1

Application under sub-section (1) of section 17 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 as amended upto date

Before the Debts Recovery Tribunal III , Kolkata

th
8 Floor, Jeevan Sudha Building, 42C Jawharlal Neheru Road,
Kolkata – 700071

Sarfaesi Application No. of 2019

SHILPI CHAKRABORTY GHOSH

VS
HDFC BANK LTD. & ANR.

Advocate-on-Record
DEBISREE ADHIKARY, Advocate
C/o. D & D Law and Tax Firm
14B, A.C.Banerjee Road,
Kolkata – 700057
E-mail – ddlawtaxfirm@gmail.com
Contact - 9804214281
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FORM

Application under sub-section (1) of section 17 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 as amended upto date

For use in Tribunal’s Office : -

Date of Filing : /08/2019

Date of Receipt :

Registration No : of 2019

---------------------------------
Signature
Registrar
DRT III ,Kolkata
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General Index

Sl no. Description Pg. no.

1. Application u/s 17(1) of Sarfaesi Act, 2002 1 to 25

2. List of documents enclosed 23 to 24

3. Copy of documents 26 to 110

4. Vakalatnama 111
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BEFORE THE DEBTS RECOVERY TRIBUNAL III , KOLKATA

SARFAESI APPLICATION NO. OF 2019

SHILPI CHAKRABORTY GHOSH

…………. Applicant

-VS-

HDFC BANK LTD. & ANR.

…………. Defendants

Details of application :
I. PARTICULARS OF THE APPLICANT :
i. Name of the Applicant : Shilpi Chakraborty Ghosh

ii. Address of the Applicant : C/o. Gopal Ghosh

M.B.Sarkar Bagan
S. M. Bose Road,
Near 5 no. Railway Gate
Agarpara, Kolkata – 700109

iii. Address for service of all notices Same as above

:

2. PARTICULARS OF THE DEFENDANTS :

i. Name of the Defendants : 1) Housing Development Finance
Corporation Ltd. (PAN
AAACH0997E)

2) The Authorised Officer,

Housing Development Finance
Corporation Ltd.
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ii. Address of the Defendants : 1) Ramen House,HT Parekh Marg

169, Backbay Reclamation ,
Church Gate, Mumbai –
400020

2) 9 Shakespeare Sarani Branch,

Brooke House, 2nd floor,
Kolkata - 700071
iii. Address for service of all notices 1) Same as above
:
2) Same as above

3. JURISDICTION OF THE TRIBUNAL :

The applicant declares that the present application under section 17 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 falls within the jurisdiction of this Hon’ble Tribunal as
the alleged subject property is situated within the jurisdiction of Police Station –
Ghola, Sodepur, N 24 Pargana.

4. LIMITATION :

The applicant declares that this application is filed within the limitation
prescribed under the Securitisation and Reconstruction of the Financial Assets
and Enforcement of Security Interest Act, 2002. The sale notice dated 27-07-2019
(pg 103) issued by defendant no. 2, being the authorised officer the of defendant
no.1, was received by the applicant on 29-07-2019.

4A. LOCUS OF APPLICANT : Borrower

5. FACTS OF THE CASE :

1. All that piece and parcel of Flat no. D. admeasuring about 650 sq. ft.
approximately on the 2nd floor in the apartment named “Panthaneer”
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comprising of land under Mouza Natagar, J.L. No 15, Dag no. 3080 under
Khatian no. 932 within the limits of Panihati Municipality, Holding no. 10,
Barasat Road, Ghola check post, P.O – Ghola Bazar, P.S – Ghola in the
District N 24 Pargana together with undivided proportionate share of right
and interest on the said land is the “subject property” of the instant
application.

2. That on or about 02-12-2003 an agreement for sale was executed by and

between the applicant and the concerned Developer being a partnership
Firm namely ‘The Friends Construction’ wherein the set forth value of the
subject property was fixed at Rs. 4,71,250/- (Rupees Four lac seventy one
thousand two hundred and fifty) only, a copy of the said agreement for
sale dated 02-12-2003 along with the memo of consideration issued by the
said developer for Rs. 70,687/- as part payment made on the same day are
annexed herewith and collectively marked ‘A’.

