Applicants challenged NPA classification and possession notices under SARFAESI Act. Court upheld NPA validity due to missing stock statements. Court dismissed applications, finding applicant voluntarily surrendered secured properties.
SA/26/2024 and IA/248/2024 dismissed; interim order of 07/02/2024 vacated.
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.
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DEBTS RECOVERY TRIBUNAL – 1, KOLKATA JEEVANSUDHA BLDG. 9TH FLOOR, 42/C, J.L.NEHRU ROAD, KOLKATA – 700071
BEFORE SHRI AMBUJA MOHAN DAS, PRESIDING OFFICER
SA No. 26 of 2024
Both at Flat No. IA, 1st floor, RR Residency, K.C. Road, Chatribari, Guwahati 781001;
Vs.
1)STATE BANK OF INDIA
Stressed Assets Management branch-II, Jeevandeep Building (10th Floor), 1, Middleton Street, Kolkata-700071;
Respondents.
Present:
For Applicant: Mr. D. Karmakar and Mr. S. Ojha, Ld. Counsels
For Respondents: Mr. Joy Saha, Ld. Sr. Counsel
Mr. Nimesh Mishra, Mr. Anirban Pramanik and
Ms. A. Rakshit Ld. Counsels
J U D G E M E N T
Delivered on 21st March, 2025
Sarfaesi Applicant has filed this application u/s 17(1) of the Sarfaesi Act against the Respondent Bank and its Authorized Officer contending that Applicant no. 1 is a private limited company. Applicant nos. 2 and 3 are the
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Directors and guarantor in respect of loan sanctioned in favour of the Applicant no. 1. Applicants are the owners of the Scheduled properties.
Applicant no. 1 is doing business of manufacturing of tiles and sanitizer and taken credit facilities from the Respondent Bank. The said credit facilities were revised from time to time. Respondent Bank has sanctioned GECL Term Loan for a sum of Rs. 13,94,00,000/- but total amount was not entirely disbursed in favour of the Applicant. The amount sanctioned was not sufficient for the business of the Applicant.
It is further contended by the Applicants that at the time of sanction of credit facilities Respondent no. 1 promised that the rate of interest charged shall be lower than the prevailing market rate and only the PLR(Prime Lending Rate) shall be levied.
Respondent Bank assures the Applicant to give additional finance for requirement of business but those commitment was not adhered by the Respondent Bank. The Applicants have annexed the sanctioned letter vide Annexure ‘A’.
During the Covid-19 epidemic there was complete lockdown in the year 2020 and business of the Applicant suffered tremendously. Even during Covid-19 period Applicant were making payment but the bonafide approach of the Applicant was not considered by the Respondent Bank. The account of the Applicants was regular in payment which shall be evident from the statement of account and requested for call upon the statement of account before this Tribunal.
During the COVID -19 period the Reserve Bank of India vide circular dated RBI/2019-20/186 being DOR. No.BP.BC.47/21.04,048/2019-20 dated 27th March 2020 announced in favour of all the borrowers declaring a three months moratorium period to all the installments falling due. The business of the Applicants having got severely affected by COVID -19. The Applicants are eligible for the moratorium. Inspite of request of the Applicant the
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Respondent Bank took no steps to provide the same to the Applicants which is illegal. If such Moratorium was provided to Applicant Company then the account would have never been classified as alleged Non-Performing Asset.
Reserve Bank of India again vide circular dated 23rd May 2020 being DOR. No.BP.BC.71/21.04.048/ 2019-2020 extended the moratorium period till 30th August 2020. Respondent bank is bound to inform all the borrower/s about such circular/facilities. In the above circumstances, Applicant No. 1 is entitled to get such facilities from the Respondent Bank. But the Respondent Bank has not provided such facilities to the Applicant Company. Applicants have annexed the said RBI Circular as Annexure ‘B’.
On 6th August 2020 the Reserve Bank of India came up with another circular being RBI/2020-21/17 BOR.No.BP.BC/4/21.04.048/2020-21 by directing all the Bank and Financial Institutions to restructure the advances lent to Micro, Small and Medium Enterprises (MSME) sector. Applicant No. 1 approached the Respondent Bank requesting restructure of the account as per the RBI Circular. But the Respondent Bank unlawfully turned down such request of the Applicant. Applicant has annexed the said circular of Reserve Bank of India Annexure “C
The Applicant No.2 was served upon with a notice dated 27th March 2023 issued by the Respondent Bank u/s.13(2) of the said Act, 2002. The loan account has been classified as Non-Performing Asset on 31st January 2023 and claimed for an elusive amount of Rs.58,55,81,274.00 as on 26th March 2023. Applicant has annexed copy of the said notice dated 27th March 2023 as Annexure — "D".
