Appeal No. 01 of 2021-DRAT-Kolkata

IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

Appeal No. 01 of 2021

(Arising out of S.A. No. 34 of 2020 in DRT, Cuttack)

THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

CHAIRPERSON

1. The Authorised Officer, Indian Overseas Bank, Regional Office,

Law Department, B/2, West Saheed Nagar, Bhubaneshwar,

District : Khurda, Odisha – 751 007.

2. The Branch Manger, Indian Overseas Bank, Nayagarh Branch,

College Road, Nayagarh, Odisha – 752 069.

… Appellants

-Versus-

1. Smt. Banita Swain @ Pattanaik, wife of Bipin Bihari Swain, at

Amarendra Bazar, Jadumani Nagar, P.O. & P.S. – Nayagarh,

District : Nayagarh, Odisha – 752 069;

2. Smt. Snehalata Sahoo, wife of Rankanath Sahoo, at Durdura,

P.O. & P.S. – Nayagarh, District : Nayagarh, Odisha – 752 064.

… Respondents

Counsel for the Appellant

… Mr. Aparajita Ghosh

Counsel for Respondent No. 1 … Mr. Durga Charan Sanal with

Ms. Sonali Das

Counsel for Respondent No. 2

\Auction Purchaser

… Ms. Aparajit Rao with Ms. S. Basu

JUDGMENT :

30^th January, 2023

THE APPELLATE TRIBUNAL :

Instant Appeal arises against a judgment and order dated 29^th

September, 2020 passed by Learned Debts Recovery Tribunal, Cuttack

allowing the SARFAESI Application No. 34 of 2020 (Smt. Banita Swain

@ Pattanaik -vs- Authorised Officer, Indian Overseas Bank & Others)

whereby the Learned Debts Recovery Tribunal has allowed the

SARFAESI Application and set aside the auction sale dated 12^th March,

2019 and also the Sale Certificate issued in favour of Respondent No.

2, namely Smt. Snehalata Sahoo with a direction to the SARFAESI

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Appeal No. 01 of 2021-DRAT-Kolkata

Applicant to deposit a sum of Rs.39,30,000.00for refunding the same

to the auction purchaser. Feeling aggrieved, Applicant Bank preferred

the present appeal.

2.

As per the pleadings of the parties, the facts of the matter are

that one Narendra Kumar Swain, Proprietor of M/s. Indian Enterpriser,

availed a Cash Credit Facilities under Easy Trade Scheme for Rs.20.00

lac upon security created by equitable mortgage of land and building

situated at Mouza Nayagarh, Thana District : Nayagarh, Khata No.

1219/168 and 1219/1702, Plot No. 2010/3442 and Plot No.

2010/4633, Area Ac 0.03 decimal and Ac 0.04 decimalstanding in the

name of Respondent No. 1, vide Credit Sanction Advice dated 30^th

June, 2010. It was further enhanced to Rs.35.00 lac by Sanction

Letter dated 25^th September, 2015. Respondent No. 1, namely, Banita

Swain, stood mortgagor for the loan amount. Loan account was

opened and operated as per the terms and conditions; payment was

made by the Bank for repayment but when the same was not

complied with, the account was classified as

N.P.A. on 30^th

September, 2017; notice under Section 13 (2) was issued to the

Borrower as well as the Guarantor, i.e. the Appellant, to repay the

total outstanding dues but the same was not honoured and no

representation was made under Section 13 (3A) of the SARFAESI Act,

2002. Subsequent thereafter, the Applicant Bank issued Notice under

Section 13 (4) of the Act dated 4^th May, 2018 for taking symbolic

possession. No application under Section 17 of the act was filed either

by the Borrower or the Guarantor. On 25^th June, 2018 e-auction sale

notice under Section 8 (6) and 9 (1) of the Security Interest

(Enforcement) Rules, 2002 was published.

3.

Thereafter, the Borrower, namely, Narendra Kumar Swain, filed

a Writ Petition No. 11655 of 2018 before the Hon’ble High Court of

Orissa at Cuttackwherein on 12^th July, 2018 following conditional

order was passed:

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Appeal No. 01 of 2021-DRAT-Kolkata

4.

Conditions, as enforced by the Hon’ble High Court, were not

complied with. Subsequently another order, dated 8^th March, 2019 was

passed by the Hon’ble High Court