3. On or about 05-11-2003 the applicant applied to the defendant no. 1 for

housing loan which was approved by the said defendant vide its letter of
sanction dated 24-11-2003 for a sum of Rs. 4,00,000/- (Rupees four lac)
only @ interest of 7.75% p.a. on a variable rate basis on EMI of Rs. 3284/-
p.m. for a term of 20 years. The copy of loan proposal form and sanction
letter dated 24-11-2003 are annexed herewith and collectively marked ‘B’.

4. Accordingly, on 05-02-2004 the loan agreement was executed and 2 nos.

of cheque total amounting to Rs. 4 Lac (Rupees four lac) only was issued in
favour of the concerned developer. A copy of the said loan agreement
dated 05-02-2004 along with the memo of cheques are annexed herewith
and collectively marked ‘C’.

5. The applicant further paid the following sum on various dates and factually
the developer received more than price fixed for the subject property :
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Date Received from Mode of Amount in INR

payment
01-12-2003 Applicant Cheque 5000/-
01-12-2003 Applicant Cash 5000/-
02-12-2003 Applicant Cash 70,687/-
04-12-2004 Applicant Cash 20,000/-
18-12-2004 Applicant Cash 15,000/-
06-05-2005 Applicant Cash 15,000/-
26-12-2005 Applicant Cash 24,500/-
05-02-2004 HDFC Cheque 3 Lac
09-03-2004 HDFC Cheque 1 Lac
Total 5,55,147/-

Copies of the money receipts issued by the concerned developer is

annexed hereto and collectively marked ‘D’.

6. It is pertinent to mention that registration of the said property was not

carried out by the defendant no.1 after disbursement of the aforesaid loan
but your applicant had duly started repayment of the said loan on and
from 01-04-2004, a copy of repayment details issued by the defendant no.
1 for the year ending 31-03-2005 is annexed herewith and marked ‘E’.

7. That sometime in January, 2005 your applicant got married and conceived
around September,2005. Soon after conceive the medical condition of
applicant was not favourable as she was carrying high risk pregnancy , she
had to resign from her job in December, 2005. But there was no delay
and/or default in repayment of the subject loan by the applicant.

8. It is significant to mention that after marriage the subject property was

put under lock and key and the applicant shifted her in law house. On or
about 24-01-2006 the applicant applied to the defendant no.1 to update
her in laws’ address as her permanent address for service of
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communications which is mentioned in the cause title above and also

requested to delete the address of her parental house being ‘’Udayachal
Abasan, Flat no. F, 4th floor, S.M.Bose Road, Agarpara, Kolkata – 700109’’
and her work place which she left some time in December, 2005 being
“Distributed Object Technologies Ltd., Module No. 434 – 436, SDF Building,
Sector V, Salt Lake City, Kolkata – 700091’’. Such request was duly
processed by the defendant no.1 and copies of subsequent
communications were duly sent by the said defendant via Indian Postal
Service only to such updated address , copies of communication since
February, 2006 in this regard are annexed and collectively marked ‘F’.

9. As the applicant had to resign from her job was facing financial crunch and
such facts were sometime discussed during casual talks with the partners
of the concerned developer firm who advised to transfer the balance of
the existing lability/ loan due to the defendant no.1 to ICICI Home Finance
Co. Ltd. (IHFC) to enjoy better rate of interest by applying source as said
partners had good contacts due to their business with the said bank.
Relying upon the words of the said partners the applicant decided to
transfer her concerned loan account from HDFC to IHFC. As the applicant
was advised to complete bed rest at the relevant time all documentations
and paper work were done at her residence for the said purpose.

