BEFORE HON’BLE THE DEBT RECOVERY TRIBUNAL
BENCH AT JABALPUR
SECURITIZATION APPEAL NO. 49 OF 2017
APPLICANT : M/s Sairam Agencies
VERSUS
NON-APPLICANTS : The
Chief Manager & Ors.
I N D E X
|
S. No.
|
Description of documents
|
Annexure
|
Pages
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|
1.
|
Index
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|
1
|
|
2.
|
Memo
of written statement alognwith affidavit
|
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2 TO 10
|
|
3.
|
Chronology of Events
|
|
11
|
|
4.
|
Copy of the Acceptance of Bid dated
22.02.2017
|
R3-1
|
12 & 13
|
|
5.
|
Copy of the sale certificate dated
18.03.2017
|
R3-2
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14
|
|
6.
|
Copy of the confirmation of the
sale of immovable property dated 22.02.2017
|
R3-3
|
15
|
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7.
|
Copy of the Order dated 06.03.2017
|
R3-4
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16 TO 20
|
|
8.
|
Copy of the notice dated 08.04.2017
|
R3-5
|
21
|
|
9.
|
Copy of the application dated
24.05.2017 submitted by the Non-applicant No. 3
|
R3-6
|
22
|
|
10.
|
Copy of the application dated
09.06.2017 submitted by the Non-applicant No. 3
|
R3-7
|
23
|
|
11.
|
Copy
of the notice dated 16.06.2017
|
R3-8
|
24
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12.
|
Copy
of the Cash Memo No. C005450 dated 13.06.2017
|
R3-9
|
25
|
|
13.
|
Copy
of Electricity Bill for the month of
May, 2017 issued by the Madhya Pradesh Central Zone Electricity Distribution
Company Limited
|
R3-10
|
26
|
|
14.
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Vakalatnama
|
|
27
|
PLACE:
JABALPUR
DATED: ADVOCATE
FOR NON-APPLICANT NO. 3
BEFORE
HON’BLE THE DEBT RECOVERY TRIBUNAL BENCH AT JABALPUR
SECURITIZATION
APPEAL NO. 49 OF 2017
APPLICANT : M/s Sairam Agencies
VERSUS
NON-APPLICANTS : The
Chief Manager & Ors.
WRITTEN
STATEMENT ON BEHALF OF NON-APPLICANT NO. 3 AUCTION PURCHASER MRS. MANJU JAIN
Answering non-applicant
named above strongly opposes the relief sought by the applicant and begs to her
written statement as under :
1. Nothing in the appeal under reference shall deemed to,
admitted unless it has been specifically admitted in this written statement.
2.
The Non-applicant No. 3 herein was the
auction purchaser, being the highest bidder for Rs.20,94,000/-, in respect of
the residential house admeasuring 450 Square foot in bearing Municipal
Corporation, Bhopal No. B-36, Ashoka Garden, Ward No. 64, Near Water Tank,
Bhopal (Madhya Pradesh), which was brought to sale for recovery of loan amounts
under the provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short “the
Securitisation Act”). Copy of the Acceptance of Bid dated 22.02.2017 is filed herewith
and marked as Exhibit R3/1. Copy
of the sale certificate dated 18.03.2017 is filed herewith and marked as Exhibit R3/2. The auction was
confirmed by the bank on 22.02.2017 on the Non-applicant No. 3’s depositing Rs.20,94,000/-.
Copy of the confirmation of the sale of immovable property dated 22.02.2017 is
filed herewith and marked as Exhibit
R3-3. The Non-applicant No. 3 was not put in possession of the property
in question even though the auction was confirmed.
3.
Non-applicant NO. 2 filed an application
under Section 14 of the Act before the Additional Collector, Bhopal. The Court
was pleased to kind enough in passing the Order dated 06.03.2017 directing the Tahsildar
to handover the vacant possession of the subjected property to the
Non-applicant No. 2. Copy of the Order dated 06.03.2017 is filed herewith and
marked as Exhibit R3-4. A
notice dated 08.04.2017 was issued to the applicant by the Tahsildar in terms
of aforesaid order. Copy of the notice dated 08.04.2017 is filed herewith and
marked as Exhibit R3-5. Since
nothing happened answering Non-applicant No. 3 then moved an application before
the Non-applicant No. 2 seeking possession. Copy of the application dated
24.05.2017 submitted by the Non-applicant No. 3 is filed herewith and marked as
Exhibit R3-6. Answering
Non-applicant No. 3 then moved an application before the Non-applicant No. 2 seeking
possession. Copy of the application dated 09.06.2017 submitted by the
Non-applicant No. 3 is filed herewith and marked as Exhibit R3-7. Thereafter the Tahsildar issued a fresh notice
dated 16.06.2017 to applicant directing him to handover the vacant possession
of the subjected house to Non-applicant NO. 2 herein. Copy of the notice dated
16.06.2017 is filed herewith and marked as Exhibit
R3-8.
