Allowed

Messrs Aryan Rolling Flour Mills and Others v. Punjab National Bank and Others

DRT24 Apr 2025SA/108/2024

Case brief

AI extract

What is this about?

The DRT holder in office allowed an application challenging NPA classification and enforcement proceedings. The tribunal held that while notices were issued, lack of proof via track consignment record rendered service unproven, making subsequent steps illegal, and quashed the action while directing a partial deposit.

What did the court decide?

Securitization application allowed, enforcement proceedings quashed, and applicants ordered to deposit Rs. 50 Lakhs within 10 days.

Messrs Aryan Rolling Flour Mills and Others versus… — Contract and Commercial Disputes | DRT (2025)

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DEBTS RECOVERY TRIBUNAL-III, CHANDIGARH

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PRESIDED OVER: SH. MRIDULESH KUMAR SINGH

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SECURITIZATION APPLICATION NO.108/2024

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Date of Institution: 19.03.2024

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Date of Decision: 24.04.2025

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M/s Aryan Rolling Flour Mills through its partner, Sh. Kamal Kumar having its registered office at E-6 and E-7, Focal Point, Banga Road, Nawanshahar, Shaheed Bhagat Singh Nagar, Punjab-144514

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Sh. Kamal Kumar S/o Sh. Rakha Ram, R/o RZ 21/22, Indra Park Extn., East Uttam Nagar, New Delhi-110059

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Sh. Nitin Mandhar S/o Sh. Kamal Kumar, R/o RZ 21/22, Indra Park Extn., East Uttam Nagar, New Delhi-110059

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--Applicants

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Versus

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Punjab National Bank having its Head Office at Plot No. 4, Sector-10, Dwarka, New Delhi, through its Managing Director & Chief Executive Officer

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Punjab National Bank having its MCC Kapurthala, Branch situated at 99JM+MX3, Kapurthala Road, Sukhjit Nagar, Shivaji Nagar, Kapurthala, Punjab through its Authorised Officer

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Punjab National Bank having its Branch Office at Ambedkar Chowk Near Bus Stand, Nawanshahar144514 through the Authorised Officer

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--Respondents

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Argued by: Ms. Ridhi Bansal, Advocate for Applicants Sh. Ankit Kaushal, Advocate for Respondents

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FINAL ORDER

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(1) This Securitization Application was filed under Section 17 (1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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2002 (hereinafter referred to as ‘the Act’ for brevity) for setting aside declaration of loan account as NPA on 30.11.2022, demand notice dated 16.12.2022 (Annexure A5), notice under Section 13(4) of the Act dated 28.02.2023 (Annexure A6), order dated 30.01.2024 passed under Section 14 of the Act and e-auction notice and its publication dated 12.03.2024 (Annexure A19). (2) It was stated in the application that applicant No.1 is an MSME Unit and a partnership Firm constituted for the purpose of carrying on the business of running a flour mill through applicant Nos. 2 & 3 w.e.f. 01.04.2017, who are the partners/guarantors; that Smt. Sushila (i.e., W/o applicant No.2) was also one of the partners and had subsequently retired vide Deed dated 01.04.2022; that respondents had approached the applicants offering credit facilities at lucrative rate of interest and based on their assurances, the applicants availed credit facilities in the shape of Cash Credit and Term Loan from Oriental Bank of Commerce (which was amalgamated with respondent bank w.e.f. 01.04.2020) to the tune of Rs.1,50,00,000/and Rs.1,00,00,000/- respectively; that the said limits were secured by:

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i. Hypothecation of entire stocks of raw materials, work in progress and finished goods and book debts and entire current assets, present and future at Godown and factory situated at 6 and 7, Focal Point, Banga Road, Nawanshahar, Shaheed Bhagat Singh Nagar, Punjab-144514.

