Dismissed

B Gopalan and Two Others v. India Resurgence Arc Private Limited

DRT2 May 2025SA/662/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal upheld the validity of SARFAESI proceedings initiated by an Asset Reconstruction Company. The Tribunal found that all statutory notices under Sections 13(2) and 13(4) were duly served and published, possession was lawfully taken, and the auction was conducted in compliance with the Act and Rules.

What did the court decide?

The Securitization Application was dismissed, upholding the measures taken by the respondent from the issuance of Demand notice to the sale certificate.

B Gopalan and Two Others versus India Resurgence… — Contract and Commercial Disputes | DRT (2025)

SA No.662/2023

02.05.2025

IN THE DEBTS RECOVERY TRIBUNAL-III, CHENNAI

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Dated this the 2^nd day of May, 2025

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Present: SMT. S.V. GOWRAMMA Presiding Officer

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SA No. 662 of 2023

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B. Gopalan

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S/o. Mr.N. Basuvaraj,

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D. Suseela,

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W/o Mr.B. Gopalan,

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G. Sabari Viswanath,

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S/o. Mr. B. Gopalan,

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1 to 3 Applicants are temporarily residing at

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No.43, Pudhu Nagar, 3^rd Street,

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Ayanavaram, Chennai -600 043. ….Applicants

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-Vs-

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M/s. India Resurgence ARC Pvt Ltd, Rep by its Authorized Officer, Mr. A. Joseph Rahul, No.304, Piramal Towers, Peninsula Corporate Park, Ganpath Rao Kadam Marg, Lower Parcel, Mumbai -400 013. ….Respondent

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Counsels on record / appeared:

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Counsel for Applicant : M/s. L. Thiyagaiya Counsel for respondent : M/s. M. Arunachalam

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ORDER ON SA 662 /2023

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The present Securitization Application [SA] is filed under sub section [1] of Section17 of the Securitization And Reconstruction of Financial Asset and Enforcement of Security Interest Act,2002 (for short the ‘Act’)

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challenging the action and the measure taken by the secured creditor under the Security Interest Enforcement Rules, 2002 [for short the Rules].

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The E-Auction Sale held on 27.09.2023, pursuant to sale notice dated 17.08.2023 is impugned in the present SA and the outstanding amount due as per sale notice is Rs.3,16,05,617/- as on 31.07.2023.

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3. Pleadings of the applicant:

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3.1 The applicants are running the institute of Arignar Anna Industrial Training Institute (ITI) approved by the State and Central Government in the year 1993 and had availed a loan for running institutions in more than two places.

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3.2 The applicants approached M/s. Religare Finvest Limited [herein referred as ‘earlier lender’] and availed a loan a sum of Rs.99,75,000/against the property for the development of the Institutes, and executed loan documents and cheques to the Lender branch office on 04.06.2014.

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3.3 The Applicants were repaying the EMIs regularly in time without fail up to the month of June 2015, as the applicant suffered loss in the business, they could not manage to run the institute. Due to flood situation in the end of the year 2015, the situation become worst and the applicants had no source of income to repay the EMI which applicants explained to the Earlier Lender about the delay in the repayment. In fact the applicant has made a payment of Rs.4,50,000/- to the respondent bank during the month of April 2016.

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3.4 It is contended that the Earlier Lender harassed the applicant by filing various cases at various places, even one case before Bangalore under Section 138 of Negotiable Instrument Act, and another case before Arbitration at Delhi and have obtained an ex-parte award from Arbitration Delhi, though the applicant is living in Chennai, cases are filed in Delhi and Bangalore. The case of Arbitration at Delhi was to harass the applicant, even after applicants made lump payments to Earlier Lender, but they have issued the Section 13(4) Possession Notice dated 28.11.2016 without serving Demand notice under Section 13(2) of the Act

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3.5 The Earlier Lender have issued earlier Section 13(4) Possession notice which is not pasted on the property without following rules and regulations they have proceeded further. The Earlier Lender entered the institution and harassed the applicant in front of the students and the students who were from the poor economical society. Earlier Lender had assigned the loan account of the applicant to the present respondent without any intimation. Further the respondent bank have taken the physical possession of the property based on the order of the Hon’ble CJM, and the applicant was shocked and surprise to receive the Section 14 order passed by Hon’ble CJM and obtained the same from the District court.