10. Accordingly the applicant did signature upon some blank proposal from
but instead of balance transfer, IHFC Chowringhee branch taking
advantage of pending registration from the side of defendant no.1 ,
purportedly sanctioned fresh housing loan in favour of the applicant vide
it’s letter of sanction dated 30-12-2005 for a sum of Rs. 4,36,004/- (Rupees
four lac thirty six thousand and four) only @ interest of 8.75% p.a. on
floating rate basis on EMI of Rs. 3513/- p.m. for a term of 20 years, by
issuing a cheque dated 31-12-2005 for Rs. 4 Lac only in favour of the
concerned developer which was duly encashed.
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11. Upon occurrence of such event the applicant/ applicant immediately

enquired about such wrongful act of the IHFC when the said bank assured
that until registration of the subject property is carried out the formalities
for balance transfer is not possible. As such on 12-01-2006 the subject
property was duly registered before the Registrar of Assurance , Kolkata at
the instance of IHFC Bank , copy of the said letter of sanction dated 30-12-
2005 along with memo of cheques for Rs. 4 Lac in favour of the said
developer are annexed hereto and collectively marked “F1”.

It is pertinent to mention that after registration of the subject

property the original copy of the IGR was taken away by the advocate
deputed by IHFC and the applicant has no knowledge and idea thereafter
about the release of the concerned Deed of Conveyance relating to the
subject property, copy whereof is annexe and marked as “F2”.

12. After registration of the said property the applicant immediately started
repayment to IHFC.

It is very much crucial to mention that it was advised by IHFC that

the applicant is required to make payment of EMI to HDFC until process of
balance transfer is completed. It was further advised by IHFC that such
dual payment will be adjusted by IHFC in the revised Schedule of
repayment after balance transfer is done.

13.The applicant humbly submits that it is a fact that the applicant was
victimised by the burden to pay-off two housing loans for the same
property whereas all the partners of the concerned developer knowingly
and intentionally enjoyed wrongful gain by receiving a total sum of Rs.
9,55,187/- ( Rupees eight lacs fifty five thousand one hundred and eighty
seven) only for the subject property by accepting Rs. 4 Lac from HDFC and
further Rs. 4 Lac from IHFC and the rest of the Sum of Rs. 1,55,187/- from
in-pocket of the applicant as stated above.
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14. That since after birth the child of the applicant was suffering from severe
kidney problem ‘Reflux level -5’ which was treated for years. During this
period the applicant and her husband was passing their days under great
trauma for the baby and was not in a mental condition to peruse/ follow
up with IHFC for balance transfer. Your applicant craves leave to produce
relevant medical documents in this regard, if necessary.

15. It is pertinent to mention that on and from 2007 the applicant did not
receive any statement of accounts from the end of the defendant no.1 ,
HDFC which gave an impression to the applicant completion of the process
of balance transfer from defendant no.1 to IHFC.

16. But the applicant was bewildered when on or about 05-01-2018 she came
to know from the tenant in possession of the subject property , that the
representatives of the defendant no.1 visited the subject property and
asked to vacate such property in view of order passed by the Ld. District
Magistrate , N 24 Pargana in favour of the defendant no.1, to take over
physical possession of the same, but no copy of such order was supplied
at that moment.

Coming to know the same the applicant rushed to the

Shakespeare Sarani Branch of the defendant no.1 to enquire when said
defendant clearly refused to give any answer and also refused to supply
copy of such order passed by Ld. DM.

17. Thereafter the applicant was advised to file an application u/s 144(2) for
Cr.P.C. for obtaining an order of injunction against the defendant no.1, its
men, agents and servants from disturbing peaceful possession of the
applicant over the subject property , when upon hearing an order was
passed on 08-01-2018 inter-alia directing the concerned P.S- Ghola to file
enquiry report and also to ensure peaceful possession. Copy of such
petition being no. 94 of 2018 filed on 08-01-2018 before the Ld. Executive
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Magistrate, Barrackpore together with copy of said order dated 08-01-

2018 are annexed hereto and collectively marked ‘G’.

18.In contest to such application the defendant no.1 duly appeared in the
said proceeding on 19-03-2018 and filed an application u/s 144(5) of
Cr.P.C. challenging the said order dated 08-01-2018, copy of the same
without annexures is annexed hereto and marked ‘H’.