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ii. All the part and parcel of land and building at Plot No.E-6 measuring 450 sq. yards situated at Industrial Area, Focal point Nawanshahar, as mentioned in Lease Deed dated 12.12.2007 in favour of applicant Nos. 2 & 3 alongwith Smt. Sushila.

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iii. All the part and parcel of land and building at Plot No. E-7, measuring 450 sq. yards situated at Industrial Area, Focal point Nawanshahar, as mentioned in Lease Deed dated 12.12.2007 in favour of applicant Nos. 2 & 3 alongwith Smt. Sushila.

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iv. All the part and parcel of land and building at Plot No. E-4, measuring 450 sq. yards situated at Industrial Area, Focal point Nawanshahar, as mentioned in Lease Deed dated 11.09.2020 in favour of applicant Nos. 2 & 3 alongwith Smt. Sushila.

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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(3) It was further stated that considering the good performance of applicants and its satisfactory conduct, the said facilities were renewed and enhanced from time to time; that owing to the pandemic of Covid-19 and nationwide lockdown, the business of the applicant Firm suffered badly and resultantly, it became quite arduous to pay the installments on time; that in order to cope with the unprecedented situation, the Government of India had announced a slew of relief measures for the MSME sector and since the account of the applicant Firm continued to remain standard, respondents have extended the benefit of Guaranteed Emergency Credit Line Facility of Rs.25,00,000/- and Rs.12,50,000/respectively and accordingly, the loan facility was last renewed on 30.09.2021; that in contravention of the mandatory procedure of referring the account of applicant Firm to designated committee for deciding on a Corrective Action Plan, the moment overdues are pending for 60 to 90 days in terms of RBI Circular dated 17.03.2016 (Annexure A-4A), loan accounts of applicants were classified as NPA on 30.11.2022; that instead of taking any remedial steps and cooperating with the applicants, respondents had initiated proceedings under the Act with issuance of impugned demand notice dated 16.12.2022 under Section 13(2) of the Act for sum of Rs.2,57,65,594.64p (due as on 16.12.2022) in violation of Rule 3 of the Security Interest (Enforcement) Rules, 2002 and the said notice was never validly served upon the applicants and other borrowers/guarantors; that the said notice is bad in law as the necessary particulars qua the description of secured assets along with its identification mark, specially one which is mentioned in Rule 6 and CERSAI Number are not mentioned in it as well as the impugned notice does not bear signatures of the Authorised Officer; that the Cash Credit facility loan was covered under the CGTMSE Scheme and hence could not have been demanded under the impugned notice alongwith the amount disbursed under Guaranteed Emergency Credit Line Facility in as much as the said facilities were never secured by creation of mortgage/hypothecation over the aforesaid properties; that meanwhile, being completely unaware of the present proceedings, the applicants approached the respondents praying for extension of restructuring facility; that the

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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respondents on the one hand kept the matter pending and on the other hand proceeded to issue impugned notice under Section 13(4) of the Act dated 28.02.2023; that the said notice was issued in violation of Rule 8 & 9 of the Security Interest (Enforcement) Rules, 2002; that the said notice was never served upon the applicants; that neither the said notice was affixed on the conspicuous part of the secured assets nor the said notice was published in two leading newspapers; that on 18.02.2023 the applicants approached the respondents to upgrade the loan account in terms of clause 4.2.5 of the Master Circular dated 01.07.2015 vide their letter (Annexure A7) and accordingly furnish the loan account statement; that by keeping their request for regularization in cold storage, the respondents had issued notice dated 15.03.2023, followed by notices dated 14.07.2023 and 11.10.2023 inter-alia threatening to alienate the properties belonging to the applicants in the event they fail to pay the entire outstanding dues within a period of 30 days; that in order to revive their business, applicants by gathering money from mobilizing all resources applied for tenders from Punjab Government under Aata Dal Scheme; that simultaneously, in a bid to standardize the loan account, the applicants got deposited a sum of Rs.32.14 Lacs since September, 2023 but respondents continued with their malfeasance and continued to charge interest rates in complete violation of the agreed upon rates stipulated in the sanction letter; that vide letter dated 18.12.2023, it was earnestly requested that penal interest may also be waived taking into consideration the havoc wrecked by the pandemic of Covid-19; that in response thereto, respondents vide e- mail dated 22.12.2023 and 27.12.2023 duly admitted the receipt of the said amount and further communicated the overdue amount pending as on dated 31.12.2023 to be Rs.42.48 Lacs; that qua the waiver of penal interest and alteration in rate of interest, it was arbitrarily stated that the applicants may raise their grievance to MCC, Kapurthala; that applicant Firm once again requested the respondents to resolve their subsisting grievance regarding charging of exorbitant rate of interest; that respondents had again issued impugned notice dated 05.01.2024 vide which they were once again threatened that they will auction their mortgaged properties as well