Applicants have alleged that the said notice issued under section 13(2) has been issued in contravention of the Securitization and
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Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
It is also alleged that classification of the account as NPA (Non-Performing Asset) issued under section 13(2) has been issued against the mandates of the said Act, 2002 and the rules framed therein. The Applicants have alleged impugned 13(2) notice is bad in law in the following manners:
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consideration, the impugned notice allegedly issued U/s.13(2) dated 27th March 2023 is bad in law.
i. In addition to the above the Applicants have always made regular payments to the respondent bank and thus the question of irregularity does not and can't arise. Even considering above fact the alleged classification of the account as Non-Performing Asset is bad in law.
j. Even after classification of account as NPA there was debit in the account
The Applicants have challenged the Demand Notice and rate of interest. Applicant also challenged the Possession Notice u/s 13(4) and annexed the Possession Notice as Annexure ‘F’.
The applicants alleged that no notice allegedly issued under Rule 8(1) and rule 8(2) of the said Rule, 2002 were served upon the applicants through electronic mode.
Thereafter on 27th December 2023 Applicant obtained a copy of the order dated 12th October 2023 passed by the District Magistrate, Kamrup U/s. 14 of the said Act, 2002. Applicant annexed the said Letter dated 27th December 2023 and copy of the order dated 12th October 2023 are annexed herewith and collectively marked as Annexure — "G"
It is further contended by the Applicant that the said order dated 12th October 2023 of the District Magistrate, Kamrup is primarily bad in law in view of the non-compliance on the provision of 13(2) and 13(4) of the said Act, 2002 and Rules made thereunder. Ld. District Magistrate has not expressed satisfaction in the order and 'Property Description' in the order dated 12th October 2023 passed by the District Magistrate, Kamrup, is incorrect.
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Applicant has further contended that repeatedly they have approached the bank for compromise settlement. However, the said proposals have not been considered by the Respondents. Hence, pending consideration of such settlement proposal the impugned measures were taken by the respondents by issuing notice u/s 13(2) and 13(4) of the said Act, 2002 and order of the Ld. District Magistrate which is bad in law and liable to be set aside.
Applicants have also filed IA/248/2024 on similar ground challenging the order dated 12th October 2023 of the Ld. District Magistrate, Kamrup but similar facts are not reflected here for the sake of brevity.
The Respondent Bank has filed objection to the SA and IA by one affidavit contending that the SA and IA/248/2024 are barred by limitation and liable to be dismissed and this Tribunal is lack of jurisdiction to entertain the Application.
In IA/248/2024 the Applicant prayed for restoration of possession of the secured properties taken by the Respondent Bank. Respondent Bank has contended that Applicant no. 1 availed various credit facilities from the Bank and by creating security interest the Applicants were granted a Term Loan of Rs.53,52,00,000/- for the purpose of expansion of business.
Respondent Bank has annexed copy of Arrangement Letter dated 08/10/2021 vide Annexure ‘A’ The applicant no. 1 represented by its directors had executed an Agreement of Loan for overall limit amongst others on 09.11.2021 which is annexed as letter "В".
Mr. Manoj Kumar Goyal and Ms. Pooja Goyal to secure the said facilities of Rs. 53,32,00,000.00 had executed a Deed of Guarantee for overall Limit the said document dated 09.11.2021 is annexed vide letter "С".
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In the year 2022, the applicant no. 1 represented by its directors had again applied to the applicant for a (GECL 1.0 extension) facility (Term loan) to the tune of Rs. 13,94,00,000.00 for the purpose of expansion of its business. The Respondent bank considered the said application and by their sanction letter dated 31.03.2022. The sanction letter dated 31.03.2022 is annexed hereto and marked with the letter ‘D’.
The Applicant no. 1 represented by its directors had executed an Agreement of loan for overall limit on 08.06.2022. Photocopy of the said document is annexed as letter "E".