19.The applicant states that only after filing of said application u/s 144(5) of
Cr.P.C. , it came to the knowledge of the applicant from the documents
annexed and relied upon by defendant no.1, the series of serious fraud
that it perpetrated upon the applicant with an intent to deceive and garb
the subject property by adopting illegal and unlawful means. Such facts or
rather particulars of fraud are detailed herein below :

a) That by a letter dated 28-06-2012 the defendant no.1 recalled the

loan granted to the applicant but such letter was never served upon
the applicant, copy of the said letter together with envelops with
remarks ‘Left’ are annexed hereto and collectively marked ‘I’.

It is significant to state that such letter was never transmitted

at the permanent address of the applicant as mentioned in the
cause title above which was duly updated by the defendant no.1 in
its record long back in January, 2006.

b) Thereafter a purported notice u/s 13(2) of The Sarfaesi Act , 2002

was issued by the said defendantno.1 on 13-07-2012 which was also
not served upon the applicant. A copy of the said demand notice
dated 13-07-2012 is annexed hereto and marked ‘J’.

It is necessary to mention that in the said application u/s

144(5) the defendants did not annex the whole copy of the demand
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notice , as such the applicant reserves her right to make appropriate

submissions challenging the same after supply of complete copy of
the same. The applicant also craves leave to produce the copy of
said application served upon before the Ld. Magistrate’s Court at
the time of hearing , if necessary.

It is significant to state that such letter was never transmitted

at the permanent address of the applicant as mentioned in the
cause title above which was duly updated by the defendant no.1 in
its record in January, 2006.

It is also pertinent to mention that in the said proceeding u/s

144(5) of Cr. P.C. the defendant no.1 had relied upon the said
purported notice u/s 13(2) of Sarfaesi Act, 2002 wherein they have
made false statement that such notice was received by the applicant
, but did not produce any evidence in support thereto. Being more
specific the defendant failed to produce a single postal receipt w.r.t.
any of the 3 addresses of the applicant to prof its despatch but has
annexed a xerox copy of A/D card without any official seal of India
Post purportedly reflecting the name of the applicant’s mother at
the place of signature of addressee at her parental address. Further
there was no document to show that such demand notice was at all
despatched to other 2 addresses nor any track report relating to the
same.

Neither the service of such demand notice was effected by

affixing a copy of such notice on the outer door or some other
conspicuous part of the subject property.

c) That the said defendant no.1 also published the said fictitious
demand notice in ‘Times of India ‘ and ‘Ei Samay’ on 31-08-2012
under Rule 3(1) of Security Interest (Enforcement) Rules, 2002,
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which the applicant never came across, copies of which are annexed
hereto and collectively marked ‘K’.

d) The said defendant no.1 also relied upon a purported notice u/s
13(4) dated 14-11-2012 which was also not served upon the
applicant and such copy relied upon was neither supported by any
postal receipt and/or track result in prof of despatch and delivery.

It is significant to state that such notice was never

transmitted at the permanent address of the applicant as
mentioned in the cause title above which was duly updated by the
defendant no.1 in its record in January 2006.

Further such notice of possession was neither affixed on the

outer door or some other conspicuous part of the subject property.

More fully to substantiate such false averment the

defendant no.1 made another fallacious statement that such notice
dated 14-11-2012 was replied on 22-11-2012 by the advocate for
the applicant namely, one Mr. Sanjit Kumar Dubey, Advocate,
wherein it was wrongfully stated that such notice dated 14-11-2012
was received by the mother of the applicant. More so to complete
the cycle of false , concocted and manufactured correspondences
such reply dated 22-11-2012 was duly reverted by the defendant
no.1 by its letter dated 27-11-2012. In the said letter dated 27-11-
2012 the defendant addressed it to the said advocate Sanjit Kumar
Dubey with copy to the applicant at abandoned addresses . Further
the defendant no. 1 relied upon the same without any copy of postal
receipt and track report evidencing such letter was at all despatched
or delivered to any of the addressee mentioned therein. Copies of
the said notice dated 14-11-2012, 22-11-2012 and 27-11-2012 are
annexed hereto and collectively marked ‘L’.
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In this regard the applicant specifically states that no