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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as the machinery, in the event the entire outstanding amount is not paid within 15/30 days; that respondents have moved an application under Section 14 of the Act to take physical possession and on the strength of a false affidavit, District Magistrate passed the impugned order dated 30.01.2024 (Annexure A-17) in a mechanical manner; that aggrieved by this, the applicants approached the Hon’ble Punjab and Haryana High Court by way of filing CWP No. 4567/2024, which was ultimately dismissed as withdrawn with the liberty to avail the alternative remedy in accordance with law vide order dated 18.03.2024; that during the pendency of the said petition, another sum of Rs. 07 Lacs was deposited with the respondents by applicants; that meanwhile, the respondents proceeded to issue impugned e-auction notice published on 12.03.2024 for conducting sale of abovementioned properties belonging to the applicants; that that said sale notice was never served upon the applicants in breach of requirement spelled under Rule 8 & 9 of the Security Interest (Enforcement) Rules, 2002 and the said notice was never affixed on the secured assets, thereby depriving the applicants of their cherished right to redeem property; that apart from non-service of the impugned sale notice upon all the applicants, the same was never published in two leading newspapers having sufficient circulation in the locality; that applicants had only known about the said notice when the applicants contacted the Official of the respondents to discuss their request of upgradation of loan accounts and they were handed over the said publication; that the secured assets are sought to be sold by grossly undervaluing them, which is ex facie evident from perusal of the valuation got done by the respondents at the time of sanction, the value of plant and machinery was assessed as Rs. 98.25 Lacs and the factory land was valued at Rs.137.68 Lacs; that as per the current circle rate, the value of the factory land is around Rs.1.80 to Rs.02 Crores and besides that no reserve price has been fixed for Plot E-6 and E-7; that respondents had miserably failed to show any proper valuation, which was got done by the respondents; that before effecting the sale of the immovable property, the respondents did not hold any consultation with the borrower in fixing the reserve price of the property; that the reserve price has been fixed arbitrarily without

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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application of mind; that in terms of Rule 8(7) (a) of the Security Interest (Enforcement) Rules, 2002 the Authorised Officer is bound to set out in the sale notice about the description of the immovable property to be sold and any other thing, which he considers material for a purchaser to know in order to judge the nature and value of the property; that respondents had failed to disclose the ‘encumbrances’ attached to the mortgaged properties inter-alia the proceedings before this Court and hence respondents have acted in complete departure of their obligation casted under Rule 8(6) (f) of the Security Interest (Enforcement) Rules, 2002; that there has been infraction of Section 13(8) of the Act, which post the (Amendment) Act, 2016 has drastically curtailed the right of redemption available with the borrower upto the date of publication of sale notice; that statutory gap of 15 days between the sale notice under Rule 8(6) and Rule 9(1) of the Security Interest (Enforcement) Rules, 2002 has not been maintained and as such, auction cannot be take place; that in light of the facts leading to the instant application, the applicants prayed for quashing the impugned action on the part of respondents inter-alia the classification of loan accounts as NPA as well as the proceedings undertaken under the Act pursuant to the impugned demand notice dated 16.12.2022 (Annexure A5) particularly sale notice published on 12.03.2024 (Annexure A19). It was prayed that the SA may kindly be allowed.

