DEBTS RECOVERY TRIBUNAL - 3, KOLKATA

JeevanSudha Bldg. 8th Floot,42/C, J.L.Nehru Road, Kolkata - 700071

Before Shri A. K. CHATURVEDI. Presiding Officer
SA No. 458 of 2O18

Mr. Dilip Sarkar, residing at Durga Bhawan, F.No.

1C, 1st floor, 246, Naskar Para Road, Old No. 66,
Judge Bagan, near Netaji Sporting Club, Kolkata -
700082.

- Applicant

VS

Bank of India, registered office at Star House,

Bandra Kurla Comlex, Mumbai and regional office,
Kolkata Retail Business Centre, znd floor, DD-z,
Sector - I, Salt Lake, near City Centre, Kolkata -
700064.
Respondent.

Present:
For Applicant: Mr. A.K. Bose, Ld. Counsel.
:
For Respondents Ms. A. Das, Ld. Counsel

JUDGMENT

^41November, 2019,
Delivered on 0..1..

Applicant has filed aforesaid SA under Section 17 of the SARFAESI Act,

2002 (hereinafter referred to as 'Act of 2002') seeking relief to restrain the

respondent bank from taking over possession of the mortgaged property and

to declare the action of the respondent bank null and void and also to direct

them to come for an amicable settlement. Affidavit in opposition and written

argument filed by the respondent bank and rejoinder filed by the applicant

are taken into consideration. Despite opportunity, applicant did not file
written argument.

2. Factual matrix of the case is that applicant had approached respondent

bank for housing loan and on being satisfied with the bankability of the

proposal respondent bank sanctioned Rs.19.60 lakh and such loan was
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secured by collateral security of Flat at 246, Naskar Para Road, Kolkata -

700082 by depositing its title deed in favour of respondent bank. The

applicant defaulted in repayment of loan and as such loan account was

classified NPA on 31.05.2018. Respondent bank invoked SARFAESI

measures for recovery of their dues and issued demand notice dated
19.06,2018 claiming Rs,16,19,580/- repayable within 60 days. Applicant did

not adhere to the demand notice. Possession notice u/s 13(4) was issued on

11.09.2018 and symbolic possession was taken for the purpose of recovery

of dues. Being aggrieved thereby present S.A. was filed.

3. The main thrust of applicant's argument was that SARFAESI notiCes

were not issued in accordance with the Act and Rules of 2002. Applicant

contended that statement of accounts was not provided to him. Claim

amounts are excessively high. NPA was contrary to the guidetines of RAI.

Respondent bank did not consider offer of settlement. Rule B(1) and B(2)

was not followed while issuing possession notice. In support of his case the

applicant cited following case laws :

(i) HDFC Bank Ltd Vs. Balwinder Singh [III(2009)CPJ 40 (NC)

(II) V. Sasidharan Vs. Syndicate Bank [1997(1) CCC 97 (NS)]

(III) Sovintorg (I) Ltd. Vs. State Bank of India [C.P. No. 823 of 1992]

4. On the contrary, respondent bank submitted that admittedty the

applicant had availed housing loan after executing various loan documents

and mortgage document by depositing Title Deed in favour of Bank and

defaulted in repayment of EMI. The loan account was classified NPA strictly

as per guidelines of RBI and as such they were entitled to invoke SARFAESI

measures for recovery of dues. Demand notice was issued strictly following

the procedures of Section 13(2). Thereafter possession notice was issued

following the procedure of Rule 8(1) and B(2).

a..
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5. I have heard both the parties, perused materials on records and

considered the facts and law involved in the case.

6. The relief sought for in this S.A. confined to cancellation of the action

taken by the respondent bank by issuing notices under SARFAESI Act.

Applicant did not produce any representation requesting supply of statement

of accounts before issuance of demand notice, without which it cannot .be

substantially proved that applicant requested for it and respondent bank did

not pay heed to that. Applicant has also contended that respondent bank
point out
classified loan account NPA contrary to RBI guidelines, but failed to

anyirregularity.Applicant'ssweepingallegationthatitwasnotmade
according to RBI guidelines cannot hold well' I have perused the demand
noUce dated 19.06.2018 and find that details of outstanding dues as well as

detail description of mortgaged property have been described in the

that clalm
aforesaid notice. Applicant also failed to substantiate on evidence

amountWaSnotinaccordancewiththetermsandconditions.Applicant
alleged that he made representation against the demand
notice' However'

thatrepresentationwasnotannexedtotheapplication.Therefore,itcannot
beSaidthatprovisionofSectionl3(3A)wasviolated.Applicantadmitted
that demand notice was served upon him' Therefore' it can
safely be held

provisions of the Act

that demand notice was issued in accordance with the

of 2002. The respondent bank issued possession notice on 11'09'20'18

dues'
giving applicant more than 60 days time to square up outstanding

Detailsofmortgagedpropertywerespecifiedinthepossessionnotice'Copy
ofpublication and affixation of possession notice was annexed
to the
in opposition. Applicant admitted that possession notice was
affidavit
receivedbyhim'Therefore,procedureofRule8(1)and8(2)wasfollowed
while issuing possession notice' Hence I do not find infirmity
in the

possession notice.
o\
7. I have perused the aforesaid case laws cited by the applicant and I am

of the view that ratio of those judgements are not squarely applicable in the

case at hand as the facts of cited cases are not similar to the present one.

In this case I do not find any lacuna in the SARFAESI proceeding adopted'by

the respondent bank for recovery of outstanding dues, which is public

money. Bank is a trustee of public fund. Those who availed loan from bank

are duty bound to repay the outstanding dues in accordance with the terms

and conditions of the loan agreement. Bank is also duty bound to recover

public money by adopting legally permissible methods. SARFAESI Act has

given right to the bank to enforce secured asset without intervention of

court. In this case SARFAESI proceedings are in conformity with the Act and
Rules of 2002. In view of the foregoing discussions the relief sought for in

this application is liable to be dismissed'

8. Regarding applicants' prayer with regard to settlement, I am of the

view that it is not for the Court or Tribunal to enforce settlement between

the parties in the contractual field.

ORDER

7. Accordingly S.A. is dismissed. No costs.

Copyofthejudgement/finalorderbeuploadedintheTribunal,swebsite'
File is consigned to the Record Room'

!'J'.::".1"i"r,fiTif !i:'"Tt"'ffi lo."f n'll,.J?:t!i'i?',iiil,.i'T:'rrili

'A'x a'***-'
(A. K. CHATURVEDI)
PRESIDING OFFICER
DRT.III, KOLKATA
 Order Sheet ( continuation)
Case No.
sA./4s8l2OL8 Mr. Dilip Sarkar VS. Bank of India
o fice action
Date of :h date and
dat :d signature
Order
Order with signature of arties when
recessary

Present I

th tL/zots For Applicant: Mr. A.K.Bose , ld. adv.

i
I

For Defendant : Ms. A. Das, ld. adv.

Order No....
Sl. No.....
In this matter order Pronounced in
PKB kept in separate sheets containing
dismissed, No costs.

l'\"/\A i

(A.K. CHATURVEDI) I

PRESIDING OFFICER I

DRT-III, KOLKATA