notice dated 14-11-2012 was ever served upon the applicant and
the applicant had never engaged said Mr. Sanjit Kumar Dubey ,
Advocate to reply to the said defendant no.1 on her behalf.
.
e) After such mischievous act, the defendant no.1 made Paper
publication of symbolic possession beyond the prescribed period on
28-11-2012 w.e.f. 26-11-2012 which also came into light during the
said proceeding u/s 144(5) of Cr.P.C., a copy of such paper
publication is annexed herewith and marked ‘M’.

f) Thereafter on 19-09-2014 the said defendant no.1 ultimately filed

an application u/s 14 of Sarfaesi Act, 2002 , being Case no.
390/14/MN before the District Magistrate , N 24 Pargana , copy of
which was also not served upon the applicant as such the matter
was heard in the absence of the applicant and finally decided ex-
parte on 06-03-2017 directing the concerned police authority to
provide assistance to the said defendant no.1 to take over physical
possession of the subject property, copy whereof is annexed hereto
as annexure ‘N’.

20. In the proceeding u/s 144 of C.P.C. after hearing both the parties the Ld.
Executive Magistrate was pleased to dispose of the matter on 18-06-2018
giving liberty to the parties to approach the appropriate forum being the
matter civil in nature, copies of the certified copy of all orders passed in
M.P. Case No. 94 of 2018 are annexed hereto and collectively marked ‘O’.

21. Immediately thereafter the applicant sent letter dated 28-06-2018

through advocate inter-alia stating that the permanent address of the
applicant was recorded before it long back in January, 2006 and further
asking to send all future communications at the address mentioned in the
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cause title above. Copy of the said letter dated 28-06-2018 together with
postal receipt and track report showing delivery are annexed hereto and
collectively marked ‘P’.

22.Thereafter further letter was sent to the defendant no.1 by the applicant
itself on the same contention, copy of the said letter dated 29-08-2018
along with postal receipt is annexed hereto and marked ‘Q’.

But no response to any of these two letters was received by the applicant.

23.Thereafter all on a sudden on 29-07-2019 the applicant received all

together notices for physical possession under Rule 8(1) dated 26-07-2019
and notice under Rule 4(2A) dated 27-07-2019 and notice of sale under
Rule 8(6) dated 27-09-2019, copies of said notices together with envelopes
showing same date and time of despatch are annexed and collectively
marked ‘R’.

Upon receipt of the same the applicant immediately reached the

subject property and found that the defendants have taken over physical
possession of the same by putting pad lock.

GROUNDS

I. FOR THAT the defendants had purportedly issued the demand notice in
violation to rule 3(i) of the Security Interest (Enforcement) Rules, 2002.

II. FOR THAT the purported demand notice was never served upon the
applicant.

III. FOR THAT the copy of notice u/s 13(2) dated 13-07-2012 as annexed
incomplete in application u/s 144(5) of Cr.P.C. , which being the only
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source of knowledge of such document is highly suspicious as the

defendants have intentionally avoided to annex copy of the postal receipt
whereas have annexed xerox copy of the A/D card without any official seal
of India Post purportedly reflecting the name of the applicant’s mother at
the place of signature of addressee at her parental address. Further there
was no document to show that such demand notice was at all despatched
to other 2 addresses nor any track report relating to the same.

IV. FOR THAT the defendants had purportedly issued the notice of symbolic
possession dated 14-11-2012 in complete evasion of Rule 8(1) of the
Security Interest (Enforcement) Rules, 2002.

V. FOR THAT the purported notice for symbolic possession was never served
upon the applicant.

VI. FOR THAT the defendants had caused paper publication of notice of
symbolic possession on 28-11-2012 in violation of Rule 8(2) of the Security
Interest (Enforcement) Rules, 2002

VII. FOR THAT in view of such unabridged violation of the relevant rules and
provisions by the defendants as aforesaid the demand notice, the notice
for symbolic possession and paper publication are all null and void in the
eye of law.