4.
Applicant herein, in the meanwhile, filed an
application before the Debt Recovery Tribunal (for short “the DRT”), Jabalpur
under Section 17 of the Securitisation Act challenging the sale notice dated
15.01.2017. It is humbly submitted that the Non-applicant No. 3 is a bonafide
purchaser for value and the sale was confirmed in his favour as early as on 22.02.2017.
Further, it is pointed out that the application preferred by Applicant before
the DRT, challenging the sale notice dated 15.01.2017, is not maintainable.
5.
The Punjab National Bank had advanced a loan
of Rs.18 lakhs to M/s Sai Ram Agencies, applicant herein, through its
proprietor, Mr. Shyam Chaurasia. The loan was secured by equitable mortgage
executed by Applicant in respect of the residential house admeasuring 450
Square foot in bearing Municipal Corporation, Bhopal No. B-36, Ashoka Garden,
Ward No. 64, Near Water Tank, Bhopal (Madhya Pradesh). Original title deeds of
the abovementioned properties were duly deposited with the bank at the time of
availing of the loan. Since they committed default in re-paying the loan, the
bank issued notice under Section 13(2) of the Securitisation Act and took steps
under Section 13(4) of the Securitisation Act in respect of properties. Auction
notice was duly published in the newspapers on 15.01.2017. No objection was
raised by the applicant and the suit land was auctioned on 22.02.2017, which
was settled in favour of the highest bidder – the Non-applicant No. 3 herein.
The entire auction price was paid by the auction purchaser and the sale in his
favour was duly confirmed. Applicant challenged the sale notice, as already
indicated, by filing an application No.49/2017 before the DRT, Jabalpur.
6.
The bank had advanced loans on the strength
of the above-mentioned documents which stood in the names of applicant. Due to
non-repayment of the loan amount, the Bank can always proceed against the
secured assets. Security interest, within the meaning of Section 2(zf) has been
created in respect of the above mentioned property which are secured assets
within the meaning of Section 2(zc), in favour of the secured creditor (the
bank) within the meaning of Section 2(zd). On failure to re-pay, the bank,
secured creditor can always enforce its security interest over the secured
assets.
7.
Secured asset is defined under Section 2(zc)
of the Securitisation Act to mean the property on which security interest is
created. Section 13(1) of the Securitisation Act states that notwithstanding
anything contained in Section 69 or 69A of the Transfer of Property Act, 1882,
any security interest created in favour of any secured creditor may be
enforced, without the intervention of the court or tribunal by such creditor,
in accordance with the provisions of the Act. In case the borrower fails to
discharge his liability, the bank can take the measures provided in Section
13(4) of the Securitisation Act for recovery of the loan amount. The “measures”
available for enforcement of security interest is dealt with in the following
provision:
13.
Enforcement of security interest –
(1)
to (3) xxx xxx xxx
(4)
In case the borrower fails to discharge his liability in full within the period
specified in subsection (2), the secured creditor may take recourse to one or
more of the following measures to recover his secured debt, namely:-- (a) take
possession of the secured assets of the borrower including the right to
transfer by way of lease, assignment or sale for realising the secured asset;
(b) take over the management of the business of the borrower including the
right to transfer by way of lease, assignment or sale for realising the secured
asset:
PROVIDED
that the right to transfer by way of lease, assignment or sale shall be
exercised only where the substantial part of the business of the borrower is
held as security for the debt:
PROVIDED
further that where the management of whole of the business or part of the
business is severable, the secured creditor shall take over the management of
such business of the borrower which is relatable to the security or the debt;
(c) appoint any person (hereafter referred to as the manager), to manage the
secured assets the possession of which has been taken over by the secured
creditor; (d) require at any time by notice in writing, any person who has
acquired any of the secured assets from the borrower and from whom any money is
due or may become due to the borrower, to pay the secured creditor, so much of
the money as is sufficient to pay the secured debt.”
8.
Section 17 of the Securitisation Act confers
a right of appeal to any person, including the borrower, if that person is
aggrieved by any of the “measures” referred to in subsection (4) of Section 13
taken by the Secured Creditor. The operative portion of Section 17 is extracted
hereinbelow for ready reference:
“17.
