Allowed

Arjun Sethi v. Indian Overseas Bank

DRT27 May 2025SA/365/2024

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal allowed the applicant's secularization application, quashing SARFAESI proceedings initiated by the bank. The tribunal held that the initial classification of loan accounts as Non-Performing Assets was illegal, violating RBI guidelines and Supreme Court stay orders during the pandemic period, rendering all subsequent enforcement actions baseless.

What did the court decide?

The SARFAESI proceedings initiated by the respondent bank were quashed. The respondent is directed to initiate fresh proceedings according to law.

Arjun Sethi versus Indian Overseas Bank — Banking and Recovery | 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.365/2024

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Date of Institution: 13.09.2024 Date of Decision: 27.05.2025

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Sh. Arjun Sethi S/o Sh. Ashok Sethi, R/o House No. 129, Urban NRI Enclave (Carlton Woods), Phase-2, Village Jhamat, Shaheed Sukhdev Nagar, (South City), Ludhiana, District Ludhiana

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--Applicant Versus

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Authorised Officer, Indian Overseas Bank, Asset Recovery Management Branch, Chandigarh, SCO3025-26, Sector-22D, Chandigarh-160022

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--Respondent

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Argued by: Sh. Akhilesh Vyas, Advocate along with Ms. Deepshikha Gupta, Advocate for Applicant Sh. V.K. Sachdeva, Advocate assisted by Sh. Saurav Goyal, Advocate for Respondent

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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, 2002 (hereinafter referred to as ‘the Act’ for brevity) to set aside e-auction sale notice dated 21.08.2024 (Annexure A13), whereby alleged sale is fixed for 27.09.2024, possession notice dated 09.08.2024 (Annexure A12) and demand notice dated 27.03.2024 (Annexure A6). (2) It was stated in the application that applicant has availed credit facilities i.e., Housing Loan-I of Rs. 1,66,73,000/- and Housing Loan-II of Rs.27,00,000/-; that to secure the above said facilities applicant mortgaged the property i.e., Equitable Mortgage of Residential property of Plot measuring 500 sq. yards and building constructed thereupon, situated at House No. 129, NRI Enclave (Carlton Woods) Phase-2, Village Jhammat, Shaheed Sukhdev Nagar, South City, Tehsil & District Ludhiana owned by applicant as per Sale Deed bearing vasika No. 9529 dated 02.02.2015; that

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the above property mentioned was collaterally mortgaged for Credit Facilities availed by M/s SCASA Nutrients Pvt. Ltd.; that another financial facility has also availed by M/s SCASA Organics Pvt. Ltd.; that applicant is the Director of both the above mentioned Companies; that applicant had been paying the installments without being any fault as there was no dispute with the respondent; that subsequently Covid19 Pandemic was spread in the country due to which the situation turned bad to worse; that all the businesses were shut down then also applicant paid the installments to the respondent; that instead of paying the said amounts loan accounts of applicant were classified illegally as NPA on 03.09.2020 by the respondent; that even after declaration of the accounts as NPA, the respondent promised the applicant that they will get the loan accounts of the applicant out of NPA category as 180 days criteria has not been followed in the present case; that during that period Reserve Bank of India had issued Resolution Framework Guidelines 1.0 and Resolution Framework Guidelines 2.0 during which moratorium period begun from 01.03.2020 to 22.05.2020 and that moratorium period was extended from 23.05.2020 to 30.08.2020 by resolution/ circulars/ notifications issued by Reserve Bank of India; that Reserve Bank of India had issued circular dated 27.03.2020 and 17.04.2020 by providing extension of moratorium period for 03 months and subsequently, Circular RBI/2019-20/244 DOR No. B.P.B.C.71/21.040.048/2019-20 dated 23.05.2020 was again issued announcing certain regulatory measures in wake of disruptions on account of Covid-19 Pandemic; that in this Circular it was stated that all Commercial Banks, Co-operative Banks, all India Financial Institutions and Non-Banking Financial Companies are permitted to extend the moratorium by another 03 months i.e., from 01.06.2020 to 31.08.2020 with regard to payment of all installments in respect of Term Loans; that in the meantime various petitions were filed before Hon’ble Apex Court with regard to the moratorium period, charging of interest by the Banks and declaration of accounts as NPA; that in one of the said Writ Petition (Civil) No. 825/2020 in which Hon’ble

