Dismissed

Mohan Shashikant Bhosale Prop of Shrimant Foods and Mrs Archana Bhosale v. Indian Bank

DRT2 Jul 2025SA/445/2024

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicants' Securitisation Application challenging a bank's possession and sale of mortgaged property. The court held the application was barred by limitation under Section 17 of the SARFAESI Act, as it was filed beyond 45 days from the date the measures were taken.

What did the court decide?

Application dismissed as barred by limitation; interlocutory applications disposed of.

Mohan Shashikant Bhosale Prop of Shrimant Foods and Mrs… — Banking and Recovery | DRT (2025)

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Presented on: 21.10.2024 Registered on: 26.12.2024 Decided on: 02.07.2025 Duration: Y M D

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IN THE DEBTS RECOVERY TRIBUNAL AT PUNE (Before Shri Dilip G Murumkar, Presiding Officer) SECURITISATION APPLICATION No.445/2024

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Mr. Mohan Shashikant Bhosale Proprietor of M/s. Shrimant Foods Age: 45 years, Occupation: Business

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Mrs. Archana Mohan Bhosale Age: 45 years, Occ: Homemaker Versus

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Indian Bank

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… Applicants

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Having Office at: Nana Peth Branch 612-B, Parsi Agayari Compound, Nana Peth, Pune 411 006.

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The Authorised Officer Indian Bank Having Office at: Nana Peth Branch 612-B, Parsi Agayari Compound, Nana Peth, Pune 411 006.

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Mrs. Sapna Nitin Rathi Age: 42 years,

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Mr. Vishal Nitin Rathi Age: 21 years Both residing at: 339/B, Shop No.101 First Floor, Uttam Apartment, near Mahadev Mandir, Rasta Peth, Pune –

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411 011.

Mrs. Rajani Shashikant Bhosale Age: Adult Residing at: 323, Rasta Peth, Near Naidu Ganpati, Pune – 411 011. ... Defendants

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APPEARANCES

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For the Applicants Mr. Kalpak Mainkar - Advocate For defendant Nos.1 and 2 Mrs. Rohini Pawar – Advocate For defendant Nos.3 and 4 Mr. Abhijit Raut - Advocate

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JUDGMENT

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(Delivered on 2^nd July, 2025)

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By the present Securitisation Application, the applicants have challenged the action taken by defendant Bank under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act” for short) in respect of the mortgaged property and have claimed following main reliefs:

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(a) The Hon’ble Tribunal may be pleased to quash and set aside the alleged notice dated July 17, 2023 issued by the Defendants u/s 13(2) of the SARFAESI Act dated November 21, 2023, being illegal and void.

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(b) The Hon’ble Tribunal may be pleased to quash and set aside the alleged notices issued by the Defendants u/s 13(4) of the SARFAESI Act dated November 21, 2023

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being illegal and void.

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(c) The Hon’ble Tribunal may be pleased to quash and set aside the alleged paper publications done, being illegal and void.

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(d) The Hon’ble Tribunal may be pleased to quash and set aside the order passed by the District Magistrate, Pune dated March 26, 2024 being illegal and void.

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(e) Hon’ble Tribunal may be pleased to declare that no valid mortgage is created against the properties mentioned in the schedules hereinbelow.

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(f) The Hon’ble Tribunal may kindly restore the physical possession of the property mentioned in Schedule hereinbelow if the Hon’ble Court is of the opinion that the bank or said alleged auction purchaser is having the possession.

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(g) Hon’ble Tribunal may be pleased to grant an order of permanent injunction against the defendants restraining them from creating any third-party interest in the alleged mortgaged property.

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(h) The Hon’ble Tribunal may kindly declare that the auction conducted by the Defendant Bank is illegal and invalid and the same may be quashed and set aside.

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(i) The Hon’ble Tribunal may be pleased to declare sale

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certificate registered in the office of Sub-Registrar Haveli 11, bearing Serial No.14518/2024 dated September, 05, 2024 as illegal and void.

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(j) Hon’ble Tribunal may be pleased to declare the entire actions of the Defendant Nos.1 and 2 taken under the SARFAESI Act are illegal.

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(k) This Hon’ble Tribunal may kindly award to the Applicants the costs for filing of the present SA along with Advocate fees from the Defendant.

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(l) The court fees paid by the Applicants at the time of filing of the SA kindly be returned to the Applicants as per rules at the time of disposal of the said SA.

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(m) This Hon’ble Tribunal may kindly award to the Applicants the damages from the Defendants for the illegalities, which have caused mental trauma, duress, pain, mental agony etc.., to the Applicants done by the Defendants.

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The defendant bank orally raised objection as to the maintainability of this Application on the point of limitation. Therefore, I decide this Application on the point of limitation and maintainability.

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Heard arguments of both the parties on the point of limitation.