The Applicant no. 1 had executed an Agreement of Hypothecation of goods and assets on 08.06.2022. Photocopy of the said Agreement is annexed as letter ‘F’
In order to secure the said facility, applicant No. 2 had created mortgage by depositing with the respondent bank original title deeds in respect of commercial land and building bearing survey no. Dag no. 807, 808, 809, 811, 815, patta no.67, 98,187 situated at plot no. 1A/B, Brahmaputra Industrial Park, Gouripur, North Guwahati - 781030 measuring an area of 2 bighas 3 cottahs 10 lechas standing in the name of Sri Manoj Kumar Goyal. A copy of letter dated 09.11.2021 and 08.06.2022 confirming deposit of title deed is annexed as letter "G".
In order to secure the said facility, by mortgage, the applicant no. 2 had deposited with respondent bank original title deed in respect of residential building situated at Jagdamba Apartment, ASEB Road, Village - Sahar Ulubari Part-II, under Mouza-Ulubari, Guwahati - 781007 (Urban), admeasuring a total area of 1716 Sq. ft. standing in the name of Sri Manoj Kumar Goyal. A copy of letter annexed dated 09.11.2021 hereto and 08.06.2022 with confirming deposit of title deed is annexed as letter "H".
In order to secure the said facility, by mortgage, the applicant no. 2 had deposited with Respondent bank some original title deeds in respect of
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residential building which are described at paragraph ix,x.,xi.,xii upto xix vide letter I to S.
The applicants thereafter defaulted in making payment of the dues. Respondent Bank requested repeatedly to regularize the said account but without any result. Ultimately the said account was classified as N.P.A. on 30th January, 2023.
The respondent bank, had filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 being O.A. No. 293 of 2023 before the Learned DRT - 1, Kolkata inter alia for recovery of a sum of Rs. 59,41,61,190.00 only as mentioned in the said OA. The said OA is pending for adjudication. Inspite of service of summons the respondents/Applicants in this case have failed to enter appearance.
As the applicants did not pay any heed to the aforesaid proceeding as a result the Respondent bank was constrained to proceed under the said Act of 2002 and had issued a notice under section 13(2) of the said Act of 2002 interalia demanding a sum of 58,55,81,274.00. The said notice dated 27th March, 2023 was duly received by some of the borrower and guarantors, as would appear from the A/D cards and track reports downloaded from the official website of India post. The said demand notice was also affixed on conspicuous part of the properties and paper publications were made. The said notice dated 27.03.2023 along with postal receipts, A/d cards are annexed hereto and marked with the letter "T".
After receiving the said notice the borrower and guarantors made representation disputing the said notice. The respondent bank by its letter dated 26.07.2023 duly replied to the said notice interalia disputing the contents raised by the borrower and guarantors. A copy of the said notice dated 14.07.2023 and reply dated 26.07.2023 is annexed as letter "U".
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The respondent bank thereafter issued notice under Rule 8(1) of the SARFAESI Rules demanding possession of the secured assets. The said possession notice dated 23.08.2023 was duly served upon the borrower and guarantors by speed post with A/d. The said letter was duly received by the borrower and guarantors as would appear from the track reports of India Post. A copy of the said letter dated 23.08.2023 together with its enclosures, postal receipts and track reports are annexed and collectively marked with the letter "V".
The said possession notice was also published in two leading newspapers as provided under the statute, once in the 'Financial Express', 'Northeast Chronicle', 'Sangbad Prabha and 'Ekdin' all dated 23.08.2023. The said notice was also pasted on the mortgage property and photographs taken as provided under the statute. Copy of the said paper publications and photographs of pasting are annexed hereto and collectively marked with the letter "W".
In spite of receipt of the aforesaid notices, the applicants did not pay any amount for which the respondent bank was constrained to approach the Learned District Magistrate, Kamrup for taking physical possession of the mortgaged property and filed application and affidavit as provided under the statute. On 08.01.2024 learned District Magistrate, Kamrup has passed order for taking physical possession of the mortgaged properties. Copy of the said order dated 08.01.2024 is annexed hereto and marked as letter "X".
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The applicant No. 2 voluntarily handed over peaceful physical possession of the following properties to the Authorized officer on 20.01.2024 and 07.02.2024:
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measuring 2 (Two) kathas 10 (Ter lecha Stressed covered by Dag No.555 of K.P. Patta No. 145 of Village-Sahar Guwahati, Part- I, Athgaon, under Mouza - Guwahati in the district of Kamrup (Metro), Assam, Sale Deed No. 645/2014 in the name of Sri Manoj Kumar Goyal.
