IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
( Appeal No. 64 of 2023)
(Arising out of SA No. 451 of 2022 in DRT-1, Kolkata)
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA
CHAIRPERSON
1. Chief Manager State Bank of India, Stressed Assets Recovery
Branch, Bardhaman, Ulhas Gate, Gate No. 1, P.O. Joteram,
Burdwan -73104.
2. Authorised Officer, State Bank of India, Stressed Assets Recovery
Branch, Bardhaman, Ulhas Gate, Gate No. 1, P.O. Joteram,
Burdwan -73104.
3. State Bank of India, Stressed Assets Recovery Branch,
Bardhaman, Ulhas Gate, Gate No. 1, P.O. Joteram, Burdwan -
73104.
…Appellants
-Versus-
1. Shyam Sundar Gourisaria, Kamrarmath, District – Bankura, West Bengal -
722101
… Respondents
Counsel for the parties Mr. Anirban Pramanik,
Learned Counsel for the
Appellant
Mr. Prasenjit Pal,
Learned Counsel for
the Respondent.
JUDGMENT : On 31st January, 2024
THE APPELLATE TRIBUNAL :
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Instant Appeal has arisen against an order passed by
Debts Recovery Tribunal -2 Kolkata dated 08.02.2023 in SA.
No. 451 of 2022 Sri Shyam Sundar Gourisaria versus Chief
Manager State Bank of India & ors whereby SARFAESI
Application was allowed and the forfeiture made by the Bank
was quashed and the Bank was directed to refund the
amount of Rs. 12.50 lacs with an interest @ 6% per annum.
2. There are certain admitted facts in the matter.
3. Appellant Bank is a secured creditor. Sale notice was
published in newspaper on 29.04.2022. It would not be out
of place to mention here that the symbolic possession of the
property was taken on 31.05.2022. On 23.05.2022
inspection of the same was allowed, auction was conducted
on 31.05.2022 with a reserve price of Rs. 48 lacs.
Respondent herein participated in the auction with a final bid
of Rs. 50 lacs who complied with the legal provisions and
deposited 25% of the bid amount of Rs. 50.00 lacs on
01.06.2022. It appears that he applied for extension of
time on 28.06.2022 which was declined by the Appellant
Bank on 01.07.2022.
4. Subsequently, the bid amount deposited by the
Respondent was forfeited by the Bank which was challenged
by the Respondent/ SARFAESI Applicant by filing the
application under Section 17 of the SARFAESI Act.
5. Learned DRT after hearing the Learned Counsel for the
parties, arrived at a conclusion that the pendency of SA No.
127 of 2019 was not disclosed at all in the sale notice or
prior to the auction. Accordingly, the forfeiture made by the
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Bank is not in accordance with law. Accordingly, SARFAESI
application was allowed.
6. Learned Counsel for the Appellant would submit that
the impugned judgement is bad in law. It is submitted that
the Respondent was having full knowledge of the S.A. No.
127 of 2019. No interim order was passed by the DRT in the
said SARFAESI Application. Bank was within its right to
make a forfeiture of the amount if the conditions were not
complied by the highest bidder and the amount was not
deposited within the stipulated time or extended time.
7. Per contra, Learned Counsel for the Respondent
submits that it was well within the knowledge of the
Appellant Bank that SA No. 127 of 2019 was filed and was
pending. But the fact was not disclosed on the sale notice.
This fact was never disclosed to the Respondent prior to the
auction sale. Hence, forfeiture could not be made by the
Bank.
8. The SARFAESI application No. 127 of 2019 was filed on
26.04.2019 before the Learned DRT by M/s Bulu View
Poultry and Agrotech (P) Ltd. & Anr. Vs. State Bank of India
& Anr Stressed Asset Recovery Branch Bardhaman wherein
the secured asset was mentioned at Serial No. 3 which is as
under:
EM on 2 storeyed residential building standing in the name
of Gobinda Prasad Kundu at Karnar math (Gouri Bhavan) at
Natunganj, Ward No. -5, Bankura Municipality Holding No.
230/13, J.L. No. 205, Kh No. 1086, Plot No. 346(p),
measuring 6.80 dec vide Deed No. 9602 of 1984. Property is
exclusive mortgage for financed to Bulu View Poultry &
Agrotech Pvt. Ltd.
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9. It is not in dispute the same property was in dispute in
the present litigation which finds place at serial No. 2 in the
sale notice.
Sl. No. 02.
In connection with recovery of Rs.29,82,041.00 as on
02.11.2018 “further interest thereon other expenses & coal
as per Demand Notice dated 02.11.2018 due to the secured
creditor from Vivekananda Kundu, Guarantors: Gobinda
Prasad Kundu.
The Reserved price will be Rs.40.00 lakhs, and the
Earnest Money Deposit (EMO) will be Rs. 4.80 lakh.
(Description of the immovable property with known
encumbrances, if any)
Double storeyed residential building standing in the
name of Gobinda Prasad Kundu at Kumar Math (Gouri
Bhavan) at Nutanganj, Ward No. 5, Bankura Municipality,
Holding No. 230/13, J.L. No. 205, Khatian No. 1066, Plot No.
348(P), measuring 6.80 decimal vide Deed No. 9602 of
1984. (Property under Symbolic Possession).
10. Hence, it is established that the secured asset was in
dispute in SA No. 127 of 2019.
11. It is also not in dispute that the pendency of the
SARFAESI Application No. 127 of 2019 was not disclosed in
the sale notice.
12. An order was passed by the Learned DRT -2 Kolkata
on 21.06.2022 in I.A No. 776 of 2022 and I.A. No. 777 of
2022 arising out of SA No. 127 of 2019 wherein a
categorical statement was made by the Learned Counsel for
the Bank that no sale was conducted on 31.05.2022.
Accordingly, the instant notice has become infructuous and
IA was disposed of by the Learned DRT. This itself is a
wrong submission made by the Learned Counsel for the
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Bank because sale in this matter was conducted on
31.05.2022. It means that the Bank was within its
knowledge that the S.A. No. 127 of 2019 was pending on
the sale notice i.e. on 29.04.2022. Same was filed on
26.04.2019. Hence, it was an incumbrance upon the
scheduled property which should have been disclosed by the
Bank in the sale notice. But the same was not done.
13. Learned Counsel for the Appellant has placed reliance
upon judgment of the Hon’ble Apex Court in Authorised
Officer, State Bank of India Vs C. Natarajan (Civil Appeal No.
2545 of 2023 (Arising out of SLP (C) No. 14896/2018
decided on 10.04.2023) which does not apply to the facts of
the present case.
14. Having considered the submission and perusing the
record, I am of the view that non mentioning of pendency
of SA No. 127 of 2019 in the sale notice itself was erroneous
which should have been done by the Bank. Accordingly, all
the actions consequent thereto forfeiting the amount
deposited by the Respondent is against law. Accordingly, I
do not find any illegality in the impugned order.
Appeal lacks merit and is liable to be dismissed.
ORDER
Appeal is dismissed. Impugned order dated
08.02.2023 passed by Learned DRT-2 Kolkata is confirmed.
No Order as to costs.
File be consigned to Record Room.
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Copy of the order be supplied to Appellant and the
Respondents and a copy be also forwarded to the concerned
DRT.
Copy of the Judgment/ Final Order be uploaded in the
Tribunal’s Website.
Order signed and pronounced by me in the open Court.
(Anil Kumar Srivastava,J)
Chairperson
Dated: 31st January, 2024
18/tp
