On a SARFAESI application where the applicant challenged the DM's order under Section 13 regarding a superseded possession notice, the court accepted the applicant's plea to withdraw the petition and disposed of the case and application with withdrawal.
SARFAESI application and writ petition disposed of as withdrawn.
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.
Order Sheet
Case No. SA 305 of 2022 MS DEBNATH CAPITAL PROP NEPAL CHANDRA DEBNATH –VS- BANK OF BARODA Office action with Date of date and dated Order with Signature Signature of the Order Parties whennecessary
2
29.8.2024 Mr. Gourav Singh, (Sl. No. 27) Mr. Ankit Chatterjee, Ms. Ahana Rakshit, Ms. Ritisha Biswas. … For the Sarfaesi Applicant. Mr. Samik Basu, Mr. K.N. Mukherjee. … For the Respondent Bank. Learned counsel for the sarfaesi applicant in IA 1913 of 2024 has challenged the order of the learned DM, Hooghly, dated 14.6.2024 alleging that the order of the learned DM is based on conjecture. The applicant has submitted a representation against the demand notice dated 7.6.2022 but the said representation has not been replied by the bank and the learned DM has not expressed satisfaction whether the said representation was duly replied by the bank or not and the representation is one of the facts in the 9 point affidavit. The applicant has relied on the authority of the Hon’ble Supreme Court in the case of ITC Limited –vs- Blue Coast Hotels Limited & Ors, reported in (2018) 15 SCC 99 and the judgment of the Hon’ble DRAT, in the case of Aditya Birla Finance Ltd. & Anr. –vs- City Oil Pvt. Ltd. & Ors.
Learned counsel for the respondent bank, Mr. Samik Basu, submitted that in IA 1913 of 2024 the applicant has challenged the order of the learned DM which is based on the possession notice dated 6.9.2022 which the applicant annexed in
3
the application as annexure ‘C’. but the respondent bank in supersession of the said possession notice dated 6.9.2022 has issued another possession notice on 31.12.2022 which is annexed in their objection in SA as annexure ‘A’.
Learned counsel for the respondent bank argued that the right of a borrower accrues from measures under Section 13(4) not from issuance of demand notice or representation under Section 13(3A). Since in the SA the applicant has not challenged the subsequent possession notice which is the measure in force against the borrower, the sarfaesi application itself is not maintainable.
Learned counsel for the respondent bank further submits that as the sarfaesi application itself is not maintainable, IA 1913 of 2024 assailing the order of the learned DM after issuance possession notice dated 31.12.2022 is also not maintainable and prays for rejection of IA as well as SA.
Learned counsel for the sarfaesi applicant submitted that the subsequent possession notice was issued on the basis of the demand notice and the applicant has made representation for consideration of OTS which has not been replied. Therefore, SA is maintainable and this IA is also maintainable.
Heard from both sides.
4
Perused the order of the learned DM. The learned DM has recorded some conditions on the action of the authorised officer and also recorded that the representation made by borrower is not a subject of adjudication.
Learned counsel for the respondent bank submitted that Section 13(3A) categorically speaks that reasons should be communicated by the creditor on the representation cannot enable the applicant to challenge the reply to the representation under Section 17.
The borrower can challenge any measure which comes under Section 13(4). The decisions relied by the learned counsel for the applicant are in respect of measures under Section 13(4) and when such measure is challenged, a borrower can also challenge demand notice, reply, etc. But, in this case the applicant has not challenged possession notice dated 13.12.2022. The previous notice dated 6.9.2022 becomes infructuous when the bank issued subsequent possession notice.
Therefore, the SA at this stage is subject to maintainability alongwith this IA.
The learned counsel for the sarfaesi applicant submits for withdrawal of SA.
As prayed for SA is disposed of as withdrawn with all the
5
IAs.
(Ambuja Mohan Das) Presiding Officer
ac
Colour shows how this judgement treated each authority
ITC Limited vs Blue Coast Hotels LimitedReferred¶4
ITC Limited –vs- Blue Coast Hotels Limited & Ors, reported in (2018) 15 SCC 99 · Who else cites this
Aditya Birla Finance Ltd. vs City Oil Pvt. Ltd.Referred¶4
Aditya Birla Finance Ltd. & Anr. –vs- City Oil Pvt. Ltd. & Ors
MS Debnath
Bank of Baroda
Ambuja Mohan Das
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