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Supreme Court of India vide its order dated 03.09.2020 ordered that accounts, which were not declared NPA till 31.08.2020 shall not be declared as NPA till further orders; that even resolution framework 2.0 was also issued dated 05.05.2021 regarding Covid-19 stress of individual and small businesses; that ignoring all the Circulars and Notifications issued by Government of India during Covid-19 Pandemic including the stay order passed by Hon’ble Supreme Court of India, respondent had wrongly classified the account as NPA on 03.09.2020 and issued notice under Section 13(2) of the Act dated 12.04.2020 posted by respondent on 12.04.2021; that representation cum objections were duly sent to the respondent by applicant but the respondent declined the said objections and issued the possession notice; that thereafter, fresh demand notice under Section 13(2) of the Act was issued on 27.03.2024; that there is no reasoning given in the said notice as to why the earlier notice under Section 13(2) of the Act was withdrawn by the respondent; that applicant has already approached the respondent highlighting his concern being an MSME Unit still the point was not considered by the respondent intentionally and the policy dated 17.03.2016 has been violated; that respondent was required to sent the case of applicant to the Designated Committee before classification of loan accounts as NPA but the respondent has not followed the procedure; that thereafter, Writ Petition No. 476/2020 titled as Small Scale Industrial Manufacturers Association Vs. Union of India in which the order staying the classification of loan accounts as NPA was vacated on 23.03.2021; that the above mentioned clarification apparently states that no account could have declared as NPA by any bank or Financial Institution during this period from 31.08.2020 to 23.03.2021; that hence, loan accounts classified as NPA on 30.09.2020 is wrong and illegal in the eyes of law and is liable to be set aside; that on 20.05.2024 applicant filed objections under Section 13(3-A) of the Act against demand notice dated 27.03.2024, wherein it is specifically stated that the applicant is a promoter of the Company M/s SCASA Nutrients Pvt. Ltd., which is an MSME Unit registered with Ministry of MSME,

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Government of India; that respondent intentionally and deliberately did not considered the said representation nor made any reply to the same; that applicant filed a CWP No. 13710/2021 before the Hon’ble Punjab and Haryana High Court, Chandigarh against respondent and Hon’ble High Court has granted stay in favour of the applicant and later on directed the parties to approach Hon’ble Debts Recovery Tribunal, Chandigarh; that during the period when stay orders were intact as passed by the Hon’ble High Court the respondent again proceeded against the applicant and for the said reason the applicant was constrained to file the Contempt Petition bearing COCP No. 1753/2022; that thereafter, respondent filed OA No. 2149/2021 before this Tribunal; that respondent has not replied to the representation under Section 13(3-A) of the Act filed by applicant in proper manner vide its reply dated 06.06.2024; that thereafter, respondent again issued possession notice dated 09.08.2024 against immovable mortgaged property i.e., residential house in which the total outstanding amount was mentioned as Rs.2,49,75,865/-; that issuance of impugned notice and especially the possession notice is totally wrong and illegal because there are huge contradictions in the documents issued by respondent itself; that the demand notice dated 27.03.2024 was issued for sum of Rs.2,49,75,865/- and it was only issued to Sh. Arjun Sethi, whereas possession notice was wrongly been issued to M/s SCASA Nutrients Pvt. Ltd. adding the collateral security without any prior demand notice to M/s SCASA Nutrients Pvt. Ltd. regarding the present loan; that respondent has also added the amount outstanding towards M/s SCASA Nutrients Pvt. Ltd. and the respondent has issued impugned possession notice wrongly; that the said possession notice was not published and never been affixed on the conspicuous part of the property; that immediately after issuance of the possession notice, respondent has issued e-auction sale notice dated 21.08.2024 for the sale on 27.09.2024 being wrong and illegal in the eyes of law; that it appears that respondent want to sale the property in hurried manner; that no date of auction or date of sale can be fixed in absence of any notice of