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(4) Reply filed by respondents.

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(5) It is stated in the reply that this SA is devoid of any merit and is liable to be dismissed; that applicants have not approached this Tribunal with clean hands and have suppressed material facts from coming into light; that respondents have initiated proceedings under the Act subsequent to deliberate default committed by the applicants in their repayment schedule and accordingly the loan accounts of applicants got classified as NPA on 30.11.2022; that applicants have stated that business of applicants Firm suffered badly due to nationwide lockdown as result of which there was default in repayment of installment; that in this regard it is submitted that business of the applicants is related with daily consumable items and had very less impact during the lockdown period; that even otherwise, loan accounts

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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of applicants were classified as NPA on 30.11.2022 much after the period of lockdown expired; that the bad intention of the applicants got revealed by this fact; that applicants have availed total 05 credit facilities from respondents; that as per demand notice dated 16.12.2022 total outstanding amount as on 16.12.2022 in the loan accounts was Rs.2,57,65,594.69p (CC LimitRs.1,55,19,674.65p, Term Loan-Rs.56,55,124.63p, GECLRs.24,54,084.95p, Term Loan Subsidy-Rs.9,98,491.39p and GECL-Rs.11,38,219.07p); that applicants have not placed on record any document pertaining to any representation, wherein they have requested the respondents to extend them the benefit of RBI Circular dated 17.03.2016 and applicants have not deposited substantial amount in order to get their loan accounts into standard category; that applicants have approached this Tribunal upon accruing of cause of action in their favour on 12.03.2024 vide which the respondents had issued sale notice, which was served upon applicants for the purpose of selling mortgaged properties on 28.03.2024; that since no bid came on that day, therefore the present SA filed by applicants has becomes infructuous; that even otherwise the applicants have not disputed the service of demand notice as well as possession notice in the present Securitization Application; that prior to approaching this Tribunal applicants had initially approached Hon’ble High Court by filing CWP No.4567/2024; that the said Writ Petition was withdrawn vide order dated 18.03.2024 with liberty to applicants to avail their remedies in accordance with law; that applicants have merely raised the issue pertaining to RBI Circular dated 17.03.2018 on ‘Framework for Revival and Rehabilitation of Micro, Small and Medium Enterprises’; that in this regard it was submitted that applicants were not entitled to get provisions of the said Circular since the applicants were not a MSME Unit at the time of sanctioning of credit facilities; that moreover, applicants have not placed on record any document wherein it was submitted by them to refer their loan account to designated committee prior to classification of loan accounts as NPA; that respondents had issued demand notice dated 16.12.2022 to applicants strictly in accordance with law and nothing is in violation (Annexure R-1/2); that thereafter, respondents had issued

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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possession notice, which is also in compliance of Rules (Annexure R-1/3); that as alleged by applicants that respondents had charged exorbitant interest rates in violation of agreed rates, in this regard it was submitted that levy of interest in the loan accounts of the applicants is as per agreement and nothing is charged beyond the agreed rate of interest. It was prayed that the present SA filed by applicants against action initiated by respondents under the Act is devoid of any merit and is not maintainable and the same is liable to be dismissed with costs.

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(6) Replication by applicants to the reply filed by respondents, wherein the contents of SA were reiterated and that of the reply to the SA were denied.

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(7) I have heard arguments advanced by Ms. Ridhi Bansal and Sh. Ankit Kaushal, Advocates and gone through the record carefully.

