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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA Appeal No. 115 of 2023 (Arising out of SA No. 06 of 2016, DRT-2, Kolkata) THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON Central Bank of India, a body corporate, constituted under the Banking Companies (Acquisition and Transfer of Undertakings) commonly known as Head office at Chander Mukhi, Nariman Point, Mumbai-400021, and carrying on Business, inter-alia, from one of its Branch Office at Burdwan, P.O-Burdwan Sadar, District:
Purba Bardhaman 713101.
…Appellants -Versus-
1. Uday Chand Das, son of Late Sadananda Das, residing at Tejganj School Para, P.O- Nutanganj, P.S. and District-Burdwan, Pin -713102.
2. Dipakar Saha, son of Late Parimal Saha, residing at Baranil Pur, Madhyapara, P.O.- Sripally, P.S. & Dist.-Burdwan, Pin-713103.
3. Shankar Saha, son of Late Panchanan Saha, residing at Baranil Pur, Madhyapara, P.O- Sripally, P.S. & Dist.- Burdwan, Pin-713103
4. Jyotsna Saha, Wife of Harendranath Saha, residing at Baranil Pur, Madhyapara, P.O- Sripally, P.S. & Dist.- Burdwan, Pin-713103
5. Nilima Saha, wife of Dulal Chandra Saha, residing at Baranil Pur, Madhyapara, P.O- Sripally, P.S. & Dist.- Burdwan, Pin-713103
6. Shibani Saha, wife of Dijen Chandra Saha, residing at Baranil Pur, Madhyapara, P.O- Sripally, P.S.& Dist.- Burdwan, Pin -713103. … Respondent Counsel for the Appellants Mr. Debasish Chakrabarty with Ms. Sharmistha Pal, Learned Advocate Counsel for the Respondent No. 1 Mr. Debasish Karmakar with Mr. Arya Nandi, Mr. Emon Bhattacharya and Ms. Pooja Sah, Learned Advocate
JUDGEMENT
: On 12th October, 2023 THE APPELLATE TRIBUNAL Feeling aggrieved by the judgment and order dated 28.07.2022 passed by the Learned DRT-2 Kolkata allowing the S.A. No. 06 of 2016, secured creditor i.e. Central Bank of India preferred the Appeal.
2. As per the pleadings of the parties, Respondent No. 2 namely Sri Dipankar Saha was enjoying a term loan facility of Rs.40,000/- from the Appellant i.e. Central Bank of India Burdwan Branch. Parimal Saha (since deceased) father of Sri Dipankar Saha stood as guarantor and also offered his property as security.
3. As per the pleadings, Late Panchanan Saha was the owner of the property by virtue of Lease Deed being No.
8236 of 1949 executed between Sri Dinabandhu Sadhu S/o.
of Late Brajendra Sadhu and Panchanan Saha, S/o. Late Ramlal Saha in respect of property situated at RS Khatian No. 592, Dag No. 976 J.L No. 35 Touzi No. 681 Mouza Panidanga, P.O & District Bardhman. Panchanan Saha died intestate leaving behind his wife Shakuntala Saha (since deceased) and the two sons namely Parimal Saha and Shankar Saha and three daughters namely Jyotsna Saha, Nilima Saha and Sibani Saha.
4. Parimal Saha along with his brother Sri Shankar Saha executed a Partition Deed on 14.01.2004 which was registered on 06.02.2004 before ADSR, Burdwan as Deed No. 600 of 2004. Mutation was also carried out. 5. Sri Parimal Saha in security of the loan in favour of Sri Dipankar Saha created equitable mortgage of the property in favour of the Bank by deposit of certified copy of the main Lease Deed No. 8236 of 1949 and Partition Deed No. 600 of
2004. Letter of Confirmation was also given by Sri Parimal Saha on 26.02.2004. Loan was enhanced upto Rs.8.00 lacs and for the enhanced amount Parimal Saha stood as guarantor. Parimal Saha renewed and reaffirmed the fact of creation of equitable mortgage on 03.06.2005, 23.08.2006 and 20.03.2008. When the loan repayment was irregular, it was classified as NPA. Notice under Section 13(2) of the SARFAESI Act (hereinafter referred to as the Act) was issued on 27.10.2014. Notices were duly received by Respondent No.2. No representation was submitted.
Notice under Section 13(4) of SARFAESI Act was also issued on 23.11.2015 which was duly affixed on the conspicuous place of the secured assets. Possession Notice was also published in two newspapers in “Business Standard” and “Bartaman” on 28.11.2015. 6. Feeling aggrieved by the possession notice, Respondent No. 1, Uday Chand Das preferred an application under Section 17 of the SARFAESI Act challenging the SARFAESI action initiated by the Bank. On 29.01.2016, an application under Section 14 of the SARFAESI Act, 2002 was made by the Appellant which was allowed on 21.07.2016. Physical possession was taken on 28.01.2017 which was also challenged by the SARFAESI Applicant. Auction sale notice was published on 22.03.2017 which was also challenged by filing I.A. No. 125 of 2017. Consequently, SARFAESI Application was allowed by the Learned DRT by impugned order.
7. Feeling aggrieved, Appellant secured creditor preferred the Appeal.
8. I have heard the Learned Counsel for the Appellant as well as Respondent No. 1 and perused the record. 9. Learned Counsel for the Appellant submits that the Learned DRT has erred in recording a finding that notice under Section 13(2) of the SARFAESI Act was not served upon Parimal Saha. No original Title Deeds were lying with the Bank. Accordingly, no security interest was created in favour of the secured creditor. It is further submitted that the Learned DRT has erred in not placing upon the assertions made in the Sale Deed in favour of the SARFAESI Applicant wherein recital of consent by the daughters of Panchanan Saha for partition was recorded. It is further submitted that the Learned DRT erred in recording the finding that the mortgage was never created in favour of the Bank. Accordingly, all the actions undertaken by the Bank are null and void.
10. Per con