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SA/365/2024 ARJUN SETHI VS. INDIAN OVERSEAS BANK

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redemption, which in the present case has not been issued by the respondent; that the reserve price assessed by the respondent is totally wrong and the same is very lower side, whereas the actual market price of the property is more than the reserve price in the present time; that no fresh valuation report was obtained by the respondent from the approved valuer before putting the property on sale; that the said sale notice was neither published in the newspaper nor affixed or served as per Rule 8 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as ‘the Rules’ for brevity); that mortgaged properties are not registered under the CERSAI, which is mandatory for the respondent to register its charge under CERSAI otherwise respondent cannot initiate action under the Act in those properties as per Section 26-D of the Act. It was prayed that the present SA may kindly be allowed.

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(3) Reply filed by respondent.

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(4) It is stated in the reply that applicant has not come to this Tribunal with clean hands and has concealed the true and material facts from this Tribunal and misstated the true and material facts, therefore applicant is not entitled to any relief as sought in the SA; that earlier applicant was availing the loan facilities from the Cholamandlam Investment and Finance Company Ltd.; that thereafter, applicant approached the respondent for availing Housing Loan-I of Rs.1,66,73,000/and Housing Loan-II of Rs.27,27,000/- vide sanction letter dated 16.11.2018; that Housing Loan-I of Rs.166.73 Lacs was repayable in 100 EMIs i.e., Rs.2,37,593.01p and Housing Loan-II of Rs.27,27,000/was repayable in 44 EMIs i.e., Rs.72,673.95p; that the said facilities were secured by way of Equitable Mortgage of House No. 129, NRI Enclave (Carlton Woods) Phase-II, Village Jhammat, Shaheed Sukhdev Nagar, South City, Tehsil and District Ludhiana owned by Sh. Arjun Sethi S/o Sh. Ashok Sethi as per Sale Deed bearing vasika No. 9529 dated 02.02.2015; that the above said house was mortgaged in the loan account of the applicant on 13.12.2018; that applicant has also signed the letter evidencing deposit of Title Deed of the mortgaged property on

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SA/365/2024 ARJUN SETHI VS. INDIAN OVERSEAS BANK

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14.12.2018; that the above said house also stands mortgaged by applicant being guarantor and Director in the loan account of M/s SCASA Nutrients Pvt. Ltd. on 31.12.2018; that loan accounts of applicant were running irregular since long and applicant failed to maintain the financial discipline of the bank and did not adhere to the terms and conditions of loan documents and sanction letter; that respondent had repeatedly requested the applicant vide letters dated 15.07.2020, 18.01.2021 and 06.03.2021 to clear the entire dues but applicant failed to regularize the loan accounts; that loan accounts of the applicant were not declared as NPA due to the Government Guidelines on moratorium period which was granted upto 31.08.2020; that later on, Hon’ble Supreme Court has also issued directions that no account shall be declared as NPA till further order, which were not declared as NPA till 31.08.2020; that therefore, the loan accounts of applicant and loan account of other borrower company i.e., M/s SCASA Organic and M/s SCASA Nutrients were declared as NPA on 31.03.2021 w.e.f. 03.09.2020; that thereafter, respondent had issued the demand notice dated 12.04.2021 under Section 13(2) of the Act; that in the said notice date was inadvertently mentioned as 12.04.2020 instead of 12.04.2021 and the said notice was sent through registered post on 12.04.2021; that respondent has again issued statutory demand notice dated 27.03.2024 under Section 13(2) of the Act upon applicant through registered post on 03.04.2024 to clear the dues of Rs.2,49,75,865/- stands outstanding within a period of 60 days; that in the said notice it was duly informed that this notice has been issued in supersession of earlier demand notice dated 12.04.2021; that on receipt of notice under Section 13(2) of the Act, applicant has moved representation dated 20.05.2024 under Section 13(3-A) of the Act received on 27.05.2024; that respondent has duly considered the representation and duly replied vide letter dated 06.06.2024 through registered post on 07.06.2024, wherein each and every objections raised by the applicant has been replied in detail; that inspite receipt of notice under Section 13(2) of the Act, applicant failed to clear the outstanding dues of the

