BABY SAHA Vs. BANK OF INDIA

JUDGEMENT

(1.) The impugned order dated 7th June, 2018 passed by the Chairperson, Debts Recovery Appellate Tribunal at Kolkata in Appeal No. 133 of 2017, dismissing the appeal and thereby affirming the order dated 16.06.2017 passed by the Presiding Officer DRT-3 rejecting the review application is the subject of challenge in this revisional application under Article 227 of the Constitution of India.

(2.) In order to perfectly address the issue, some salient facts may be mentioned here.

(3.) M/S. Pailan Educationa Trust admittedly was granted cash credit facilities for a sum of Rs.6.70 crores. Both petitioner and her husband were appointed as trustees to such trust. While obtaining such cash credit facilities as per agreement, the trust itself created equitable mortgage in respect of the properties of trust. Being a guarantor of such cash credit facility, the petitioner also executed equitable mortgage in respect of her own residential flat situated at 25, Benia Pukur Road, Kolkata. The borrower having committed default in the payment of loan amount, the opposite party bank being a secured creditor proceeded to serve a notice under Section 13(2) of SARFAESI Act, dated 31.10.2013, upon the petitioner guarantor to recover the amount remaining unpaid. The borrower of the loan having failed to discharge his liability as per terms of the notice under Section 13(2) of the SARFAESI Act, the opposite party bank took step to take possession of the secured asset of the petitioner complying with the provisions, as incorporated in Section 13(4) of the SARFAESI Act. The petitioner/guarantor challenged the legality and validity of such notice under Section 13(2) of the SARFAESI Act, disputing with the irregularities contained in the said notice and further alleging to have made some patent contravention with respect to the Rule 8(1) and 8(2) of the Security Interest (Enforcement) Rules 2002 by taking out an application under Section 17 of the SARFAESI Act, which was registered as S.A No. 564 of 2016, filed in the last week of December, 2016. On 04.01.2017 the Presiding Officer of DRT-3, Kolkata passed an interim order in connection therewith, when the petitioner challenged the notice issued under Section 13(2) together with notice issued under Section 8(6) directing the opposite party/ bank to go ahead with the sale as proposed, but the bank should not confirm the sale. On 28th March, 2017 petitioner sought for an adjournment, in order to take the services of an advocate of Delhi, who had been engaged in the matter. The Presiding Officer of DRT-3, Kolkata granted such adjournment on the prayer of the petitioner fixing the matter as specifically fixed on 30th March, 2017 for taking services of an advocate of Delhi. The Presiding Judge of DRT-3, Kolkata refused to grant similar prayer for adjournment on 30.03.2017 declining the matter to be accommodated any more on the ground that the secured assets of petitioner had already been put on sale on 06.01.2017 to O.P. No.3 being the highest bidder of Rs. 40.20 Lakhs. After the prayer for adjournment was rejected on 30th March, 2017, the presentee learned advocate for petitioner proceeded to give equitable offer to redeem the property agreeing to pay the entire bid amount along with expenses and interest with a prayer for releasing the property sold in auction.