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The learned Advocate appearing for the applicants submitted

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that as per observations made by Hon’ble Supreme Court in the case of Arce Polymers Private Limited Vs. Alphine Pharmaceuticals Private Limited and Others [(2022) 2 Supreme Court Cases 221] there is continuing cause of action to challenge measures taken by bank or financial institutions under the provisions of SARFAESI Act. In the present case, the applicants came to know that suit property has been sold in auction by letter dated 5^th October, 2024 issued by the defendant bank for removing the goods kept in the suit property. The present Securitisation Application is filed on 21^st October, 2024. Thus, it is filed within forty-five days as per Section 17 of the SARFAESI Act and therefore, it is within limitation.

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Further, he submitted that other reliefs are in respect of measures taken under the SARFAESI Act by the defendant bank prior to sale of the suit property and there being continuous cause of action, the present application is not barred by limitation. Therefore, objection raised by the defendant bank regarding limitation may be rejected.

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In support of his contentions, he placed reliance upon the Judgment passed by the Hon’ble High Court of Telangana in the case of Alpine Pharmaceuticals P. Ltd., and another Vs. Andhra Bank 2020 SCC OnLine TS 81.

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The learned Advocate appearing for defendant bank submitted

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that pleadings of the application itself shows that applicants came to know in the month of August, 2024 that possession of the suit property has been taken by defendant bank but this Application challenging the possession of the suit property has been filed on 21^st October, 2024. He further submitted that sale of the suit property in auction has taken place on 20^th March, 2024 whereas the present application challenging the sale has been filed on 21^st October, 2024. Therefore, since Securitisation Application is barred by limitation, it is not maintainable. Therefore, application may be dismissed.

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In support of this contentions, he placed reliance upon the following Authorities:

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(1) Nikhila Divyan Mehta & Another Vs. Hitesh P. Sanghvi & Others [Civil Appeal No.__ of 2025 (Arising out of S.L.P. (C) No.13459 of 2024) decided on 15^th April, 2025].

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(2) Union Bank of India & Another Vs. Benoy A.S. & Others reported in 2022 ibclaw.in 41 DRAT.

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From the submissions of both the parties, following points arise for my determination:

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(1) Whether the present application is barred by limitation and therefore, not maintainable?

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(2) What Order?

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Findings:

Point No.1 – In the affirmative.

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Point No.2 – As per final order.

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REASONS

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Perused the record and documents produced by both the parties and provisions regarding limitation provided under the SARFAESI Act.

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Point Nos.1 & 2

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As per Section 17 of the SARFAESI Act, any person (including borrower), aggrieved by any of the measures referred to in subsection (4) of section 13 taken by the secured creditor or his officer may make an application to Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken .

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From the plain reading of this provision, it reveals that application challenging measures taken by the secured creditor has to be filed within prescribed period from the date on which such measures have been taken and not from the date on which the applicant get knowledge. In the light of this fact, I scan the case of the applicants.

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The applicants have claimed primary relief regarding quashing and setting aside the Order dated 26^th March, 2024 passed by the District Magistrate, Pune (regarding taking physical

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possession of the suit property). In this regard applicants candidly pleaded in paragraph No.5.24 of the Securitisation Application that in the month of August, 2024 the applicants directly came to know that some person alleging to be Authorised Officer of the defendant bank had taken possession of alleged mortgaged property i.e. the suit property without taking police protection. Further pleaded that possession of the alleged mortgaged property i.e. the suit property was illegally taken on 6^th August, 2024. However, for challenging this measure of taking physical possession of the suit property by the defendant bank, the applicants have filed this Application on 21^st October, 2024.

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Further, another primary relief claimed by the applicants is that this Tribunal may declare that the auction conducted by the defendant bank is illegal and invalid and the same may be quashed and set aside.

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According to applicants, they came to know that the suit property has been sold in auction when they received first Notice dated 5^th October, 2024 from the defendant bank asking them to remove movables inside the suit property, as Sale Notice was not served upon them. However, in the Limitation Clause (Paragraph No.4) of this Application the applicants have candidly pleaded that recently i.e. on or about September 20,

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2024 the applicants came to know from the bank that the defendant bank has auctioned alleged mortgaged property as well as registered the sale certificate without issuing any notice to the applicants.

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At this juncture, it is to be noted that while challenging sale of the mortgaged property, limitation has to be counted from the date of auction and not from the date of either registration of Sale Certificate or knowledge to the aggrieved person. Admittedly, in the present case, sale/auction of the suit property was conducted on 20^th March, 2024. However, present application challenging the sale has been filed on 21^st October, 2024.

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In view of above observations, I am of opinion that this Application challenging possession of suit property is not filed within forty-five days from 6^th August, 2024 when defendant bank took physical possession of the same. So also, the applicants have not filed application challenging the sale within forty-five days from the date of auction i.e. from 20^th March, 2024. This Securitisation Application is filed on 21^st October, 2024 which glaringly shows that it is filed beyond period of limitation. Therefore, measures taken earlier to possession and sale of suit property can be challenged along with primary claims/reliefs i.e. possession and sale. The primary relief

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claimed by the applicants is barred by limitation and therefore, this application is not maintainable and liable for dismissal.

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Hence, by answering these points accordingly , I pass the following order:

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ORDER