A copy of the said inventory and Panchanama, and photographs of taking possession are annexed hereto and marked with the letter "Y".
It is to place on record that the Applicant No.2 has also given written consent and undertaking to the Authorized officer of the Bank that he would also hand over peaceful possession of the following properties to the Bank in case the properties are sold in e-auction under the SARFAESI Act:
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about 1521 Sq Ft. (Super Built up area) in the First Floor and 814 Sq Ft (Super Ballt up ares) in the ground floor Area: 2335 sq. ft (SBU) along with a Car parking space in the ground Floor with a undivided proportionate area of land measuring more or less 289 Kathas 2 (Two) Chattaks, forming part of Plot no. 254 ,recorded in Khatian No. 176/5, situated within Mouza- Dabgram, J.L. No. 2, Sheet no. 7, Pargana Baikanthapur, P.S: Bhaktinagar, within Ward no 43 of Siliguri Municipal Corporation, district: Jalpaiguri, West Bengal, Sale Deed No 4390/ 2008 in the name of Sri Manoj Kumar Goyal. Photocopy of the said letter are annexed as letter "Z".
Respondent Bank has contended that Applicant no. 2 is the guarantor and director of the Company and peacefully handing over physical possession the Bank issued one e-auction of the abovementioned properties under the provisions of the SARFAESI Act, 2002, hence this SA is not maintainable.
Respondent Bank denied that even after specific direction from the Reserve Bank of India, the Respondent Bank provided no moratorium to applicant, which is completely unlawful. I say that the Respondent Bank pursuant to RBI circulars had granted moratorium to the units which were not classified as NPA prior to COVID-19 pandemic.
It is contended by the Respondent Bank no documents has been annexed by the applicants from where it will reveal that the applicants had applied for restructuring of the loan account.
It is also denied by the Respondent Bank that when the applicants were making regular repayments, out of complete surprise the applicant No. 2 was served upon with a notice dated 27th March, 2023 issued by the Respondents U/s 13(2) of the said Act of 2002. It appears from the Records
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of Bank, duly acknowledged by the borrower and guarantors, establish that applicant being the borrower, have also availed Covid Emergency Line of Credit. Respondent Bank Sanctioned of Covid Emergency Line of Credit of Rs. 5.00 crore to be repaid within 24 months (including 6 months moratorium) at interest rate of 7.25% p.a. (1 Yr. MCLR) to be reset after one year vide sanction letter 03.06.2020.
a. Sanction of FITL amounting to 7.92 Crs, being interest at 9.70% p.a. from 01-APR-2021 to 31-MAR-2023, Total tenor of 4 years including moratorium of 24 months (from 01-APR-21 to 31-MAR-23) and repayment period of 24 months commencing from 30-APR-23 to 31-MAR-25.
b. Rescheduling of repayment of CCECL (outstanding 3.90 Crs.) with change in tenor of the loan from 24 months to 48 months (including moratorium of 14 months). The scheme was implemented in the account on 08.11.2021 vide sanction letter dated 08.10.2021.
c). The Company has again been provided with GECL 1.0 extension under the ECLGS scheme of Gol of 13.94 cr @ 1.0% above 6 months MCLR for a period of 60 months (including 24 months moratorium) to augment NWC and to meet operating liabilities due to Covid pandemic vide sanction letter dated 25.03.2022.
The Bank had disbursed Rs. 0.96 cr. out of the total sanction amount due to reasons communicated to the borrower vide letter CB/AMTI1/2021-22/594 dated 31.03.2022. Copies of sanction letter are annexed hereto and marked with the letter "Z-1".
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Respondents have denied the allegations in respect of notice dated 27th March, 2023 u/s 13(2) of the Sarfesi Act of 2002. It is contended by the Respondents that borrower/guarantors raised objection to the demand notice u/s 13(3A) of the Act and which was duly replied by the Bank. It further contended by the Respondent Bank that there is no wrong in classification of account as NPA. Account has been classified as NPA as per RBI Guidelines. The applicants never made regular payment and make default in payment for which account has been classified as NPA.
