2023 Supreme(Cal) 884

IN THE HIGH COURT AT CALCUTTA
Ajoy Kumar Mukherjee, J.
Sri Sukumar Banaerjee – Petitioner
Versus
State of Bank of India & Ors. – Opposite Parties
C.O. 2438 of 2019
Decided On : 03-08-2023

The DRAT has the power to remand a SARFAESI application to the DRT for fresh adjudication, where the DRT has not considered various disputed issues raised by the parties, including service of notice, payment or non-payment by the petitioner, and service of bank draft upon the bank.

Headnote:

SARFAESI ACT - SALE OF SECURED ASSET - VIOLATION OF RULES - REMAND OF CASE FOR FRESH ADJUDICATION: The Debts Recovery Appellate Tribunal (DRAT) was justified in remanding a SARFAESI application to the Debts Recovery Tribunal (DRT) for fresh adjudication, where the DRT had set aside a sale conducted by the bank without considering various disputed issues, including service of notice, payment or non-payment by the petitioner, and service of bank draft upon the bank.

Fact of the Case:

The petitioner challenged the sale of his secured asset by the bank under the SARFAESI Act, alleging that the bank had violated various provisions of the Act and the Security Interest (Enforcement) Rules, 2002. The DRT set aside the sale on the ground that the bank had not given the petitioner a clear 30 days' notice of the sale, as required under Rule 8(6) of the Rules. The bank appealed to the DRAT, which remanded the matter to the DRT for fresh adjudication.

Finding of the Court:

The DRAT was justified in remanding the case to the DRT for fresh adjudication, as the DRT had not considered various disputed issues raised by the parties, including service of notice, payment or non-payment by the petitioner, and service of bank draft upon the bank. These issues involved not only questions of law but also questions of fact, which could be adjudicated only on appreciation of evidence.

Issues: 1. Whether the bank had violated the provisions of Rule 8(6) and 9(1) and 9(4) of the Securing Interest(Enforcement) Rule 2002. 2. Whether the bank had intentionally suppressed the fact about the sale of the secured property when the order dated 29.09.2016 was passed. 3. Whether notice regarding days hearing on 29.09.2016 were duly served upon the Bank or not. 4. Whether on 29.09.2016, the Bank was represented at all or not. 5. Whether Tribunal was erred in deciding entire SARFAESI application, while the issue for consideration before the Tribunal on 29.09.2016 was as to whether the proposed sale was liable to be stayed or not. 6. Whether at the time of passing the order, the Tribunal duly analysed that the steps taken by Bank, are in accordance with law. 7. Whether sufficient opportunity was granted to the Bank to contest the SARFAESI application at the time of passing orders by the DRT under challenge. 8. Whether Tribunal was justified from the facts and circumstances of the case, to direct restoration of possession on the terms, it had so directed. 9. Whether the direction passed by Tribunal in it’s order dated 29.09.2016 to receive outstanding amount in instalments was in accordance with the guidelines of Reserve Bank of India or not. 10. Whether Bank has violated the provision under section 13(3A) of the SARFAESI Act by not giving reply to petitioner’s representation dated 29.07.2015 or not. 11. Whether Bank violated the provision under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 in taking possession of the secured asset without delivering possession notice to Borrower. 12. Whether Bank has waived their right to challenge the order dated 29.09.2016 by not preferring any appeal against the order. 13. Whether Bank refused to receive demand drafts from petitioner in terms of order dated 29.09.2016, on the ground of non-availability of certified copy of order, when petitioner allegedly went to tender the same on 13.10.2016 and 31.10.2016. 14. Whether despite acknowledgement of delivery as per postal track report, the Bank illegally denying the receipt of the two Bank drafts. 15. Whether the petitioner/borrower without complying the order dated 29.09.2016 had sought for direction upon Bank to comply with the order about restoration of physical possession of the secured arrest.

Ratio Decidendi: The DRT had failed to consider various disputed issues raised by the parties, including service of notice, payment or non-payment by the petitioner, and service of bank draft upon the bank. These issues involved not only questions of law but also questions of fact, which could be adjudicated only on appreciation of evidence. The DRAT was justified in remanding the case to the DRT for fresh adjudication, as the DRT had not considered these issues.

Final Decision: The order of the DRAT remanding the matter to the DRT for fresh adjudication was upheld.