Dismissed

Birendra Kumar Singh v. Central Bank of India

DRT11 Sept 2025SA/105/2025

Case brief

AI extract

What is this about?

In this Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) petition, the applicant sought to quash enforcement action. The Debts Recovery Tribunal dismissed the application, holding it non-maintainable due to the non-joinder of necessary co-borrowers and noting evidentiary gaps regarding notice service. Relief was denied.

What did the court decide?

The application quashing the SARFAESI action and possession notice was dismissed with costs.

Birendra Kumar Singh versus Central Bank of India — Cheque Dishonour | DRT (2025)

SA 105 of 2025 UJ

DRT. PATNA

DEBTSRECOVERYTRIBUNALPATNA

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Presiding Officer:ShriKaushalendra Yadav

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SA-lOS 0(2025

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Birendra Kumar Singh, son of Nand Kumar Singh, Rio Durga Bhawan, Bahadurpur, P.S.- Bahadurpur, Dist & Town - Patna.

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.........Applicant

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Versus

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Central Bank of India through Zonal Manager, Zonal Office, Maurya Lok Complex, 2ndFloor, Patna - 800001.

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The Authorised Officer, Central Bank of India, Rajendra Nagar Branch, Rajendra Nagar, District & Town - Patna.

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The Branch Manager, Central Bank of India, Rajendra Nagar Branch, Rajendra Nagar, District & Town - Patna

..........Respondent

Present:

For the Applicant

For the Respondent Bank

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:Sh.C.S.P.Sinha,Advocate

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:Sh.Suresh Mishra,Advocate

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Dated: 11.09.2025

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IUDGMENT

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Present application has been filed with a prayer to quash entire SARFAESI action taken against the properties of applicant alongwith the possession notice issued by the respondent bank.

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The brief fact of the case is that the borrowers availed the Credit facilities to the tune of Rs.35,50,000/- from the respondent Bank. To secure the loan facilities borrowers have mortgaged their property with the Bank. Due to default in repayment of dues of the bank, the accounts were classified as NPA on 30.04.2024. In order to recover the outstanding dues, the respondent bank initiated SARFAESI Action against the borrower & guarantor by issuing Demand Notice dated 02.05.2024 u/s 13(2) of the act

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SA 105 of 2025 [J)

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DRT,PATNA

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calling upon the borrower to make the payment of Rs.32,32,804/-. Thereafter, the respondent took symbolic possession of the property on 27.06.2019 by issuing Possession Notice dated 03.07.2024 uls 13(4) of the SARFAESI Act. Further, the respondent Bank moved before District Magistrate uls 14 of the Act for physical possession of the property. Accordingly, the District Magistrate passed an order dated 28.09.2024 with respect to physical possession of the property. In pursuance of order of District Magistrate, the Sub Division Officer has fixed the date for physical possession of the property on 02.04.2025. Aggrieved from the action initiated for physical possession of the property, present SAhas been filed by the applicant.

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It is submitted by the Ld. Counsel of applicant that without consent of the applicant two accounts were opened by the Bank. Due to the illness of the applicant and his wife, the installment could not be paid properly. The respondent Bank did not grant interim relief considering the Covid pandemic and declared the account as NPAon 30.04.2024. The respondent Bank without service of Demand Notice issued uls 13(2) as well as Possession Notice issued uls 13(4), pasted the order of physical possession over the property. The property in question exists in the name of applicant but the respondent bank compels his sons to execute the mortgage deed.

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On the contrary, ld. Counsel of the respondent bank submits that earlier the applicant availed the loan facility to the tune of Rs.10 lacs as Home Loan. Further, the applicant alongwith his sons approached Bank for another home which was sanctioned by the respondent Bank to the tune of Rs.25.50 lacs in the year of 2020. Pursuant to the same the present applicant and his sons created registered Mortgage Deed No.240 dated 07.01.2021 in favour of respondent bank. Due to default in repayment of dues of the bank, the accounts were classified as NPAon 30.04.2024. Thereafter, the respondent Bank initiated SARFAESIaction against the borrower and guarantors and served Demand Notice dated 02.05.2024 issued uls 13(2) of the SARFAESI Act to the applicant. Despite service of demand notice, the borrowers did

SA 105 of 2025 PI

DRT,PATNA

not pay the dues of the Bank hence, the Bank issued Notice dated 03,07,2024 u/s 13(4) of the Act and took symbolic possession of the property on 03.07.2024. The possession notice was affixed on the secured asset and also published in "The Hindu" and "Prabhat Khabar" on 06.07.2024. Further, the respondent Bank moved before District Magistrate u/s 14 of the Act for taking physical possession of the property. Accordingly, the District Magistrate passed an order dated 23.09.2024 with respect to physical possession of the property. In pursuance of order of District Magistrate, the Sub Division Officer has fixed the date for physical possession of the property on 02.04.2025 which was also affixed on the secured asset informing the applicant to vacate the premises.