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respondent; that therefore, respondent issued notice dated 09.08.2024 under Section 13(4) of the Act upon applicant through registered post on 12.08.2024 in both the loan accounts i.e., applicant as well as M/s SCASA Nutrients Pvt. Ltd.; that the said possession notice was published in two newspapers i.e., ‘Times of India and Jagbani’ on 13.08.2024; that the said notice was also pasted upon the mortgaged properties on 09.08.2024; that thereafter, in order to recover its outstanding dues, respondent issued sale notice dated 21.08.2024 sent through registered post on 22.08.2024, whereby mortgaged property i.e., residential house was put on sale on 27.09.2024; that the said sale notice was published in two newspapers i.e., ‘Times of India and Jagbani’ on 24.08.2024; that the said notice was also pasted upon the mortgaged properties on 27.08.2024; that before putting the mortgaged property on e-auction, respondent has obtained valuation report from Bank’s Empaneled Valuer; that presently huge amount i.e., Rs.2,65,44,729/- stands outstanding in respect of Housing Loan as on 31.12.2024 alongwith interest in the loan accounts of applicant; that respondent has filed OA No.2149/2021 before this Tribunal for recovery of Rs.2,05,85,664 as on 24.06.2021/-; that applicant had filed the present SA against the respondent without any cause of action and grounds, whereas each and every action of respondent is just, legal and as per the provisions of the Act and the Rules. It was prayed that as such the present SA filed by applicant deserves to be dismissed.

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(5) No replication filed by applicant to the reply filed by respondent.

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(6) I have heard arguments advanced by Sh. Akhilesh Vyas, Ms. Deepshikha Gupta, Sh. V.K. Sachdeva, Advocates and gone through the record carefully. (7) Sh. Akhilesh Vyas, Advocate argued that loan accounts of applicant were classified as NPA on 03.09.2020 by ignoring all the Circulars and Notifications issued by Government of India during Covid-19 Pandemic including the stay order passed by Hon’ble Supreme Court of India. It was further argued

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that Hon’ble Supreme Court of India has passed an order in Writ Petition No. 476/2020 titled as SmallScale Industrial Manufacturers Association Vs. Union of India in which the order staying the classification of loan accounts as NPA was vacated on 23.03.2021 and stated that no account could have declared as NPA by any Bank or Financial Institution during this period from 31.08.2020 to 23.03.2021. Therefore, the loan accounts were classified as NPA on 03.09.2020 is bad in the eyes of law and therefore, all the proceedings initiated under the Act by respondent are illegal. (8) Per contra , Sh. V.K. Sachdeva, Advocate argued that loan accounts of applicant were classified as NPA as per guidelines of Reserve Bank of India and there is no illegality in it. It was further argued that loan accounts of the applicant were not declared as NPA due to the Government Guidelines on moratorium period, which was granted upto 31.08.2020. It was further argued that Hon’ble Supreme Court of India has also issued directions that no account shall be declared as NPA till further orders, which were not declared as NPA till 31.08.2020. It was further argued that therefore, the loan accounts of applicant and loan accounts of other borrower company i.e., M/s SCASA Organic and M/s SCASA Nutrients were declared as NPA on 31.03.2021 w.e.f. 03.09.2020.

