ANALKUMAR RAJKISHORE MISHRA Vs. DENA BANK

JUDGEMENT

(1.) The petitioners - Directors of M/s. Rajdeep Chemicals & Fertilizers Limited (hereinafter referred to as 'the Company') are the guarantors and the Company is the borrower. The Company obtained Cash Credit Hypothecation facilities to the tune of Rs.15.00 lakhs from the 1st respondent - Dena Bank (hereinafter referred to as 'the Bank'), which was enhanced to Rs.40 lakhs for development of business. Due non-payment of the dues, the account of the Company was declared Non Performing Asset (N.P.A.). The Bank for taking measures under Sub-sec.(4) of Sec.13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short) issued notice dated 9th February 2010 on the guarantors to handover possession of the secured assets to the authorized officer of the Bank, including the movable and immovable properties mentioned therein. It was directed to handover the possession on 18th February 2010 at 11.00 a.m. The petitioners - guarantors when moved an appeal u/Sec.17 of the SARFAESI Act before the Debt Recovery Tribunal - II, the said Tribunal by the impugned order dated 7th September 2010 refused to entertain the appeal u/Sec.17 on the ground that it is not maintainable being premature. This order is under challenge in the present case.

(2.) While learned counsel appearing on behalf of the petitioners would contend that the impugned notice dated 9th February 2010 amounts to measures taken under Sub-sec.(4) of Sec.13 of the SARFAESI Act, and thereby, appeal u/Sec.17 is maintainable, according to learned counsel for the Bank, possession of the movable or immoveable assets having not yet taken, it cannot be held that any measures u/Sub-sec. (4) of Sec.13 have been taken, and, thereby, appeal u/Sec.17 being premature, was not maintainable.

(3.) Learned counsel appearing on behalf of the Bank referred to the notice dated 9th February 2010. At paragraph no. 3 therein, the authorized officer of Dena Bank while asking the petitioners to handover possession of the secured assets to him, observed as follows:-