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3.6 It is seen that the respondent bank have withdrawn the Section 13(4) Possession notice dated 28.11.2016 without serving the Section 13(2) Demand notice dated 29.01.2016 and without mentioning the outstanding amount due at time of filing the Section 14 application have obtained an order to take the physical possession of the property which is in violation

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of Rule 8 of the Enforcement of Security Interest Rule. Hence the applicant filed S.A No.422 of 2023 as the possession was taken by the Advocate Commissioner on 08.08.2023 without giving any opportunity to the tenants and their family members.

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3.7 The applicant was shocked to know through phone on 14.10.2023 that the property was sold and the respondent didn’t disclose the details of the sale notice and sale proceedings and asked to take the things from the property. Applicant vide letter dated 16.10.2023 requested the respondent to furnish the copy of sale notice and sale details and the same was acknowledged by the respondent on 17.10.2023. The respondent issued notice to 1^st applicant without furnishing the sale notice and sale proceedings and informed the applicant to receive the notice from the post.

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3.8 It is contended that the respondent have taken the possession and have sent the sale notice dated 17.08.2023 to the applicant’s old address and they have sent the same in whatsapp. In the grounds it is contended Section 13(2) Demand notice dated 21.09.2016 was not served without complying the Rule 8, and have issued Section 13(4) Possession notice dated 28.11.2016 and the sale notice was not served on the applicants,

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3.9 The respondent suppressing the earlier Possession notice issued by

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the Earlier Lender dated 28.11.2016 fixed sale on 27.09.2023. Further they have withdrawn the Possession notice dated 28.11.2016 and had not given paper publication for fixing the sale. Hence the issuance of the additional Possession notice dated 14.09.2017 is illegal and in violation of the act, the

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Possession notice is not affixed on the out door of the property and same is not published in the Two Newspapers as per the Rule 8 of the Security Interest Enforcement Rules.

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3.10 The amount demanded in the Section 13(2) Demand notice is not correct, and also in the Section 13(4) Possession notice and also in the E- Auction sale notice which is published in the Newspapers on 19.08.2023, hence the measures taken by the bank in issuing the Section 13(4) Possession notice and the sale notice is in violation under the Guidelines of the RBI and without giving sufficient opportunity they given paper publication on 19.08.2023 and fixing the sale on 27.09.2023 which is in violation in sub rule 5 of rule 8

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3.11 The respondent bank has not served the E-Auction notice to the applicants for the property which the possession is already taken and they have not intimated through whatsapp or through phone. The respondent failed to give the proper description of the Schedule property in the paper publication dated 19.08.2023 for fixing the sale on 27.09.2023 have proceeded. The intention of the respondent is to sell property at throw away price without any justifications and hence applicants prays to set aside the E-Auction sale held on 27.09.2023, and the in present to the sake notice dated 17.08.2023.

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4. Objections of the respondent bank:

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4.1 The respondent ARC has filed a detailed counter countering all the allegations made by applicant along with supporting documents. The

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applicant had availed a loan against the property/SME loan facility from Religare Finvest Limited [Earlier lender] vide loan account bearing No.XMORSAI00053542 for a sum of Rs.99,75,000/- dated 04.06.2014 and executed Memorandum of Deposit of Title Deeds favoring Earlier lender dated 27.06.2014 registered as Doc.No.6800/14 registered on the Sub Registrar, Chennai South joint.

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4.2 The applicants defaulted in the repayment, the loan account was classified as NPA on 30.11.2015 and the Earlier lender initiated SARFAESI proceedings by issuing Section 13(2) Demand notice dated 21.09.2016 and as the applicant failed to make the payment within the time prescribed, Earlier lender have issued Section 13(4) Possession notice dated 28.11.2016. The loan account of the applicant was assigned in favor of the respondent bank M/s. India Resurgence ARC Private Limited, the present ARC vide Assignment deed dated 05.11.2019, hence respondent stepped into shoes of the M/s. Religare Finvest Limited and proceeded further.