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(9) It is admitted fact between both the parties that loan accounts of applicant were not NPA till 31.08.2020. It was further admitted by both the parties that in light of various Circulars issued by Reserve Bank of India and order passed by Hon’ble Supreme Court of India no account was to be classified/declared as NPA till 23.03.2021. It is further admitted fact between the parties that loan accounts of applicant were classified as NPA on 03.09.2020.

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(10) It was argued by Sh. V.K. Sachdeva, Advocate that there was a difference between the classification and declaration of NPA but he was failed to explain the above difference. No legal provision or case law was put before the Tribunal that classification and declaration of a loan account as NPA are two different stages. Respondent has accepted that loan accounts of applicant and loan accounts of other

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borrower company i.e., M/s SCASA Organic and M/s SCASA Nutrients were declared as NPA on 31.03.2021 w.e.f. 03.09.2020. There is no legal provision in which it was provided that loan account will be declared as NPA on any different date w.e.f. any different date. Hon’ble Supreme Court of India in Writ Petition(S) (Civil) No.(S) 825/2020 Gajendra Sharma Vs. Union Bank of India and Another on 03.09.2020 it was ordered as under:

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“ Mr. Harish Salve, Learned Senior Advocate, submitted that no account shall became NPA atleast for a period of two months.

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In view of the above, the accounts which were not declared NPA till 31.08.2020 shall not be declared NPA till further orders .”

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(11) Above order shows that there was no difference between classification and declaration of loan account as NPA.

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(12) After considering the above facts and circumstances, in the considered opinion of this Tribunal, loan accounts could not be classified as NPA on 03.09.2020 in light of Circulars issued by Reserve Bank of India as well as order passed by Hon’ble Supreme Court of India. There is no force in the argument of Sh. V.K. Sachdeva, Advocate that despite the Circulars issued by Reserve Bank of India and order passed by Hon’ble Supreme Court of India, loan account of applicant and other Firms can be classified as NPA during the period in which the said action was restrained and loan accounts may be declared as NPA after the said period w.e.f. date of classification as NPA. (13) In the considered opinion of this Tribunal when initial stage of proceeding under the Act was illegal then whole building constructed upon it is also without authority and base as well as liable to be quashed on this only ground.

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(14) Sh. Akhilesh Vyas, Advocate further argued that applicant is an MSME Unit but respondent has not referred the matter to the Designated Committee before classification of loan accounts as NPA as per policy dated 17.03.2016 issued by Reserve Bank of India.

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(15) Per contra , Sh. V.K. Sachdeva, Advocate argued that applicant is relying upon the guidelines that were issued for MSME Unit, wherein the loan account of applicants were Housing Loan accounts. 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 loan accounts of applicants were Housing Loan accounts.

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(16) Copy of Udhyam Registration Certificate is annexed as Annexure A1 along with SA is a photocopy, which is not legible. Neither the date of Certificate was shown in the photocopy (Annexure A1) nor the date was pleaded in the SA.

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(17) In light of above, applicant cannot claim any benefit on the basis of being MSME Unit and in light of RBI Circular dated 17.03.2016.

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(18) Ms. Deepshikha Gupta, Advocate argued that respondent had issued notice under Section 13(2) of the Act dated 27.03.2024 in which, there is no reasoning given as to why the earlier notice under Section 13(2) of the Act dated 12.04.2020 was withdrawn by the respondent. It was further argued that after receiving notice under Section 13(2) of the Act dated 27.03.2024, applicant has sent representation under Section 13(3-A) of the Act dated 20.05.2024 to respondent but the same was not duly replied by respondent.