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(8) Ms. Ridhi Bansal, Advocate argued that loan accounts of applicants were wrongly classified as NPA on 30.11.2022 in contravention of clause 4.2.5 of the Master Circular dated 01.07.2015 issued by Reserve Bank of India and also in contravention of the mandatory procedure of referring the accounts of applicant Firm to designated committee for deciding on a Corrective Action Plan, the moment overdues are pending for 60 to 90 days in terms of RBI Circular dated 17.03.2016. It was further argued that applicant Firm is a MSME Unit but respondents have not referred their matter to designated committee before classification of loan accounts as NPA on 30.11.2022.

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(9) Per contra , Sh. Ankit Kaushal, Advocate argued that applicants did not repaid the loan amount as per terms and conditions of the agreement therefore, their loan accounts were classified as NPA on 30.11.2022 as per guidelines issued by RBI vide Master Circular dated 01.07.2015. It was further argued that as per Clause 4.2.7 of the Master Circular dated 01.07.2015 it was provided that asset classification to be borrower wise and not to be facility wise. It was further argued that applicants have not placed on record any document pertaining to any representation wherein they have requested the respondents to extend them the benefit of RBI Circular dated 17.03.2016 and applicants have not deposited substantial amount in order to get their loan

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SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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accounts into standard category. It was further argued that loan accounts were classified as NPA in strict compliance of Rules and there is no illegality in it. It was further argued that as per RBI Circular dated 17.03.2016 on ‘Framework for Revival and Rehabilitation of Micro, Small and Medium Enterprises’, applicants were not entitled to get provisions of the said Circular since the applicants were not a MSME Unit at the time of sanctioning of credit facilities.

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(10) It is admitted fact that total five Credit Facilities were obtained by applicants and they failed to adhere financial discipline. It is also admitted fact that as per Master Circular dated 01.07.2015 issued by RBI, asset classification is to be borrower wise and not facility wise. Udhyam Registration Certificate dated 23.12.2020 annexed as Annexure A3 along with SA is a photocopy and not legible. Date of availing Credit Facilities is not provided in the pleadings. Copy of Sanction Letter was also not placed on record. From the facts on the record, it reveals that the credit facilities were availed from Oriental Bank of Commerce as stated in the Securitization Application. This Bank was amalgamated with Punjab National Bank on 01.04.2020. This shows that Credit Facilities were availed before 01.04.2020. Admittedly, at the time of availing Credit Facilities applicant No.1 Firm was not registered as MSME Unit. There is no evidence on record to show that the said Udhyam Registration Certificate was ever provided to respondents.

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(11) In light of above, applicants cannot claim any benefit on the basis of being MSME Unit and in light of RBI Circular dated 17.03.2016 and 01.07.2015. Therefore, in the considered opinion of this Tribunal respondents have not classified the loan accounts as NPA illegally.

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(12) Ms. Ridhi Bansal, Advocate further argued that notices under Section 13(2) & 13(4) of the Act were not served according to Rule 8 of the Security Interest (Enforcement) Rules, 2002.

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(13) Per contra , Sh. Ankit Kaushal, Advocate argued that notices under Section 13(2) & 13(4) of the Act were duly served upon all the applicants as per Rules. It was further argued that copies of said notices are annexed as Annexures R1/2 & R1/3 to the reply along with the proof of service. Copies of receipts of registered posts along

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10 SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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with tracking reports are also filed as Annexure R1/2 to R1/3.

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(14) It reveals from record that only receipts of registered posts were filed in respect of notices under Section 13(2) & 13(4) of the Act but no track consignment record filed by respondents to show that the notices in question which were allegedly sent by respondents were ever received by the applicants and concerned. Track consignment record is available w.e.f. January, 2013 and as per reply filed by respondents notices in question were sent in years 2022 & 2023. Gone are the days when sending of registered post itself used to be enough for drawing the presumption of service against the addressee. There is hardly any scope for the same in view of the availability of the track consignment record. Track consignment record should have been produced to bring home the fact that the notices were duly served upon the applicants and concerned and that not being the position, this Tribunal refuses to draw presumption of service. There is no other type of personal service of the said notices upon the applicants and other concerned, which was either pleaded or proved.