Right to appeal : (1) Any person (including borrower), aggrieved by any of the
measures referred to in sub-section (4) of section 13 taken by the secured
creditor or his authorised officer under this Chapter, may make an application
along with such fee, as may be prescribed to the Debts Recovery Tribunal having
jurisdiction in the matter within forty-five days from the date on which such
measure had been taken:
PROVIDED
that different fees may be prescribed for making the application by the
borrower and the person other than the borrower. Explanation : For the removal
of doubts, it is hereby declared that the communication of the reasons to the
borrower by the secured creditor for not having accepted his representation or
objection or the likely action of the secured creditor at the stage of
communication of reasons to the borrower shall not entitle the person
(including borrower) to make an application to the Debts Recovery Tribunal
under sub-section (1) of Section 1.
9.
The Debts Recovery Tribunal shall consider
whether any of the measures referred to in subsection (4) of section 13 taken
by the secured creditor for enforcement of security are in accordance with the
provisions of this Act and the rules made thereunder. (3) If, the Debts
Recovery Tribunal, after examining the facts and circumstances of the case and
evidence produced by the parties, comes to the conclusion that any of the
measures referred to in sub-section (4) of section 13, taken by the secured
creditor are not in accordance with the provisions of this Act and the rules
made thereunder, and require restoration of the management of the secured
assets to the borrower or restoration of possession of the secured assets to
the borrower, it may by order, declare the recourse to any one or more measures
referred to in subsection (4) of section 13 taken by the secured assets as
invalid and restore the possession of the secured assets to the borrower or
restore the management of the secured assets to the borrower, as the case may
be, and pass such order as it may consider appropriate and necessary in
relation to any of the recourse taken by the secured creditor under sub-section
(4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse
taken by a secured creditor under subsection (4) of section 13, is in
accordance with the provisions of this Act and the rules made thereunder, then,
notwithstanding anything contained in any other law for the time being in
force, the secured creditor shall be entitled to take recourse to one or more
of the measures specified under sub-section (4) of section 13 to recover his
secured debt. (5) Any application made under sub-section (1) shall be dealt
with by the Debts Recovery Tribunal as expeditiously as possible and disposed
of within sixty days from the date of such application:
PROVIDED
that the Debts Recovery Tribunal may, from time to time, extend the said period
for reasons to be recorded in writing, so, however, that the total period of
pendency of the application with the Debts Recovery Tribunal, shall not exceed
four months from the date of making of such application made under sub-section
(1).
(6)
If the application is not disposed of by the Debts Recovery Tribunal within the
period of four months as specified in sub-section (5), any party to the
application may make an application, in such form as may be prescribed, to the
Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious
disposal of the application pending before the Debts Recovery Tribunal and the
Appellate Tribunal may, on such application, make an order for expeditious
disposal of the pending application by the Debts Recovery Tribunal.
(7)
Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as
far as may be, dispose of application in accordance with the provisions of the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the
rules made thereunder.”
10.
Any person aggrieved by any order made by
the DRT under Section 17 may also prefer an appeal to the Appellate Tribunal
under Section 18 of the Act. 17. The expression ‘any person’ used in Section 17
is of wide import and takes within its fold not only the borrower but also the
guarantor or any other person who may be affected by action taken under Section
13(4) of the Securitisation Act. Reference may be made to the Judgment of the
Apex Court in United Bank of India v. Satyavati Tondon and others (2010) 8 SCC
110 .
11.
It is respectfully submitted that a fraud
have been played upon by the applicant so also trying to mislead this Hon’ble
Tribunal. In the cause title applicant has stated his address of shop as “F-2
Vardhman City Plaza” whereas it is “F-3 Vardhman City Plaza” in line 3 of “Para
5.01”. It is “F-3 Vardhman City Plaza” in Para 1 of the detailed affidavit.
Again it is corrected/ over written as “F-3 Vardhman City Plaza” in line 2 of Para
1 of the letter dated 16.02.2017 Exhibit
A-8. The true position is that a firm named as “Urmila Enterprises” is
running at “F-03 Vardhman City Plaza” bearing drug license No. 20B/ 243/ 26/
2015, & 21B/ 244/ 26/ 2015. Copy of the Cash Memo No. C005450 dated
13.06.2017 is filed herewith and marked as Exhibit
R3-9.
12.
So far as residing in the subjected house is
concerned, it is humbly submitted that it is locked since November, 2016 as
there was no consumption of electricity except in the month of December, 2016 as
evident from the Electricity Bill for the month of May, 2017 issued by the
Madhya Pradesh Central Zone Electricity Distribution Company Limited. Copy of
Electricity Bill for the month of May, 2017 issued by the Madhya Pradesh
Central Zone Electricity Distribution Company Limited is filed herewith and
marked as Exhibit R3-10.