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

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It is alleged that without consent of the applicant two accounts were opened by the Bank. On perusal of records it appears that the alleged loan amount of Rs.2s.50 lacs was sanctioned by the Bank on 24.12.2020 which was acknowledged by the Borrower Birendra Kumar Singh applicant herein as well as acknowledged by Piyush Kumar, Prashant Kumar and Priyavart Kumar as co-borrower. Thereafter, loan agreement was also executed by all the above said persons on 28.12.2020 for an amount of Rs.2s.50 lacs. Subsequently, Mortgaged Deed was also executed by all the borrowers on 07.01.2021 in favour of respondent Bank. While executing the abovesaid documents, the applicant did not raise any objection with the Bank rather availed the loan amount. Therefore, the allegation regarding the two loan accounts being opened without the consent of the applicant is not sustainable.

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It is further alleged that the respondent Bank without service of Demand Notice issued u/s 13(2) as well as Possession Notice issued u/s 13(4), pasted the order of physical possession over the property.

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On perusal of records it appears that Demand Notice dated 02.05.2024 was issued u/s 13(2) of the SARFAESIAct by the respondent bank to the applicants and the same was sent to applicant through post on 04.05.2024 ~/

IA..-I:::>

SA 105 of 2025 [J)

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DRT. PATNA

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to prove the service of Demand Notice the respondent annexed [the postal receipt with counter affidavit as annexure - c- series, page 84 which is not visible. Neither the name of addressee nor the date of transmission is visible. However, at the top of said page handwritten date has been mentioned which shows that the notice was sent on 04.05.2024] to the applicant. The respondent bank also failed to file a tracking report which is best evidence to prove the service of notice when there is specific allegation that neither the demand notice nor the possession notice has been served upon applicant.

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The possession notice u/s 13(4) of the Act was issued on 03.07.2024. The said possession notice was sent to the applicant on 03.07.2024 through post as appears from the postal receipt annexed with counter affidavit at page 88 but herein again the respondent bank failed to file tracking report of service of possession notice upon applicant. The tracking report is the only and primary evidence to prove the delivery of the postal dispatch. The provision in the General clauses Act was made when the best evidence of postal tracking was not there. As such suppression or withholding the best evidence leads to the adverse inference. It gives rise to the presumption that such evidence does not support the case if the party tries to withhold it.

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10.To prove the affixation of possession notice, the respondent bank annexed a copy of photograph at page 91 which indicates that the possession notice was affixed on 03.07.2024 on secured asset. The possession notice was published in "The Hindu" and "Prabhat Khabar" on 06.07.2024.

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So far an allegation regarding the property in question exists in the name of applicant but the mortgage deed executed by co-borrower is concerned, The applicant did not file any title did in his favour to claim that the property in question belongs to the applicant only. from the mortgaged as filed by respondent Bank along with the counter affidavit at page number 55 of the computer affordable it APS that the mortgage these was executed by Mr Virendra Kumar Singh Mr Piyush Kumar Mr Prashant Kumar and Mr Priya Rath Kumar in favour of the Central Bank of India. These are the owners of

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ORT. PATNA

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SA 105 of 2025 [J)

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the said property as per sale deed filed by the respondent As aaaaaannexure -Hto the Counter affidavit ..

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Apart from this, it is important to consider the effect of the non-joinder of the co-borrower Piyush Kumar, Prashant Kumar and Priyavart Kumar in the present application. The non-joinder of necessary parties leads to the multiplicity of judicial proceedings. The application filed by the borrower is not maintainable without impleading the co- borrower Piyush Kumar, Prashant Kumar and Priyavart Kumar, as the controversy involved in the present case cannot be effectively adjudicated and no effective order can be passed without their presence. Therefore, in spite of the above infirmities, no relief can be granted to the applicant.

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In view of the above discussion, the present application is liable to be dismissed.

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ORDER

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The application SA105 of 2025 is dismissed with costs.

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[Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna

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Judgment signed, sealed, dated and pronounced in the open court on this 11THDay of September, 2025.

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"''---''"'" ~ [KaushalendraYadav] Presiding Officer Debts Recovery Tribunal, Patna

Birendra Kumar Singh v. Central Bank of India

Case brief

What is this about?

What did the court decide?

Birendra Kumar Singh v. Central Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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