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4.3 The respondent denies that the applicant had given cheque as security and as the respondent only the assignee of the loan account, the loan account has been received from the assignor M/s. Religare Finvest Limited and they have continued legal proceedings initiated by them. The arbitration proceedings and SARFAESI can go together and award passed in arbitration proceedings does not come in the way of SARFAESI proceedings. Hence, it is denied that the Earlier Lender has no power to act under SARFAESI act. In fact such an allegation is against the Earlier Lender who is not a party to the present application. At the time of assigning the

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assignment dated 05.11.2019 had provided the respondent only the details of the Possession notice dated 28.11.2016 under Section 13(4) of the Act

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4.4 The respondent do not have any knowledge about the possession notice dated 28.11.2016 and applicant is called upon to provide proof of the same. The contentions that the Section 13(2) Demand notice was not served is denied as Demand notice dated 21.09.2016 sent by RPAD is produced with online tracker as proof of receipt of the notice. The Possession notice is pasted on the property on 28.11.2016 and published in two Newspapers one in “Trinity Mirror” (English) and another in “Makkal Kural” both dated on 04.12.2016. The outstanding amount as mentioned in the Section 13(4) Possession notice is correct and valid.

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4.5 In fact applicant has filed an S.A. No.422 of 2023 challenging the Section 14 order and the same is pending, the contention that there are tenants is called upon to file a proof of the same. The respondent has filed an application under Section 14 before the Hon’ble Chief Magistrate at Tiruvallur in Crl M.P. No.4309 of 2022 and Advocate Commissioner is appointed to take the possession of the secured asset and handover the same.

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4.6 Subsequently E-Auction sale notice dated 17.08.2023 was issued by fixing the sale on 27.09.2023 and the property was sold to highest bidder Mr. Ramkumar for sale consideration of Rs.1,30,95,000/- and on receipt of entire sale consideration of the sale, the Sale Certificate is also issued favoring the Auction purchaser.

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4.7 The respondent informed about the sale through phone on 14.10.2023 is denied after the physical possession was handed over, the applicant had not provided their address for communication, even in their letter dated 16.10.2023. The applicant provided his address as that of the secured asset and did not provided any new address and provided only phone number in his letter. Hence, the respondent sent the reply notice dated 19.10.2023 to the last known address of the applicants and the same was sent through whatsapp number of 1^st applicant.

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4.8 Further the borrower has not given instructions to the jurisdictional post office to redirect the letters to the new address, and applicants kept their new address secret and did not provide the same to respondent. The respondent denies allegation that the scheduled property was sold at lower cost. It is contended that the sale notice is not sent to the whatsapp of 1^st applicant but the reply notice dated 19.10.2023 was sent to the whatsapp number of 1^st applicant, as the applicant gave the number vide letter dated 16.10.2023

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4.9 In the grounds, it is contended that the sale notice is sent to the last known address of the applicant which was returned and as the applicant failed to provide the new address, it was sent to old address and it was published in Newspapers. Thus, the contention that Section 13(2) Demand notice is not served is countered by the respondent bank have produced the proof of service. The Section 13(4) Possession notice dated 28.11.2016 is issued and the respondent is not aware whether it is withdrawn by earlier lender and fresh possession notice dated 14.09.2017 was issued.

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4.10 The respondent ARC continued with the SARFAESI measures, issued Section 13(2) Demand Notice dated 21.09.2016 calling upon the borrowers to pay a sum of Rs.1,08,68,608.74/- is valid and correct which is in accordance with Rules and the outstanding amount of Rs.1,11,92,029.98/is shown in Possession notice dated 28.11.2016 is also valid and it is as per the regulations and guidelines of the RBI.

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4.11 The respondent denies that the charging of unnecessary interest and the outstanding amount as mentioned in the E-Auction sale notice is valid and correct. The entire measures initiated by Religare Finvest Limited and continued by this respondent are legal and valid and followed procedures as per the RBI guidelines and date of NPA need not be mentioned in the possession notice and sale notice.

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4.12 The classification of account as NPA on 30.11.2015 is mentioned in the Demand notice dated 21.09.2016 which admittedly received by the applicant here in. The respondent bank denies that the impugned sale notice violated the provisions in sub Rule 5 of rule 8 and the respondent have issued sale notice after getting valuation report on the secured asset and as followed all the rules.