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(15) In light of above factual position, it is established that notices under Section 13(2) & 13(4) of the Act were validly issued but not proved served upon all concerned in light of the Security Interest (Enforcement) Rules 2002.

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(16) Ms. Ridhi Bansal, Advocate further argued that respondents had never created its charge against the properties in question with CERSAI.

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(17) Per contra , Sh. Ankit Kaushal, Advocate argued that respondents had duly created its charge against the properties in question with CERSAI and copy of CERSAI Certificate is annexed as Annexure R1/4 to the reply.

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(18) In the considered opinion of this Tribunal, that as per CERSAI Certificate, the secured assets are duly registered with Central Registry as per Rules. Therefore, there is no force in the argument of Ms. Ridhi Bansal, Advocate.

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(19) Ms. Ridhi Bansal, Advocate further argued that order passed by District Magistrate concerned under Section 14 of the Act was illegal and without application of mind.

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11 SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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(20) Per contra , Sh. Ankit Kaushal, Advocate argued that the said order was passed with application of mind and there is no illegality in it.

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(21) Alleged order of District Magistrate concerned was filed along with the SA as Annexure A17. From perusal of the said order, it cannot be said that the Additional Deputy Commissioner (G), SBS Nagar (Exercising the Power of District Magistrate) has passed the said order without application of mind and there appears no illegality. The said order was passed as per law.

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(22) Sh. Ankit Kaushal, Advocate argued that at present there is overdue amount of about Rs.1,92,00,000/- in the loan accounts of applicants as well as about Rs.2,30,00,000/- was outstanding in the month of January, 2025. It was further argued that applicants are chronic defaulters as well as they are not abiding with the orders of this Tribunal. It was further argued that on 26.03.2024 before Incharge Presiding Officer of this Tribunal Ms. Ridhi Bansal, Advocate has undertaken that Rs.05 Lacs will be paid by tomorrow (27.03.2024) and the remaining sum in the next three months. It was further argued that applicants have not deposited the remaining sum in next three months. (23) It reveals from the order dated 24.09.2024 that despite opportunity Ms. Ridhi Bansal, Advocate has not answered regarding the non-compliance of order dated 26.03.2024 even after more than six months. This shows that applicants are very clever litigants, they have obtained stay order from the Incharge Presiding Officer with false undertaking and have filed this SA taking the advantage of legal provisions but neither wants nor ready to deposit their loan amount.

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(24) In the SARFAESI Act nowhere it is provided that applicants have any right not to deposit their outstanding dues. (25) No other point was argued/pressed. (26) From the above, it shows that when the foundation of the SARFAESI proceedings i.e., notice under Section 13(2) of the Act was not proved as served upon applicants then building constructed on the said notice cannot be said as legal. (27) After the consideration of all facts and circumstances, the SA is liable to be allowed.

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12 SA/108/2024

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M/S ARYAN ROLLING FLOUR MILLS AND OTHERS VS. PUNJAB NATIONAL BANK AND OTHERS

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(28) Accordingly, SA is allowed. Proceedings under the Act are illegal therefore, the same are quashed. It is made clear that respondents may again initiate fresh SARFAESI proceedings according to law. (29) Considering the huge amount of outstanding upon applicants, it is also ordered that applicants shall deposit Rs.50 Lacs in their loan accounts within 10 days from today.

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(30) Any other IA pending stands disposed of accordingly.

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Record be consigned to record room after due compliance.

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Date: 24.04.2025 Pronounced by me in the open Tribunal.

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(MRIDULESHKUMARSINGH) Presiding Officer, DRT-III, Chandigarh

Messrs Aryan Rolling Flour Mills and Others v. Punjab National Bank and Others

Case brief

What is this about?

What did the court decide?

Messrs Aryan Rolling Flour Mills and Others v. Punjab National Bank and Others

Case brief

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What did the court decide?

What the court decided

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