Dismissed

Ms Prtibha Food Industries and Others v. Punjab National Bank

DRT6 Jan 2025SA/392/2022

Case brief

AI extract

What is this about?

The Tribunal rejected an application to quash SARFAESI action and a possession notice issued by Punjab National Bank. Finding procedural infirmities regarding non-joinder of necessary parties (mortgagor/guarantor) and lack of compliance with service requirements, the court dismissed the appeal, noting that dismissal of proceedings would not infringe equity of other stakeholders.

What did the court decide?

Application SA 392 of 2022 dismissed; no interim relief granted to quash SARFAESI action or possession notice.

Ms Prtibha Food Industries and Others versus Punjab National… — Banking and Recovery | DRT (2025)

SA 392 of 2022 [J)

DRT, PATNA

DEBTSRECOVERYTRIBUNALPATNA

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Presiding Officer :Shri Kaushalendra Yadav

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SA- 392 of 2022

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M/s Pratibha Food Industries (Proprietress: Smt. Sunita Kumari), Near Radio Station, Jethuli, Kachchi Dargha, P.S. : Fatuha, Patna 803201.

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Smt. Sunita Kumari, W/o Sri Sanjeev Kumar, Village Jethuli, Kachchi Dargha, P.S. : Fatuha, Patna 803201.

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Present Address: Shiv Nagar, Road No.2, Kheminichak, Near Ford Hospital, P.O. : Purvi Lakshmi Nagar, P.S. : Ram Krishna Nagar, Patna 800 027.

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Neeraj Kumar, S/o Sri Gopal Prasad, Village : Jethuli, Kachchi Dargha, P.5. : Fatuha, Patna 803201

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.........Applicants

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Versus

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The Authorised Officer, Punjab National Bank, Circle SASTRA, Patna North, R-Block, Chanakya Tower, Patna - 800001.

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The Branch Manager, Punjab National Bank, Patna City Branch, Patna - 800008.

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--respondents

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Present:

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For the Applicant : Sh. S.K.Srivastava, Advocate For the Respondent Bank : Sh. Manish Kishore, Advocate

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Dated: 06.01.2025

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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 issued by the respondent bank.

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During pendency of S. application, the applicant has filed Limitation

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Petition by way of IA 535/2022 With the prayer to condone the delay in

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SA 392 of 2022 [J]

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DRT, PATNA

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filing of present SA.

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The brief fact of the case is that the applicants availed some credit facilities from the respondent bank. To secure the repayment of loan amount, properties were mortgaged by the applicants. Due to default in repayment of dues of the bank, the accounts were classified as NPA on 31.03.2021. In order to recover outstanding dues, the respondent bank initiated SARFAESIAction against the borrower & guarantor and issued Demand Notice dated 30.06.2021u/s 13(2)of the act calling upon the borrower to make the payment of RS.32,95,305.84. Thereafter, the respondent took possession of the property by issuing Possession Notice dated 20.09.2021u/s 13(4) of the SARFAESIAct. The respondent bank proceeded further and put the property on auction sale, fixing the date of auction sale on 31.01.2022but the sale could not be conducted. Further, the respondent bank moved before District Magistrate u/s 14 for the physical possession of the properties and also informed to the applicant vide letter dated 21.11.2022intending to take physical possession of the properties. Aggrieved from the letter dated 21.11.2022,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 the respondent although approached the District Magistrate for physical possession of the property but the same has not taken yet. After knowledge of initiation of SARFAESIaction, the applicant was engaged in negotiation with the bank for settlement under OTStherefore, the application could not be filed within time and prayed for condonation of delay.

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It is further submitted that the Demand Notice dated 30.06.2021has been issued by the respondent bank for a highly inflated amount of RS.32,95,305.84whereas the respondent bank has filed OA 49/2022 before this Tribunal for the recovery of Rs.30,88,810.84.The demand notice was not served upon the applicants. The possession notice ~/

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SA 392 of 2022 [J)

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ORT. PATNA

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dated 20.09.2021issued against the security has aLsonot been served upon the appLicants. Neither it has been affixed on secured assets nor pubLishedin two leading newspapers. Moreover. the possession area of the mortgaged property has been mentioned as 1 Katha 16 Dhur vide Sale Deed No. 3991standing in the name Sri Gopal Prasad while area of the land mortgaged to the bank is onLy01Katha 04 Dhur only. The name of the borrower has also wrongLy been mentioned as "Pratibha Food Enterprises" instead of "Pratibha Foods Industries". Further, the respondent bank had issued an auction sale notice dated 08.11.2021fixing the date of auction sale on 09.12.2021.Against which the applicant had approached Hon'ble High Court of Patna vide CWJC No. 20397/2021and same was disposed of vide order dated 27.01.2022 with the direction to deposit 20% of amount mentioned in Demand Notice. It was also directed that in event of failure, the bank would be at Liberty to proceed in accordance with law. AccordingLy, applicant contacted the bank for settlement under OTS and in the meantime deposited Rs. 2 Lacsbut the respondent bank did not issue formaL Letter regarding settlement and proceeded u/s 14for physicaL possession of the property.