Respondent Bank took symbolic possession and made publication of Possession Notice on 23/08/2023. Respondent Bank denied the non-compliance of Rule 8(2). After issuance of Demand Notice and Possession Notice Respondent Bank has obtained the order of the Ld. District Magistrate, Kamrup dated 12th October, 2023 U/s 14 of the Act of 2002. Respondent Bank also denied that they have not taken possession forcefully. It is also contended by the Respondent Bank that Applicant has voluntarily handed over the properties for taking possession. It is further contended by the Respondent Bank that in respect of the instant loan account the loan was applied at Guwahati, loan agreement was executed at Guwahati and the properties are situated at Guwahati. Therefore, this learned tribunal lacks jurisdiction to entertain the application.
On the above pleadings the Respondent Bank has prayed for dismissal of the SA and IA.
From the pleadings of the parties the following issues are to be determined in this case.
i) Whether classification of account as NPA on 31/01/2023 is valid as per RBI Master Circular - Income Recognition, Asset Classification, Provisioning and Other Related Matters.
ii) Whether the order of the Ld. District Magistrate, Kamrup is in accordance with section 14 of the Sarfaesi Act.
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Findings
Issue No. 1:
Due to default the account has been classified as NPA on 31/01/2023. As per Demand notice dated 27/03/2024 the Respondent Bank has claimed amount of Rs.58,55,81,274.00. It is submitted by the Ld. Advocate for the Applicant that classification of account as NPA is illegal as the Cash Credit amount was not above the limit.
It is argued by the Ld. senior counsel for the Respondent Bank that the account can be classified as NPA even if Cash Credit loan account is under limit. Ld. senior counsel also argued that as stock statement was not submitted by the Applicant in respect of Cash Credit, the account has been classified as NPA.
Ld. senior counsel refers to RBI Guidelines 2009. The RBI Guideline applicable to the present case is issued on 01/04/2023. The above guidelines are similar to the RBI Guidelines 2009.
As per paragraph 2.1.1 an asset, including a leased asset, becomes non- performing when it ceases to generate income for the bank.
Paragraph 2.1.2 provides that a non-performing asset (NPA) is a loan or an advance where;
ii. the account remains ‘out of order’ as indicated at paragraph 2.2 below, in respect of an Overdraft/Cash Credit (OD/CC),
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iii. the bill remains overdue for a period of more than 90 days in the case ofbills purchased and discounted.
Paragraph 2.2 related to ‘Out of Order’ status
2.2.1 provides a CC/OD account shall be treated as ‘out of order’ if:
i) The outstanding balance in the CC/OD account remains continuously in excess of the sanctioned limit/drawing power for 90 days, or
ii) The outstanding balance in the CC/OD account is less than the sanctioned limit/drawing power but there are no credits continuously for 90 days, or the outstanding balance in the CC/OD account is less than the sanctioned limit/drawing power but credits are not enough to cover the interest debited during the previous 90 days period.
The statement of account filed by the Applicant limit of Cash Credit facilities is Rs. 41,50,00,000/-. In respect of entries of debit and credit dated 31/12/2022, 20/12/2022, 17/12,2022, 14/12/2022, 01/12/2012,28/11/2022, 26/11/2022,18/11/2022 and 11/11/2022 amount is within limit but on 01/11/2022 the amount was above limit.
At the time of argument Ld. Advocate for the Applicant submits that there is temporary deficiency but the account was under limit. Outstanding was under limit of Rs. 41,50,00,000/-.
On perusal of the statement of account it appears that during last 90 days Bank has charged interest on 30/11/2022
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Rs. 37,29,013.00 and the Applicant paid interest on
31/12/2022 Rs. 38,62,886.00.
It has been argued by Ld. Senior Counsel for the Respondent Bank that there is no stock statement submitted by the Applicant.
4.2.4 of RBI Master Circular speaks about Accounts with temporary deficiencies.:
The classification of an asset as NPA should be based on the record of recovery. Bank should not classify an advance account as NPA merely due to the existence of some deficiencies which are temporary in nature such as non-availability of adequate drawing power based on the latest available stock statement, balance outstanding exceeding the limit temporarily, non-submission of stock statements and non-renewal of the limits on the due date, etc. In the matter of classification of accounts with such deficiencies banks may follow the following guidelines:
a) Banks should ensure that drawings in the working capital accounts are covered by the adequacy of current assets, since current assets are first appropriated in times of distress. Drawing power is required to be arrived at based on the stock statement which is current. However, considering the difficulties of large borrowers, stock statements relied upon by the banks for determining drawing power should not be older than three months. The outstanding in the account based on drawing power calculated from stock statements older than three months, would be deemed as irregular.
b) A working capital borrowal account will become NPA if such irregular drawings are permitted in the account for a continuous period of 90 days even though the unit may be working or the borrower's financial position is satisfactory.