VIII. FOR THAT the order dated 06-03-2017 passed in application filed u/s 14 of
Sarfaesi Act, 2002 , being Case no. 390/14/MN before the District
Magistrate , N 24 Pargana are null and void as the same has been obtained
by misleading and perpetrating fraud upon the Ld. Court.

IX. FOR THAT all subsequent actions taken by the defendants to enforce the
security, specifically the notice for physical possession dated 26-07-2019,
notice under Rule 4(2A) dated 27-07-2019 and notice of sale dated 27-07-
2019 , axiomatically turns bad and non-effective under the special statute
of 2002.
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X. FOR THAT the entire action of the defendant no. 2 are without jurisdiction
and liable to be set aside and/or withdrawn.

XI. FOR THAT the defendant no. 2 issued the sale notice for depletion of the
money from the applicant.

XII. FOR THAT the defendant no. 2 failed to mention any rate of interest in its
sale notice dated 27-07-2019 resulting which the applicant could not be able
to understand the actual amount due and payable to the bank.

XIII. FOR THAT the defendant no. 2 levied excessive amount of claim upon the
applicant and initiated the procedure only to grab the valuable property of
the applicant.

XIV. FOR THAT the defendant no. 2 issued an illegal possession notice dated 14-
11-2012 and 26-07-2019 in terms of an illusory demand notice and hence
failed and neglected to follow the procedure of Rule 8 (1) of the said rules.

XV. FOR THAT the defendant no. 2 published the said illusory demand notice in
the newspaper. Publication of such possession which is totally illegal and
incomplete are also the erroneous and mischief from the part of the
defendant no. 2 and the same is liable to be withdrawn.

XVI. FOR THAT the defendant no. 2 published the said defective and illegal notice
for symbolic possession in the newspaper. Publication of such possession
which is totally illegal and incomplete are also the erroneous and mischief
from the part of the defendant no. 2 and the same is liable to be withdrawn.

XVII. FOR THAT the acts and no. 2 on behalf of the defendant no. 1 are illegal,
arbitrary, perfunctory and the deliberate violation of the statute, hence, the
said act and omissions of the defendant no. 2 initiated on behalf of the
defendant no. 1 liable to be set aside and/or withdrawn.
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XVIII. As stated more fully in the grounds for filing the instant application, the
applicants crave leave to treat these as the integral part hereof to avoid
prolixity and further repetition.

24.Unless the relief (s) as prayed for herein, are granted even in the interim
order the ad-interim forms, the applicant would be deprived of her right of
property as guaranteed under Article 300A of the Constitution of India.

25.The applicant has very strong privacy case on record and on facts. The acts
of the defendants are illegal and wholly without jurisdiction for which
immediate interim reliefs should be granted without putting the applicant to
terms.

26.The preponderance of balance of convenience is absolutely in favour of the

applicant, since the above-mentioned demand notice, possession notice and
the paper publications and all other subsequent actions including notice of
physical possession and sale notice issued by the defendant no.1 or the
intended process of sale by public auction to be taken up by the defendant
no.1 are totally illegal , null and void and unless appropriate restraint orders
are passed, the defendant bank may proceed to sell out the property which
can frustrate the entire defence of the applicant.

27.The applicant crave reference to the provisions of the statute aforesaid and
crave leave to make appropriate submission of law that the time of hearing.

28. That it is apparent on record that the defendant no.1 has acted with all its
high -handedness and arbitrariness by adopting dishonest and illegal
means to make wrongful gain by causing wrongful loss to the applicant.

29. It is submitted that the acts , deeds and things done by the defendant no.1
being not in conformity with the real intention of the legislation and
devoid of the provisions and rules made there under, are completely
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invalid and the same are to be declared as non-binding upon the applicant
in any manner whatsoever and the defendant no.1 be directed not to take
any action in pursuance of notice of sale dated 27-07-2019 under
provisions of the Sarfaesi Act clinging upon said purported demand notice
dated 13-07-2012, possession notice dated 14-11-2012 and order dated
06-03-2017 passed by the Ld. DM, N 24 Pargana and notice for physical
possession dated 27-07-2019.