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On the contrary, ld. CounseLof the respondent bank submits that the present appLication is barred by Limitation. Furthermore, the reLief sought in the present application cannot be granted as the appLicant had aLready sought before the Hon'bLeHigh Court of Patna and the same was not entertained by the Hon'bLeCourt. The appLicantsaLso faiLed to compLy with the order of HonbLe High Court wherein undertaken to deposit 20%of Demand Notice neither submitted any proposal for settlement in compLianceof order. The Demand Notice dated 30.06.2021was served upon the appLicants against which the applicant had submitted its representation/objection and it was rejected by the bank on 24.08.2021. The possession notice dated 20.09.2021was aLso served upon appLicants through post. The

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SA 392 of 2022 [J]

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ORT. PATNA

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possession notice was also affixed on secured assets and published in Indian Express and Dainik Bhaskar on 25.09.2021. The amount mentioned in Demand Notice is due as on 30.06.2021while the OAhas been filed for the recovery of amount as on date of filing of OA. The applicants did not file any proof regarding extent of mortgage to distinguish and differentiate the extent of area mortgaged in favour of bank.

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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 application 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 when are said to be initiated and when it comes to an end.

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In the present matter the applicant stated that they were engaged In negotiation for settlement under OTS but in the meantime. the respondent bank approached the District Magistrate for physical possession which was informed to the applicant vide letter dated 21.11.2022.Finding no option, approached this Tribunal on 12.12.2022. Hence,it appears that proceeding u/s 13(4)did not comes to an end.

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11.On perusal of records it appears that the Demand Notice was issued on 30.06.2021but the postal receipt has not been filed with counter affidavit. Although, it has been filed with writtep ~uments, which is jol/ ",,, / \ .." \0'

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I'-.#PV' O~

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SA 392 of 2022 [J]

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DRT,PATNA

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not supported by affidavit on behalf of respondent bank. At the same time since the applicants had represented against the demand notice,the service of demand notice cannot be denied.

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It has been submitted on behalf of respondent that the representation was replied to by the bank vide letter dated 24.08.2021 (annexure - 5, page 40 of written argument of respondent bank)(Not supported by affidavit.

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Further. the possession notice was issued on 20.09.2021but to prove its service upon applicant the respondent neither filed any acknowledgment of receipt nor any postal receipt vide which possession notice was sent. The respondent has annexed the tracking report to prove the service of possession notice but from perusal of said tracking report it does not appear the name of person to whom the post was forwarded. Moreover. said post was sent on 30.09.2021while the possession was taken on 20.09.2021whereas the possession notice was published in Indian Express and Dainik Bhaskar on 25.09.2021. However. the possession notice was affixed on secured assets.

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So far objection of applicant regarding amount mentioned in Demand Notice contrary to amount mentioning in the OA 49/2022 for recovery is concerned. the respondent bank clearly stated that the amount mentioned in the Demand Notice is due as on 30.06.2021 while the OA has been filed for the recovery of amount as on date of filing of OAwhich cannot be disbelieve.

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So far the objection regarding the area of land mentioned in the possession notice is concerned. the applicant did not file any documents to substance his objection. Moreover. alleged area is mortgaged by one Gopal Prasad who has not been impleaded in this matter.

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16.Apart from the above. the applicant also failed to make the
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•

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SA 392 of 2022 UJ

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DRT, PATNA

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guarantor Gopal Prasad and Sanjeev Kumar as party in this application. At the same time it is not out of place to mention that all stakeholders of the loan in question such as the Mortgagor, borrower and the guarantor have not been made party. The effect of non- joinder of the Mortgagor and guarantor gives rise to the multiplicity of judicial proceedings. The Non Joinder of necessary parties is fatal for the case challenging SARFAESIAction against the assets owned by the mortgagor. At the same time the possibility of willingness of other stakeholders to pay the dues as demanded by the respondent cannot be ruled out. If they are willing the purpose of the present SARFAESIApplication will get infructuous. Application is not maintainable without impleading the mortgagor and guarantor. 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 liable to be dismissed.

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ORDER

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The application SA 392 of 2022,is dismissed. No order for costs. ~ / _f r~(>_ ~,A I~ '0'" [Kaushalendra YadavJ Presiding Officer Debts Recovery Tribunal, Patna

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Judgment signed, sealed, dated and pronounced in the open court ~ on this 06TH Day of January, 2025.

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~ 0, \0\0\"""'" ..f-.. v [Kaushalendra YadavJ

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Presiding Officer

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Debts Recovery Tribunal, Patna

Ms Prtibha Food Industries and Others v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

Ms Prtibha Food Industries and Others v. Punjab National Bank

Case brief

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What did the court decide?

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