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c) Regular and ad hoc credit limits need to be reviewed/ regularised not later than three months from the due date/date of ad hoc sanction. In case of constraints such as non-availability of financial statements and other data from the borrowers, the branch should furnish evidence to show that renewal/ review of credit limits is already on and would be completed soon. In any case, delay beyond six months is not considered desirable as a general discipline. Hence, an account where the regular/ ad hoc credit limits have not been reviewed/ renewed within 180 days from the due date/ date of ad hoc sanction will be treated as NPA.
4.2.5 of RBI Master Circular speaks about Upgradation of loan accounts classified as NPAs.
The loan accounts classified as NPAs may be upgraded as ‘standard’ asset only if entire arrears of interest and principal are paid by the borrower. In case of borrowers having more than one credit facility from a bank, loan accounts shall be upgraded from NPA to standard asset category only upon repayment of entire arrears of interest and principal pertaining to all the credit facilities. With regard to upgradation of accounts classified as NPA due to restructuring, non-achievement of date of commencement of commercial operations (DCCO), etc., the instructions as specified for such cases shall continue to be applicable.
In this case Applicant has not filed stock statement within three months of classification of account as NPA. An account even if under limit and there is temporary deficiency, the account will be treated as NPA if there is no adequate stock in respect of Cash Credit Facilities as the stocks are first charge to the loan.
Ld. Senior Counsel for the Respondent Bank refers to statement of account filed by the Applicant, at page 128 of SA it shows that on
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11/09/2022 that stock due for collection. There is evidence from the side of the Applicant from the statement of account that stock statement was due from Applicant during 90 days from the date of NPA.
As per RBI circular 4.2.4 Accounts with temporary deficiencies a cash credit account can be classified as NPA.
In the above context there is judgment of Hon’ble High Court Calcutta in the matter of Nik-Nish Retail Pvt. Ltd. & Anr. V. Union Bank & Ors. at paragraph 14 Hon’ble High Court has held that :
“14. I have no hesitation to hold that the borrower was not entitled to have the status of the account upgraded, and that there was no waiver on the part of the bank to proceed against the petitioners. The scheme of the Act envisages grant of 60 days time to the defaulter for clearance of the liability or to raise objection. Even if the defaulting party falls short of paying Rs. 1/- of the amount specified in the demand notice within the permitted period, its account would still be a ‘non-performing asset’ and continue to be treated as such and the secured creditor is, in the circumstances, entitled to initiate further action in terms of provisions of the Act including taking measures to take possession of the secured assets after the period of 60 days has expired if no objection is received in the meantime or the objection to the demand notice has been overruled. Question of waiver does not and cannot arise simply because certain payments had been credited in the cash credit account. The period of 60 days is the time limited for clearing the liability and if the liability does not stand cleared, notwithstanding part payment the secured creditor is well within its right to exercise power conferred by Section 13(4) of the Act. The contention, accordingly, stands overruled.”
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Therefore, due to non-filing of stock statement the classification of Cash Credit facilities declared as NPA on 31/01/2023 is valid. Issue no. i) is answered in favour of the Respondent bank.
Issue No. ii) and iii):
At the time of hearing Ld. Sr. Counsel Mr. Joy Saha submitted that Authorised Officer has taken possession of some of the properties on voluntarily delivery of property by the Applicant/Borrower.
In the above context Ld. Senior Counsel Mr. Joy Saha for the Respondent Bank at the time of hearing showed letter dated 20/01/2023 of Mr. Manaj Kumar Goyal to the Authorized Officer of the Bank (annexed in the written objection to the IA at page 480) stating that he had sent Rahul Sutradhar alongwith key of the Flats provided free access of Authorised Officer drawing panchanama and inventory but shall not be in a situation to confirm and commit any documents at the moment and Bank had put their lock and sealed flats. Sl. No. 1. Flat no. 4B,Kohinoor Classic, Sl. no. 2. B3N Block B Lake View Apartment,3) Flat no. B3S Block B , Lake View Apartment, 4) Flat no. 103,1st Floor Core Residency,5) Unit no. IC 1st Floor Balaji Point all situated in Gowhati. Mr. Manaj Kumar Goyal further assured that he will hand over the documents in the coming week.