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4.13 The property is sold in auction to the highest bidder Mr. RamKumar

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for sale consideration of Rs.1,30,95,000/- and after receipt of the entire consideration the possession of the secured asset was handed over to the auction purchaser. The respondents have followed all the procedures and

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have given them an opportunity to clear the dues, and the property is sold to highest bidder and prays for dismissal of the SA

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Heard both sides of the Counsels and perused the records of the case.

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5.1 It is evident from the records that the Applicants were running a Arignar Anna Industrial Training Institute (ITI), for the development of an institution they availed a loan from M/s. Religare Finvest Limited for an amount of Rs.99,75,000/- which is a loan against the property and the second applicant Ms. D. Suseela as mortgagor, mortgaged her property “All that piece and parcel of the vacant land and building admeasuring an extent of 2400 sq.ft., comprised in survey no.97 (Measuring 1200 sq.ft., from and out of Acre 0.26 cents) and another Survey No.98/1 (Meauring 1200 sq.ft., from and out of Acre 0.32 cents) situated at Karambakkam Village, Ambatur Taluk of Thiruvallur District and lying within the Registration District of South Chennai and Sub Registration District of Joint Sub Registrar -1, Saidapet, Chennai South” as collateral security towards the credit facility and has also executed Memorandum of Deposit of Title Deeds which is duly registered in the registers office

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5.2 There is no dispute about availing of the credit facility, mortgage of the property and default in the repayment, in fact the default in repayments is admitted by applicant in para 2 of their application. As the applicants didn’t honor the terms and conditions of the sanction and repayment schedule , bank has classified the account as NPA on 30.11.2015 and initiated measures by issuing Section 13(2) Demand notice dated

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21.09.2016, and the copy of the Section 13(2) Demand notice is produced at page No.45, it seen that the Demand notice is sent by Speed Post / REGD A.D / Courier

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5.3 It is seen from the documents produced by the bank that the Section 13(2) Demand notice dated 21.09.2016 is sent through RPAD is delivered to the applicants, which is duly served on the borrower and guarantors. On perusal of the Demand notice, it is clearly described the details of the borrower and guarantors, credit facilities availed vide loan account No.XMORSAI00053542, and also mortgage of the property which is mentioned in para 2 of the Demand notice, at para 4 of the Demand notice it is clearly mentioned that the Outstanding amount of Rs.10868608.74/due as on 21.09.2016 and in the para 3 of the notice, the date of classification of account as NPA on 30.11.2015 is also mentioned.

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5.4 Further it is also intimated to the knowledge of the applicant that if they failed to make the payment, the respondent would initiate measures under Section 13(4) by taking physical possession of the property. Thus, it is evident that the Section 13(2) Demand notice is served by rendering all the detailed as required under Section 13(2) of the Act. As the applicant didn’t liquidate the liabilities within a period of 60 days, nor raised any objections to the demand made, the earlier lender proceeded further and issued Section 13(4) Possession notice dated 28.11.2016 which is sent by RPAD and have produced Postal receipts and Acknowledgement cards which reflects that the applicant have received the Section 13(4) Possession notice

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5.5 The respondent have affixed the Possession notice on the conspicuous part of the property which is evident from the documents produced by the respondent at page No.60,61 of the typed set of documents. Further the Section 13(4) Possession notice dated 28.11.2016 is also published in two Newspapers, one in “Trinity Mirror” (English) and another in “Makkal Kural” (Tamil) both dated on 04.12.2016. Therefore, it is evident that the respondent bank have issued Section 13(2) Demand notice and Section 13(4) Possession notice under the Rules and the same is supported by the documentary evidence.

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5.6 It is apparent that the earlier lender has assigned the debt vide assignment dated 20.11.2019 which is produced by respondent at page No.64. As the respondent ARC stepped into the shoe of the earlier lender continued the measures and filed application under Section 14 to take the physical possession of the property. The Learned CJM, Tiruvallur, vide order dated 21.07.2023, allowed the Section 14 application and appointed an Advocate Commissioner to take the physical possession of the property.

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5.7 It is an admitted fact that the physical possession of the property is taken and there is no dispute in respect of sale, the applicant has challenged the sale notice dated 17.08.2023 where the property was scheduled to be sold on 27.09.2023. The property is sold to the highest bidder Mr. Ramkumar for sale consideration of Rs.1,30,95,000/-.