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(19) Per Contra , Sh. V.K. Sachdeva, Advocate argued that respondent has issued demand notice dated 27.03.2024 under Section 13(2) and in the said notice it was duly informed that this notice has been issued in supersession of earlier demand notice dated 12.04.2021. It was further argued that on receipt of notice under Section 13(2) of the Act, applicant has filed representation dated 20.05.2024 under Section 13(3-A) of the Act received on 27.05.2024. It was further argued that respondent has duly considered the representation and duly replied vide letter dated 06.06.2024 through registered post on 07.06.2024, wherein each and every objections raised by the applicant has been replied in detail.

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(20) It reveals from record that reply to notice under Section 13(2) of the Act dated 27.03.2024 was sent on 20.05.2024 to respondent and representation under Section 13(3-A) of the Act is Annexure A10 to the SA. It further reveals from record that respondent, replied to the above representation on 06.06.2024 as argued by Sh. V.K. Sachdeva, Advocate but no copy of reply filed by respondent along with the reply to SA. (21) In light of above, though sending of reply was argued by Sh. V.K. Sachdeva, Advocate but in absence of any copy of reply along with the reply to SA it cannot be presumed that the said reply was sent on all points objected in the representation.

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(22) Ms. Deepshikha Gupta, Advocate further argued that possession notice dated 09.08.2024 was not published in two leading newspapers as per Rules as well as the newspapers were not widely circulated in the area concerned. It was further argued that the said possession notice was also not affixed on the conspicuous part of the property as per the Rules. (23) Per Contra , Sh. V.K. Sachdeva, Advocate argued that possession notice dated 09.08.2024 was duly served upon the applicant as per Rules. It was further submitted that copy of possession notice, copies of receipts of registered post along with tracking reports, paper publication and proof of pasting are annexed as Annexures R11 to R13 with the reply. It was further argued that possession notice was published in two leading newspapers, one in vernacular as well as both the newspapers have wide circulation in the area concerned. It was further argued that no evidence is on record that the newspapers have no wide circulation in the area concerned.

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(24) Annexure R13 is not clear to show as to who has pasted the notice, where the notice was pasted, what was the notice and when the same were pasted. (25) In light of above factual position and evidence on record, this Tribunal is of the considered opinion that the possession notice was not served upon applicant as per Rules.

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(26) Sh. Akhilesh Vyas, Advocate further argued that respondent had never created its charge against the properties in question with CERSAI.

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(27) Per contra , Sh. V.K. Sachdeva, Advocate argued that respondent had duly created its charge against the properties in question with CERSAI and copy of CERSAI Certificate is annexed as Annexure R19 to the reply.

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(28) It revels from Annexure R19 that 03 pages were filed as the CERSAI Certificate in which second page i.e., page No. 96 of the reply is not related with the loan accounts of Sh. Arjun Sethi (applicant). It further reveals that the charge was created under the CERSAI on 15.06.2021 i.e., after the classification of accounts as NPA on 03.09.2020. Except it, respondent has not filed the complete CERSAI Certificate in respect of loan accounts of applicant.

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(29) Though the sale notice dated 21.08.2024 (Annexure A13) was also challenged in this SA but no arguments were advanced by any party regarding the sale notice.

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(30) No other point/argument was pressed or advanced by any party. (31) After considering the above facts and circumstances as well as evidence on record, present SA is liable to be allowed.

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(32) SA is allowed. SARFAESI proceedings initiated by the respondent is quashed since initiation as loan accounts were classified as NPA wrongly and illegally in contravention of guidelines issued by Reserve Bank of India as well as order passed by Hon’ble Supreme Court of India. It is made clear that respondent may again initiate fresh SARFAESI proceedings according to law.

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Record be consigned to record room after due compliance.

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Date: 27.05.2025

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Pronounced by me in the open Tribunal.

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(MRIDULESHKUMARSINGH) Presiding Officer, DRT-III, Chandigarh

Arjun Sethi v. Indian Overseas Bank

Case brief

What is this about?

What did the court decide?

Arjun Sethi v. Indian Overseas Bank

Case brief

What is this about?

What did the court decide?

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