SUKUMAR BANAERJEE Vs. STATE OF BANK OF INDIA

JUDGEMENT

(1.) Debts Recovery Appellate Tribunal's judgment and order dtd. 28/6/2019 passed in Appeal No. 177 of 2018, has been assailed in the present application. By the order impugned learned Appellate Tribunal has set aside the order dtd. 29/9/2016 passed by learned Debts Recovery Tribunal, Kolkata dtd. 26/2/2018, thereby remanding the matter to the Tribunal below to decide the SARFAESI application (SA) afresh.

(2.) Petitioners case in brief is that in 2005 he availed cash credit facility of Rs.40,00,000.00 from respondent no.1/bank. On 9/12/2014 as per the statement of account debit balance in loan account was Rs.35,10,287.33 which was under the total credit limit. Bank issued demand notice dtd. 2/2/2015 under Sec. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and claimed outstanding amount of Rs.35,63,076.86 as on 14/1/2015 plus further interest and cost charges. Petitioner made a representation on 29/7/2015 to the bank praying time for repayment, but the bank did not give reply to the same, though the bank under the law is bound to give reply to the representation within 15 days under Sec. 13(3A) of the Act. On 8/1/2016 opposite party (bank) had taken physical possession of the secured asset without delivering the possession notice to the borrower as per rule 8(1) of the Security Interest (Enforcement) Rules, 2002 and only affixed the possession notice. Petitioner submits that after receiving notice under Sec. 13(2), he deposited Rs.26,07,740.00 in between 18/12/2014 to 28/1/2016 and as such as on 28/1/2016, the loan account balance was only Rs.9,74,172.33.

(3.) On 22/2/2016 the petitioner being the borrower challenging the aforesaid SARFAESI actions, preferred an application under Sec. 17 of the Act of 2002 being SA No. 94 of 2016 before the Debts Recovery Tribunal- II (DRT-11), Kolkata. It is alleged that during pendency of the said application, the respondent/bank was trying to sell the secured asset. The petitioner was served a sale notice on 21/8/2016 which was sent on 18/8/2016 by the opposite party/bank. In fact Bank sent the sale notice on 18/8/2016 by registered Post with A.D. and it was delivered to the petitioner on 21/8/2016 but the sale was conducted on 15/9/2016 and on 21/9/2016 respondent/bank issued sale certificate in favour of auction purchaser. Petitioners specific case is that there is no clear 30 days notice given to the borrower by the secured creditor. The impugned sale came into knowledge of the petitioner after eight months from the date of sale, as and when the bank disclosed such fact before the Tribunal on 2/6/2017. In such view of the matter, the bank has clearly violated Rule 8 (6) of the Security Interest(Enforcement) Rules 2002 for not giving clear 30 days notice from the date of sale to the borrower and/or guarantor. Accordingly the sale notice is illegal. The petitioner herein preferred an interim application being I.A. No. 518 of 2016 to stay the operation of the aforesaid sale notice dtd. 11/8/2016.