30. The applicant submits that unless said demand notice dated 13-07-2012,
possession notice dated 14-11-2012 and order dated 06-03-2017 passed
by the Ld. DM, N 24 Pargana and notice for physical possession and notice
for sale both dated 27-07-2019 all are declared as null and void and the
defendant no.1 is restrained by an appropriate order not to sale and/or
take any adverse steps against the subject property without complying the
provisions of relevant laws and rules framed thereunder , the applicant
will suffer serious prejudice and irreparable loss which can’t be quantified
and will attract multiplicity of proceedings.

31.The applicant submits that the applicant is a victim of the swindling deeds
of the defendant no.1 as mentioned herein above as well as destiny.

32. That this application is made bonafide and for the ends of justice.

6. RELIEF(S) SOUGHT :
In view of the facts mentioned in paragraph 5 above, the applicant prays
for the following reliefs :
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i. To declare that the demand notice dated 13-07-2012 under section 13(2)
of the Sarfaesi Act, 2002 as null and void as the same was never served
upon and/or transmitted at the permanent address of applicant updated
with the defendant bank neither the said notice was affixed on the outer
door or any conspicuous space of the subject property as per Rule 3 of
Security Interest ( Enforcement) Rules, 2002.

ii. To declare that the act of issuance of possession notice dated 14-11-2012
is also invalid as the same was never served upon and/or transmitted at
the permanent address of applicant updated with the defendant bank
neither the said notice was affixed on the outer door or any conspicuous
space of the subject property as per Rule 8(1) of Security Interest (
Enforcement) Rules, 2002 and is wholly contrary to the provisions of the
Sarfaesi Act, 2002 and the same is non-binding upon the applicant in any
form and thus liable to be cancelled.

iii. To declare that the publication 28-11-2012 under Rule 8(3) Security
Interest (Enforcement) Rules, 2002 as null and void as the same was
published beyond the prescribed period.

iv. To declare the order dated 06-03-2017 passed by the Ld. DM, N 24 Pargana
in Case No. 390/14/MN as null and void as the same has been obtained by
misleading and perpetrating fraud upon the Ld. Court by the defendants.

v. To declare the notice of physical possession dated 26-07-2019 as null and

void being action taken in continuity to such illusory and purported
demand notice and notice of symbolic possession and paper publication.

vi. To declare the notice under Rule 4(2A) dated 27-07-2019 as null and void
being action taken in continuity to such purported demand notice and
notice of symbolic possession and paper publication.
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vii. To declare the notice of sale dated 27-07-2019 as null and void being
action taken in continuity to such illusory and purported demand notice
and notice of symbolic possession and paper publication.

viii. To grant all costs and expenses of this proceedings.

ix. Any other direction/s, order/s and relief/s to which the applicant is
entitled under the law, equity and good conscience and for the neds of
justice.

7. INTERIM ORDER PRAYED FOR :

Pending final decision on the application, the applicant seeks issue of the
following interim orders :

i. To stay notice of sale dated 27-07-2019 till the disposal of the application
along with order restraining the defendants and its men , agents and
servants not to deal with the subject property or to create any third party
interest thereto and therein in any form whatsoever till the disposal of the
application and if such prayer for interim relief are not granted
immediately then there is every apprehension that the defendant bank
with all haste will create third party interest in or upon the subject
property prejudicially affecting the right, title and interest of the applicant
pertaining to the subject property.

ii. To grant an order of stay restraining the defendant bank and its men,
agents and servants from taking any further recourse in respect of the
subject property on the basis of said order dated 06-03-2017 passed by
the Ld. DM, N 24 Pargana in Case No. 390/14/MN till the disposal of the
application.
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iii. To stay demand notice dated 13-07-2012 till the disposal of the
application.

iv. To stay notice of symbolic possession dated 14-11-2012 till the disposal of
the application.

v. To stay notice of physical possession dated 26-07-2019 till the disposal of

the application.

