Dismissed

Ms Bhaavya Pipe Pvt. Ltd. v. Indian Bank

DRT17 Jan 2025SA/173/2024

Case brief

AI extract

What is this about?

Debts Recovery Tribunal addressed a application to quash SARFAESI actions, including a possession notice. The court allowed condonation of delay but dismissed the main application due to non-joinder of the guarantor and other infirmities preventing effective adjudication.

What did the court decide?

Application to quash SARFAESI action and possession notice dismissed. No order as to costs.

Ms Bhaavya Pipe Pvt. Ltd. versus Indian Bank — Banking and Recovery | DRT (2025)

DRT, PATNA

SA 173 of 2024 [J)

DEBTSRECOVERYTRIBUNALPATNA

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Presiding Officer :Shri KaushaLendraYadav

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SA- 173of 2024

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M/s Bhaavya Pipe Pvt. Ltd., through its Director Ranjay Singh, 5/0 Late Ram Lakhan Singh, R/o New Area, MG Road, PO + Post : Aurangabad, Bihar - 824)01. (Borrower).

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.........Applicant

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Versus

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1 The Authorised Officer, Indian Bank, Zonal Office, Gaya South Bisar TaLab,Gandhi Maidan, Gaya, Bihar - 823001.

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--respondents

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Present:

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For the Applicant	: Sh. Jitesh Singh, Advocate
For the Respondent Bank	: Sh. Animesh Ranjan,Advocate

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Dated: 17.01.2025

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JUDGMENT

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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. Alongwith S. application the applicant has filed Limitation Petition by way of IA 327/2024 for condonation of delay in filing of present SA.

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2, During pendency of SA, the applicant has also filed IA 332/2024 with the prayer to stay the auction process of secured asset initiated by the respondent bank vide auction sale notice dated 06,06,2024,

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The brief fact of the case is that the borrower availed financial assistance to the tune of RS.60 Lacs from the respondent bank and mortgaged the property towards security of the loan, Due to default

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ORT, PATNA

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SA 173 of 2024 IJ]

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in repayment of dues of the bank, the accounts were classified as NPA on 28.09.2021. Subsequently, the respondent bank initiated SARFAESI action against the borrower by issuing Demand Notice dated 08.12.2021u/s 13(2) of the act calling upon the borrower to make the payment of Rs.97,19,585/-.Thereafter, the respondent took symbolic possession of the property by issuing Possession Notice dated 05.04.2023u/s 13(4)of the SARFAESIAct. Aggrieved from the possession notice, present SA has been filed by the applicants.

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On the point of limitation it is submitted by the ld. Counsel of applicant that earlier the applicant had filed SA 161/2022against possession notice dated 30.04.2022. As the respondent bank informed this Tribunal on 23.11.2023that the possession notice dated 30.04.2022 has been withdrawn, therefore, SA 161/2022 was dismissed as an infructuous vide order dated 23.11.2023.Further, the applicant filed an Appeal before the Hon'ble DRAT,Allhabad against the order dated 23.11.2023passed by this Tribunal in SA 161/2022.The Hon'ble DRAT vide order dated 06.05.2024 dismissed the Appeal Hence, the present SA has been filed on 27.05.2024. The applicant was in a continuous course of litigation and delay in filing of SA is unintentional and prayed to condone the delay.

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On the point of merit it is submitted by the ld. Counsel of applicant that the respondent bank illegally declared the account of borrower as NPA. From the bare perusal of the statement of account it is clear that the outstanding amount was less than the limit sanctioned in the Cash Credit account. Moreover, no information was given to the applicant before declaration of account as NPA. Against the demand notice dated 08.12.2021,the applicant had objected by a letter dated 27.12.2021but the same has not been replied by the bank and sent possession notice 05.04.2023. The possession notice was neither affixed on secured assets nor published in two leading newspapers

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ORT, PATNA

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SA 173 of 2024 [JI

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within 07 days. The possession notice dated 05.04.2023 has been issued without" vacating the possession which has been taken earlier vide possession notice dated 30.04.2022. However. same was withdrawn but possession was not vacated.

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On the contrary. ld. Counsel of the respondent bank submits that the present application is barred by limitation. The applicant has no valid ground for condonation of delay. It is further submitted that the account of the borrower was validly declared as NPA as they continued to avail drawing without requisite repayments and turnovers therein. The borrower also did not submit a stock statement before the bank. The demand notice was served upon the applicant as also admitted in its application. The service of possession notice dated 05.04.2023 has also been admitted by the applicant in its application. The possession notice was affixed on the secured asset and also published in Times of India and Dainik Jagran on 11.04.2023.

