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IN DEBTS RECOVERY APPELLATE TRIBUNAL, ALLAHABAD
Regular Appeal No. 88/2018
M/s Saraswati Enterprises, Proprietor Sanjay Kumar, S/o Late
Satya Naayan Singh, Takiya , Ward No. 3, P.O.-Takiya Bazar,
Police Station-Sasaram (Model), District-Rohtas-821115.
.……………....……………..….……………...………………………………Appellant
Versus
1.
Authorized Officer, Bank of Baroda, Sasaram, P.O. and P.S.
Sasaram, District-Rohtas-821115.
2.
Bank of Baroda, Main Branch, Hasnu Market, Old G.T. Road,
Sasaram, Rohtas-821115.
3.
Regional Office, Anand Vihar, 4th Floor, West Boring Canal
Road, Patna-800001.
….…...…………..……………………………………………………………Respondents
Advocates who appeared in this case
For the appellant
Shri V. K. Shukla, Advocate
For the respondents
Shri G. K. Srivastava, Advocate
JUDGMENT
Date of Decision: 23.03.2021
R. S. KULHARI, CHAIRPERSON
ORAL
1.
The challenge under this appeal preferred under section 18
of the Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (for short
<the SARFAESI Act=) is the order dated 17.10.2017 passed
by the Presiding Officer, DRT,
Patna, whereby the
securitization application (S.A.) filed by the borrower was
dismissed.
2.
The facts of the matter giving rise to this appeal are, that
the respondent-Bank granted certain credit facilities to the
appellant-M/s Saraswati Enterprises through its proprietor
Sanjay Kumar. The loan was secured by equitable mortgage
of
immovable
property
belonging
to
the
borrowers/guarantors.
The
borrowers
defaulted
in
repayment of the loan, hence the Bank issued demand
notice dated 18.11.2016 under section 13(2) of the
SARFAESI Act. The borrowers filed representation dated
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21.01.2017 against the said demand notice. However, the
Bank did not act upon the earlier demand notice and issued
fresh demand notice dated 4.4.2017 for a sum of Rs.
52,36,071. Since no amount was paid, hence the symbolic
possession was taken by the Bank by issuing possession
notice dated 26.07.2017 under section 13(4) of the said
Act.
3.
The borrowers challenged the proceedings of the Bank by
filing S.A. stating that fresh demand notice was not served
and the possession was not taken in accordance with law.
The Tribunal below vide impugned order dismissed the S.A.
observing that the demand notice and the possession notice
were properly issued and served. Being aggrieved by the
said order, the present appeal has been filed by the
borrower.
4.
Learned counsel for the appellant submits that the demand
notice dated 4.4.2017 was stated to have been sent on
6.4.2017, but as per report of the post office, all four
notices were received by one Paras Nath Singh, who was
neither representative of the firm nor family member of the
guarantor, therefore, it cannot be said that the demand
notice was served on the S.A.-applicant. Further contention
is that the copy of possession notice was sent through
courier after two days of taking symbolic possession,
whereas the Bank was required to send it through
registered post and the delay of two days in sending the
possession notice has not been explained, therefore, the
possession notice was also not duly served.
5.
On the other hand, the learned counsel for the Bank
contends that earlier demand notice had been withdrawn
and thereafter, fresh demand notice was sent on the same
address, which was delivered on 7.4.2017. Shri Paras Nath
Singh was the representative of the firm, who had received
the notices, otherwise, the notices would have returned
unserved. Further, the requirement of the possession notice
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is to send and serve the same to the borrower/guarantor
and it does not make any difference, if it was send through
courier. The borrowers/guarantors intentionally refused to
receive the same, hence, the notices returned unserved.
Thus, a proper compliance of rules had been made.
6.
Having heard the learned counsels for the parties and
c
