise denied the pleadings of the applicant and prayed for the dismissal of the Sarfaesi application.

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Respondent Bank also filed combined affidavit of opposition against IA/2361/2023 and IA/2723/2023. Respondent Bank has contended that as per the order of the Ld. C.J.M., the Authorised Officer of the Respondent Bank took possession of the secured property and prayed for dismissal of both the IAs.

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The S.A. and I.As were heard on 09/02/2024. There was an order dated 09/02/2024 wherein the parties were directed to maintain status-quo of the property. The order dated 22/02/2024 speaks that Ld. Counsel for the Respondent Bank submitted before this Tribunal that before passing order of statusquo on 09.02.2024, the Bank has taken possession of the property on 09/01/2024.

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So far as the allegation of the applicant is concerned that the Respondent Bank took signature of the applicant on some blank documents, the said fact was alleged in the Sarfaesi application which was filed on 17/07/2023. Loan was sanctioned on 06/12/2019, the applicant did not make such allegations before

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the Bank prior to filing of the SA. The applicant is required to abide with the terms and conditions of the loan as per the agreement. This allegation of taking signature on the blank forms is not sustainable. It is alleged by the applicant that the Respondent Bank did not issue statement of account in the demand notice. The applicant has also annexed the statement of account. The Respondent Bank has also annexed the statement of account in their objections. The statement of account filed by the applicant which the Respondent Bank issued is for the period of 20/07/2023 to 13/02/2023. The statement speaks that the amount deposited by Cheque of Rs.17,601/- dated 17/10/2022 bounced due to insufficient fund. The applicant did not pay the instalment. Similarly, the amount of Rs. 7601/deposited by Cheque on 16/11/2023 was also bounced due to insufficient fund. 10. Similarly, the payment by check of Rs. 7601/- pm on 15/12/2022 was also bounced for insufficient fund. This statement of account speaks that the amount paid by the applicant by Cheques were not honoured due to insufficient fund. Similarly, the statement of account filed by the Respondent Bank also speaks of dishonour of Cheques deposited by the applicant. Therefore, the account became NPA due to default of the applicant as per the RBI guidelines.

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The Respondent Bank issued demand notice demanding a sum of Rs.17,02,281/- due as on 13/01/2023 within 60 days.

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Thereafter, the Respondent Bank issued possession notice which was received by the applicants and affixed the possession notice on the conspicuous part of the property and published the same in two newspapers namely Sangbad Pratidin in Bengali and Financial Express in English on 14/06/2023.

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The measures taken by the Respondent Bank are in accordance with the Sarfaesi Act and Rules. Thereafter, the Respondent Bank obtained the order of the Ld. C.J.M, Serampore. Ld. CJM passed order as per Section 14 of the Sarfaesi Act, 2002. There is no illegality in the order of the Ld. CJM. The Respondent Bank ultimately took possession of the secured property on the basis of the order of Ld. CJM dated 29/08/2023. Hence, there is no violation of Sarfaesi Act and Rules by the Respondent Bank in issuing the demand notice, classifying the loan account as NPA, in issuing the possession notice, taking possession of the secured property on the basis of the order of the Ld. C.J.M, Serampore, Hooghly. Therefore, the SA and both the IAs are liable to be dismissed. It is ordered as follows:

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O R D E R

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i) The SA/240/2023, IA/2361/2023 and IA/2723/2023 are dismissed on contest against the Respondent Bank.

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ii) Interim order of status quo dated 09/02/2024 is vacated.

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iii) Consequently, other pending I.A.s ,if any, 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 Stenographer., transcribed by him, corrected, signed and pronounced by me in the open Court on this the day 7^th May, 2024.

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(Ambuja Mohan Das)

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Presiding Officer

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Ord	er Sheet (continuation)
Case NO. SA/240/2023	Sri Aniumesh Barman vs. Yes Bank Ltd. ors.	&
Date of the Order	Order with Signature	Office action with date and dated Signature of Parties when necessary

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07/05/2024	Present:
	For Applicant: Mr. Narayan Chandra Das, Ld. Advocate For Respondents: Ms. M. Kanji, Ld. Advocate Matter was heard in open Court on this the day of 03.04.2024. The detailed order in seven pages annexed separately. The gist of the order is as follows: O R D E R
	i) The SA/240/2023, IA/2361/2023 and
	IA/2723/2023 are dismissed on contest against the Respondent Bank.
	ii) Interim order of status quo dated 09/02/2024 is vacated.
	iii) Consequently, other pending I.A.s ,if any, 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 Stenographer., transcribed by him, corrected, signed and pronounced by me in the open Court on this the day 7^thMay, 2024.
	(Ambuja Mohan Das)
	Presiding Officer

Sri Animesh Barman v. Yes Bank

Case brief

What is this about?

What did the court decide?

Sri Animesh Barman v. Yes 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

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Case details

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