Accordingly, Rahul Sutradhar and other witness signed the inventory and panchanama. During hearing Ld. Senior Counsel Mr. Joy Saha for the Respondent Bank submitted that factory premises has not been taken possession.
Ld. Advocate for the Applicant has disputed the letter at the time of hearing but has not taken any steps to prove that the letter of Mr. Manaj Kumar Goyal, who is Applicant no. 2 is not issued by Mr. Manaj Kumar Goyal.
There are no such pleadings in the SA, IA and supplementary affidavit. In the reply Applicant denied about the handing over properties. Burden is
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on the applicant to prove that the letter dated 20/01/2023 authorizing Mr. Rahul Sutradhar to hand over key of the Flats and assured the Bank to make over the documents is either fabricated or forged documents. The letter of Mr. Manaj Kumar Goyal is sufficient to prove that Applicant voluntarily made over some of the flats and agreed to make over documents of the Flats to the Bank.
At the time of hearing, Ld. Senior Counsel submitted that Bank has not taken over possession on the basis of the order of Ld. District Magistrate, Kamrup. Therefore, the said orders which are challenged by the Applicant become redundant as Applicant no. 2 voluntarily surrendered the flats to the Authorised Officer of the Bank. Therefore, Issue no. (ii) becomes redundant and Issue no. iii) is answered in favour of the Bank.
Issue no. iv):
Since the Applicant has voluntarily delivered some of the Flats which are secured property to the Bank and Bank has not taken possession of the properties forcibly on the basis of the order passed by the Ld. District Magistrate, Kamrup, the Applicants are not entitled to get any relief in the SA and IA. Hence, the application under section 17(1) of the Sarfaesi Act and IA/248/2024 are not maintainable and liable to be dismissed . It is ordered:
O R D E R
i) SA/26/2024 and IA/248/2024 are dismissed on contest against the Respondents.
ii) Interim order passed on 07/02/2024 is vacated.
Copy of the Judgment/Final Order be uploaded in the
Tribunal’s website.
File is consigned to the Record Room.
(Dictated to P.S., transcribed by her, corrected, signed and pronounced by me in the open Court on this the day 21st March, 2025.
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Presiding Officer
| Order Sheet (continuation) | |
|---|---|
| Case NO. SA/26/2024 | POOJA TILES AND SANITARY PVT.LTD. & ORS. VS. STATE BANK OF INDIA & ORS. |
| Date of the Order |
Order with Signature Office action with date and dated Signature of Parties when necessary |
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| 21/03/2025 | Present: |
|---|---|
| For Applicant: Mr. D. Karmakar and Mr. S. Ojha, Ld. Counsels |
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| For Respondents: Mr. Joy Saha, Ld. Sr. Counsel Mr. Nimesh Mishra, Mr. Anirban Pramanik and Ms. A. Rakshit Ld. Counsels |
|
| Matter was heard in open Court on different dates and lastly on 06/01/2025. The detailed order in twenty three pages annexed separately. The gist of the order is as follows: |
|
| O R D E R | |
| i) SA/26/2024 and IA/248/2024 are |
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| dismissed on contest against the Respondents. |
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| ii) Interim order passed on 07/02/2024 is vacated. |
|
| Copy of the Judgment/Final Order be uploaded in the Tribunal’s website. |
|
| File is consigned to the Record Room. (Dictated to P.S., transcribed by her, corrected, signed and pronounced by me in the open Court on this the day 21stMarch, 2025. |
|
| (Ambuja Mohan Das) Presiding Officer |
3 issues framed by the court
Whether classification of loan account as non-performing asset (NPA) is valid per RBI guidelines.
Whether the District Magistrate's order under Section 14 of SARFAESI Act is valid and enforceable.
Whether the applicant is entitled to restoration of possession voluntarily handed over by the guarantor.
Colour shows how this judgement treated each authority
Nik-Nish Retail Pvt. Ltd. & Anr. V. Union Bank & Ors.Relied on¶158
Nik-Nish Retail Pvt. Ltd. & Anr. V. Union Bank & Ors.
5 provisions across 3 enactments
Pooja Tiles and Sanitary Pvt. Ltd.
Sri Manoj Kumar Goyal
Ms Pooja Goyal
State Bank of India
Authorised Officer, State Bank of India
Ambuja Mohan Das
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