13.
Qualification of younger brother was shown
as B. Pharma whereas it pertinent to mention here that for purposes of whole
sale business of drugs it is not necessary to have a B. Pharma, it is only
required in case of retail business. Obtaining a loan for the purposes of cheating
the bank is highly objectionable.
14.
The answering Non-applicant No.
3 relies on and file documents as per list and will rely on and file more
documents as and when necessary.
Affidavit
is false and specifically denied.
An affidavit in support
of this written statement is being filed herewith.
Accordingly the instant
complaint, being devoid of any merit, is liable to be rejected, with heavy
costs.
PLACE:
JABALPUR
DATED: NON-APPLICANT
NO. 3
ADVOCATE
FOR NON-APPLICANT NO. 3
VERIFICATION
I, Mrs.
Manju Jain, Aged about 50 Years, W/o Jinendra Jain, R/O B-68, New Ashoka
Garden, Bhopal, (Madhya Pradesh), the above named Non-applicant
No. 3 do hereby verify on oath that the contents of the written statement above
are true to my personal knowledge & belief and nothing material has been
concealed or falsely stated. Verified at Jabalpur this 03RD day of
July, 2017.
NON-APPLICANT NO. 3
BEFORE
HON’BLE THE DEBT RECOVERY TRIBUNAL BENCH AT JABALPUR
SECURITIZATION
APPEAL NO. 49 OF 2017
APPLICANT : M/s Sairam Agencies
VERSUS
NON-APPLICANTS : The
Chief Manager & Ors.
AFFIDAVIT
I, Mrs.
Manju Jain, Aged about 50 Years, W/o Jinendra Jain, R/O B-68, New Ashoka
Garden, Bhopal, (Madhya Pradesh), the above named
deponent, solemnly affirm and state on oath as under:
1.
That I am Non- applicant No. 3 in the above mentioned Case and am
fully conversant with the facts deposed to in the written statement.
2.
That the contents of paragraphs
1 to end of the accompanying written statement are true to my personal
knowledge and the contents of paragraphs are based on legal advice, which I
believe to be true. No material has been concealed and no part is false. So
help me God.
3.
That the Annexure No(s). to the
accompanying written statement are true copies of the originals and I have
compared the said Annexures with their respective originals and certify them to
be true copies thereof.
PLACE
: JABALPUR
DATED : DEPONENT
VERIFICATION
I,
Mrs.
Manju Jain, the above named deponent do hereby verify
on oath that the contents of the affidavit above are true to my personal
knowledge and nothing material has been concealed or falsely stated. Verified
at ______this______day of _______
DEPONENT
BEFORE HON’BLE THE DEBT RECOVERY TRIBUNAL
BENCH AT JABALPUR
SECURITIZATION APPEAL NO. 49 OF 2017
APPLICANT : M/s Sairam Agencies
VERSUS
NON-APPLICANTS : The
Chief Manager & Ors.
LIST OF DOCUMENTS
|
S.No
|
Description
of document
|
Date
of document
|
Original
copy
|
Number
of page
|
|
1.
|
Acceptance of Bid
|
22.02.2017
|
Xerox
|
02
(Two)
|
|
2.
|
sale certificate
|
18.03.2017
|
Xerox
|
01
(One)
|
|
3.
|
confirmation of
the sale of immovable property
|
22.02.2017
|
Xerox
|
01
(One)
|
|
4.
|
Order passed by Additional
Collector, Bhopal
|
06.03.2017
|
Xerox
|
05 (Five)
|
|
5.
|
notice issued by
Tahsildar
|
08.04.2017
|
Xerox
|
01
(One)
|
|
6.
|
application submitted
by the Non-applicant No. 3
|
24.05.2017
|
Xerox
|
01
(One)
|
|
7.
|
application submitted
by the Non-applicant No. 3
|
09.06.2017
|
Xerox
|
01
(One)
|
|
8.
|
notice issued by
Tahsildar
|
16.06.2017
|
Xerox
|
01
(One)
|
|
9.
|
Cash Memo No.
C005450
|
13.06.2017
|
Xerox
|
01
(One)
|
|
10.
|
Electricity Bill
for the month of May, 2017 issued by the Madhya Pradesh Central Zone Electricity
Distribution Company Limited
|
May,
2017
|
Xerox
|
01
(One)
|
PLACE:
JABALPUR
DATED: ADVOCATE
FOR NON-APPLICANT NO. 3
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