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5.8 As per the postal tract reports produced by the respondent it is

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evident that the sale notice is served, affixed to the property which is

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produced at page No.84 and 85 of the typed set of documents. Further the sale notice is also published in two Newspapers one in “The New Indian Express” (English) and another in “Dinamani” (Tamil) both dated on 19.08.2023 as per the procedures.

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5.9 The contention of the applicant that the property is undervalued is countered by the respondent bank on production of valuation report from the approved valuer before putting the property to sale. In fact, the property is sold for more than the reserved price fixed by the valuer. In fact the applicant is aware of the measures taken by the respondent bank by issuing Section 13(2) Demand notice and Section 13(4) Possession notice and also taking of the physical possession of the secured asset. Therefore there is no validation that the respondent have taken measures without any justifications.

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5.10 The first contention of the applicant with regard to Section 13(2) Demand notice is not served, is duly countered by the bank by producing the Postal track report, online track of Section 13(2) Demand notice which clearly reflects that the Section 13(2) Demand notice was served on applicants, further on receipt of the Demand notice they didn’t raise their objections to the demand made. The secured creditor proceeded further and issued Section 13(4) Possession notice on 28.11.2016 and the same is published in two Newspapers one in “Trinity Mirror” (English) and another in “Makkal Kural” (Tamil) both dated on 04.12.2016 which reflects that the applicants here in have received the statutory notices.

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5.11 In fact applicant didn’t raise any objection in issuing of Demand notice and Possession notice by the Earlier Lender and M/s. Religare Finvest Limited. In view of the Deed of Assignment dated 20.11.2019 filed by M/s. Religare Finvest Limited to the India Resurgence ARC Private Ltd. and have continued with the measures and have filed a Section 14 application before Hon’ble CJM Tiruvallur, and after the verification of the documents, Ld. CJM had allowed the application and appointed an Advocate Commissioner to take the physical possession of the property.

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5.12 The further contention that sale notice is not served on their address as respondent bank being aware that they have taken the possession. The respondent has relied on applicant’s letter dated 17.10.2023 where the applicant had mentioned their phone number and as the respondent bank didn’t have knowledge of the new address for communication and the letter dated 17.10.2023 also carried their old address which is produced at page No.90, hence the respondent sent the sale notice through whatsapp.

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5.13 It is also not the case of the applicant that after taking physical possession of the property was taken, they have intimated the change of address to the postal authorities to redirect any postal communication address to them at their old address

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5.14 In furtherance to the measure the sale notice is published and also affixed on the property and it is seen from the affixure of the sale notice the security guard of the institutions in the photograph would definitely communicate the affixture of the notice to the owners. Infact the

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sale notice is sent by RPAD which is duly served and published in two newspapers one in “The New Indian Express” (English) and another in “ Dinamani” (Tamil) both dated on 19.08.2023 and also affixed the same on property under Security Enforcement Law

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5.15 The contention that the property is sold at a lower price is not supported by any valuation report by the applicant. It is seen from the valuation report produced by the respondent at page No.91 which clearly reflects that the final value of the property is Rs.1,32,00,000/- and it is duly valued by approved valuer. It is seen that the property is put for auction for a reserve price at Rs.1,12,20,000.00 and the property is sold higher than the reserve price. Thus, the contention that property is undervalued fails as the property is sold for Rs. 1,30,95,000/- higher than the reserve price.

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5.16 It is seen from the applicant’s SA that the E-Auction sale notice dated 17.08.2023 fixing the sale on 27.09.2023 is admitted and the issuance of Section 13(2) Demand notice dated 21.09.2016, Section 13(4) Possession notice dated 28.11.2016, Section 14 order passed by Hon’ble CJM, Tiruvallur, dated 21.07.2023. In spite of receipt of Section 13(2) Demand notice the applicants didn’t raise their objections to the demand made nor challenged the possession notice dated 28.11.2016 within a time period of 45 days which is mandatory under Section 17 of the Act nor has challenged the Section 14 order dated 21.07.2023 even after taking the physical possession of the property.