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

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Before entering into controversy let us examine whether the present application was filed within the period of limitation or it is beyond the limitation that requires any kind of condonation of delay.

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For the purpose of filing of the securitization application under section 17 of the SARFAESIAct (hereinafter referred as Act). the apptication has to be filed within the period of 45 days from the measures taken under section 13(4) of the Act. As such for the purpose of determining the date from which the limitation will start running. depends upon the fact that when the measures u/s 13(4)of the Act were initiated and when such measures were brought into the knowledge of the applicant. It is also important to consider that the measures under the Act are still not over yet.

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DRT, PATNA

SA173 of 2024 IJ]

In the present matter the applicant stated that after dismissal of earlier SA 161/2022, approached Hon'ble DRAT,Allhabad which was disposed of on 06.05.2024 and present SA has been filed on 27.05.2024. In the meantime respondent bank has also issued an e- auction sale notice dated 06.06.2024. Hence, it appears that proceeding u/s 13(4) did not come to an end.

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The applicant is entitled to exemption of the time during writ petition under section 14 of the Limitation Act. which runs as under-

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Exclusion of time of proceeding bona fide in court without

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jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

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. In view of the above discussion, the application to condone the delay deserves to be allowed.

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It has been alleged that the account has been illegally declared as NPA illegally as the account of borrower was within the limit of sanction amount on the date of NPA. No intimation was given to the applicant before declaration of account as NPA. Against the demand notice dated 08.12.2021, the applicant had submitted its objection/representation by a letter dated 27.12.2021 but without disposing of the same the respondent bank issued possession notice dated 05.04.2023 and sent to the applicant. The possession notice was neither affixed on secured assets nor published in two leading newspapers within 07 days. The said possession notice was issued without vacating the possession taken on 30.04.2022.

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On perusal of records it appears that the account of the applicant

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SA 173 of 2024 [JI

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DRT.PATNA

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was declared as NPA on 28.09.2021but respondent bank did not annex any document to demonstrate the reason for declaration of account as NPA on 28.09.2021. No letter or notice has been filed informing the borrower of his failure to submit a stock statement before the bank or any misappropriation of loan, giving an opportunity to explain.

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15.The Demand Notice was issued on 08.12.2021which was received by the applicant as admitted in its application. The applicant stated that against demand notice he had objected by a letter dated 27.12.2021 and a copy of the same has been annexed with application as annexure-3, page 31 but the applicant failed to file any proof of service of said objection/representation to the respondent bank.

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16.The possession notice was issued on 05.04.2023 but the same was issued without withdrawing the earlier possession taken on 30.04.20222. The possession notice dated 05.04.2023was affixed on the secured asset. The possession notice was sent to the applicant on 11.04.2023as well as published on 11.04.2023in Dainik Jagran and The Times of India. The copy of the postal receipt regarding forwarding of possession notice to the applicant has been filed with the counter affidavit as annexure -1,page 12.

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17.Apart from the above, the applicant also failed to make the guarantor Sangeeta Singh as party in this application. Non-joinder of aforesaid necessary parties may give rise to multiplicity of judicial proceedings and the conflicting orders. At the same time the possibility of payments or willingness of other stakeholders to pay the dues as demanded by the respondent cannot be ruled out. If they have paid or are willing for that, the purpose of the present SARFAESIApplication will get infructuous. The present controversy cannot be effectively decided without impleading all stakeholders. Application of applicant is not maintainable without impleading the

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SA 173 of 2024 PI

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ORT. PATNA

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co-borrower/guarantor/mortgagor. In the above circumstances despite the aforesaid infirmities, no relief can be granted to the applicant.

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

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ORDER

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The application SA 173 of 2024, is dismissed. No order for the costs. ~ Consignthe record.

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I.. "1\0\.1"

[KaushalendraYadav]

Presiding Officer Debts Recovery Tribunal, Patna

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Judgment signed, sealed, dated and pronounced in the openl~Lw-<~/' on this 17THDay of January, 2025. <sup>.,.."'" /'

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[KaushalendraYadav]

Presiding Officer

Debts Recovery Tribunal, Patna

Ms Bhaavya Pipe Pvt. Ltd. v. Indian Bank

Case brief

What is this about?

What did the court decide?

Ms Bhaavya Pipe Pvt. Ltd. v. Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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