8. MATTER NOT PENDING WITH ANY OTHER COURT :

The applicant further declares that the matter regarding which this
application has been made is not pending before any court of law or any
other authority or any other bench of the Tribunal.

9. PARTICULARS OF BANK DRAFT :

i. Name of the bank on which drawn : BOI
ii. Demand draft no : 404252
iii. Date : 13-08-2019

10. DETAILS OF INDEX :

An index in duplicate containing the details of the documents to be relied
upon is enclosed.
 23

11. LIST OF ENCLOSURES :

Annexure Particulars of document Pg no.

A Copy of agreement for sale dated 02-12-2003 26A - 31

along with the memo of consideration
B Copy of loan proposal form and sanction letter 32 - 34
dated 24-11-2003
C Copy of the loan agreement dated 05-02-2004 35 – 47
along with memo of cheques
D Copies of money receipts issued by the concerned 48 - 49
developer

E Copy of repayment details issued by the defendant 50

bank for the year ending 31-03-2005
F Copies of communications sent by the defendant 51 - 53
via Indian Postal Service at the address mentioned
in the cause title above

F1 Copy of letter of sanction dated 30-12-2005 by 53A – 53C

IHFC along with memo of cheques for Rs. 4 Lac in
favour of the developer
F2 Copy of IGR receipt 53D
G Copy of petition being no. 94 of 2018 filed before 54 – 60
the Ld. Executive Magistrate, Barrackpore together
with copy of order dated 08-01-2018

H Copy of application u/s 144(5) of Cr.P.C. 61 – 67

challenging the order dated 08-01-2018
I Copy of letter dated 28-06-2012 recalling the said 68 – 73
loan together with envelops
 24

J Copy of demand notice dated 13-07-2012 issued 74 – 76

u/s 13(2) of Sarfaesi Act, 2002
K Copy of paper publication of demand notice in 77 – 78B
‘Times of India ‘ and ‘Ei Samay’ on 31-08-2012
L Copies of notice dated 14-11-2012 , 22-11-2012 79 – 83
and 27-11-2012
M Copy of paper publication dated 28-11-2012 for 84 – 85
symbolic possession
N Copy of order dated 06-03-2018 passed in 86
application u/s 14 of Sarfaesi Act, 2002 , being Case
no. 390/14/MN before the District Magistrate , N
24 Pargana
O Copies of the certified copy of all orders passed in 87 – 90
M.P. Case No. 94 of 2018

P Copy of letter dated 28-06-2018 together with 91 – 93

postal receipt and track report

Q Copy of letter dated 29-08-2018 along with postal 94 – 95

receipt

R Copies of notices for physical possession and 96 - 110

notice under Rule 4(2A) dated 27-07-2019 and
notice of sale dated 27-09-2019 with envelopes
 25

AFFIDAVIT

I, Shilpi Chakraborty Ghosh, wife of Sri Gopal Ghosh, permanently residing at

Udayachal Abasan, Flat no. F, 4th Floor, S. M. Bose Road, Near 5 no. Railway Gate
Agarpara, Kolkata – 700109 , do hereby solemnly affirm and say as follows :

1. That I am the applicant in the instant application and well acquainted with
the facts and circumstances of the instant case
2. That the statements contained in paragraph 1 to 5 are true to my
knowledge and rest are the humble submissions before this Ld. Tribunal.
3. That all the statement made above are true to best of my knowledge and
belief.
 26

BEFORE THE DEBTS RECOVERY TRIBUNAL III , KOLKATA

SARFAESI APPLICATION NO. OF 2019

In the matter of :

SHILPI CHAKRABORTY GHOSH

..…. Applicant

-VS-

HDFC BANK LTD. & ANR.

…….. Defendants

SARFAESI APPLIACTION

Advocate-on -Record
Debisree Adhikary
C/o. D & D Law and Tax Firm
14 B, A.C.Banerjee Road,
Kolkata – 700057
E-mail :
ddlawtaxfirm@gmail.com
Contact : 9804214281