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5.17 After perusal of the documents produced by both the parties, it is evident that the applicants have mortgaged the property for the loan against the property and defaulted in the repayment to the credit facilities which is against the terms and conditions of the sanction, and respondent have classified the loan account as NPA and have proceeded under the SARFAESI Act by following all the procedures as required and issued Section 13(2) Demand notice and Section 13(4) Possession notice

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5.18 In fact applicants have not challenged the Section 13(4) Possession notice and the Section 14 order within 45 days and the respondent have initiated measures under the Act. Hence, the Tribunal indisputably concludes that the Section 13(2) Demand notice dated 21.09.2016 and the Possession notice dated 28.11.2016 are held as valid notices and the Section 14 order passed by Hon’ble CJM, Tiruvallur, dated 21.07.2022 does not require any interference from this Tribunal.

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5.19 In respect of the E-auction sale held on 27.09.2023, the applicants have not made out a case of any irregularity in the measures taken or in auctioning the property as scheduled. The respondent have established the due compliance of the measures under the Act d which is under challeng as taken as rest, the sale notice 17.08.2023 produced by the bank is under

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the Acts and Rules, after due verification of the documents, Tribunal concludes that the Sale notice dated 17.08.2023 sale held on 27.09.2023 favoring the successful bidder Mr. Ramkumar are held as valid notices and measure which is duly complied as per the procedures mandated under the Acts and Rules made there under.

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5.20 Accordingly SA stands dismissed up holding measures taken by respondent bank from issuance of Section 13 (2) Demand notice to issuance of sale notice and sale certificate.

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Interim Order granted, if any stands vacated, pending IAs are

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disposed of in terms of this final order. No order as to cost.

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Sd/- (S.V. GOWRAMMA) PRESIDING OFFICER, DRT-III, CHENNAI

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(Dictated to Steno (Mogesh), transcribed by him, corrected, signed and pronounced by me on this the 2^nd day of May, 2025)

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ANNEXURES

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LIST OF DOCUMENTS PRODUCED BY THE APPLICANT

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Sl. No.	Description of Documents	Page No.
1.	Application dated 11.11.2023.	A-1
2.	Impugned order under section 14 of the securitization Act 21.07.2023.	A-2
3.	Paper Publication of the E-Auction Sale Notice 19.08.2023.	A-3
4.	Legal Notice issued by the Respondent dated 19.10.2023.	A-4
5.	Reply Notice issued by the 1^stApplicant dated 08.11.2023.	A-5
6.	Vakalat dated 11.11.2023.	A-6

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LIST OF DOCUMENTS PRODUCED BY THE RESPONDNET

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Sl. No.	Description of Documents	Page No.
1.	Counter Affidavit filed by the Respondent dated 05.04.2024.	R-1
2.	Copy of Board Resolution dated 06.11.2023.	R-2
3.	Copy of Sanction Letter dated 04.06.2014.	R-3
4.	Copy of Loan agreement dated 04.06.2014	R-4
5.	Copy of MODT dated 27.06.2014.	R-5
6.	Copy of Demand Notice with postal receipts and online track consignment of India Post dated 21.09.2016.	R-6
7.	Copy of Possession Notice with Postal Receipts and online track consignment of India Post with pasting photos dated 28.11.2016.	R-7
8.	Possession Notice Paper Publication in English and Tamil Newspaper dated 04.12.2016.	R-8
9.	Copy of communication as to the assignment of the loan account dated 20.11.2019.	R-9
10.	Copy of Order in Crl M P No.4309 of 2022	R-10
11.	Copy of Auction Sale Notice with postal receipts, online tracker with Pasting dated 17.08.2023.	R-11
12.	Copy of English and Tamil Newspaper as to Auction Sale Notice Paper Publication dated 19.08.2023.	R-12
13.	Copy of Letter from the 1^stapplicant dated 17.10.2023.	R-13
14.	Copy of Valuation Report dated 14.08.2023.	R-14

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SCHEDULE OF PROPERTY

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All that piece and parcel of the vacant land and building admeasuring an extent of 2400 sq.ft., comprised in survey no.97 (Measuring 1200 sq.ft., from and out of Acre 0.26 cents) and another Survey No.98/1 (Meauring 1200 sq.ft., from and out of Acre 0.32 cents) situated at Karambakkam Village, Ambatur Taluk of Thiruvallur District and lying within the Registration District of South Chennai and Sub Registration District of Joint Sub Registrar -1, Saidapet, Chennai South.

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Bounded on the

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North by : Land belongs to Jothi; South by : Land belongs to Baby;

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East by : 24ft wide common passage;

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