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Nalini Bala Cold Storage Private Limited and Others. V/S United Bank of India and Others.

    I.A. 795 of 2019 and S.A. 49 of 2018
    Decided On, 03 January 2020
    At, Debts Recovery Tribunal Kolkata
    For Petitioner: Nimesh Mishra and D. Mukherjee, Advocates And For Respondents: D. Chakraborty and M. Majumdar, Advocates.

Judgment Text

1. I.A. 795 of 2019 has been filed by the Sarfaesi Applicants challenging the sale notice dated 31.10.2019 by which the sale was fixed on 16.11.2019.

2. Affidavit on behalf of respondents No. 1 and 2 has been filed.

3. Mr. Nimesh Mishra, Ld. Adv. for the applicants has assailed the sale notice mainly on three grounds, viz. that clear 15 days notice has not been given inasmuch as the notice was served on the applicants on 11.11.2019 on which date they received it. Thus, there was only 5 days gap between the date of receipt and the date of sale which was on 16.11.2019. His other contention is that the reserve price has been fixed in a composite manner i.e. by combining the land and building together with the plant and machineries. In other words, immovable and movable properties have been joined together which is against the rules. His next contention is that the price has been fixed below the valuation price. He has further contended that pendency of the SA has not been mentioned in the sale notice nor demarcation of the property has been indicated. Therefore, the sale notice is bad. In support of his contention, he has relied on a decision of the Hon'ble Andhra Pradesh High Court in Writ Petition No. 122280 of 2014 decided on 22.7.2015 in the case of K. Chandrasekhar -vs- Govt. of India & Others wherein it is held in para 14 that notifying the pendency of SA before the DRT in the e-auction notice is absolutely indispensable for the benefit of the auction purchaser. For the other contention he placed reliance on the decision of the DRAT, Mumbai reported in 2014(1) DRTC 585 in the case of Soma Paper & Industries Ltd. -vs- Bank of India.

4. Mr. D. Chakraborty, Ld. Counsel for the respondent bank submits that It Is not correct that 15 days notice was not given. He produced documents to show that Rule 8(6) was sent by post on 24.10.2019 and it was received by the applicants on 26.10.2019 as will be evident from the postal track report. What the applicant received on 11.11.2019 is the notice that was published in the newspaper. In the reply affidavit he has enclosed the postal receipts to substantiate his claim. His further contention is that the respondent bank wants to sale the cold storage as a whole and not in piecemeal like land and building separately and plant and machineries separately. He further clarifies as per circular of the Bank when valuation price is not available, 10% reduction is permissible which has been done. Reliance has been placed on the Recovery Policy for the year 2019-20 issued by the United Bank of India dt. 6th August 2019.

5. I have considered the rival contentions carefully and have gone through the documents produced on record.

6. It may be pertinent to note here that the applicants have filed the SA on 7th March 2018 mainly challenging the sale notice dated 17.02.2018 as published in the newspapers on 23.2.2018 in respect of cold storage unit including land, building, plant & machineries, store, office & etc. (which are the subject matter of present IA) although they have also challenged the Sec. 13(2) notice dt. 18.2.2014 issued under the SARFAESI Act as well as possession notice under Sec. 13(4) issued on 31.7.2014.

7. Subsequently, an IA being IA 168 of 2018 was filed praying for stay on the aforesaid sale notice as also the possession notice dt. 31.7.2014. This Tribunal vide order dt. 9.3.2018 observed as follows:-

"The Tribunal notes that vide order dated 27.07.2017 in SA 1058/2014, already disposed of, the Tribunal allowed the Applicants vide order dated 16.06.2017 to bring intending buyer for sale of the properties and the Applicants were also directed to pay Rs. 50 lakhs. The Tribunal has recorded in the order dated 27.07.2017 the applicants failed either to bring intending buyer or to pay the amount of Rs. 50.00 lakhs. Today also the applicants are silent about payment of the huge amount of dues of the Respondent Bank. The applicants are agitating over the SARFAESI measures since 2014 without making any payment and showing any bona fide intention to repay the dues. It appears that the applicants are not interested to repay the dues rather they are filing one SA after another to obstruct the recovery measure taken by the Respondent Bank to recover their dues of substantial amount.

The Tribunal is not inclined to stay the sale notice dated 23.02.2018, sale fixed on 12.03.2018. However, the respondent bank is directed not to confirm the sale till next date of hearing."

8. Thereafter another IA being IA 686 of 2018 was filed challenging the sale notice dt 17.09.2018 together with publication in the newspapers dt. 24.09.2018 (sale scheduled to be held on 25.10.2018).

9. Vide order dt. 22.10.2018, the Tribunal observed as under:-

"The applicants have filed the present SA being No. 49/2018 on 07.03.2018 taking limitation/cause of action from the sale notice dated 23.02.2018 (date of sale 12.03.2018). The sale notice dated 23.02.2018 has become infructuous for lack of bidder vide order dt. 11.4.2018. The applicants have filed the present IA being IA 686/2018 challenging the sale notice dated 17.09.2018 in the present SA being No. 49/2018, taking same cause of action/limitation (sale notice dated 23.02.2018).

There is an issue of maintainability of the SA since there is no existence of cause of action/limitation taken by the Applications in filing the present SA being No. 49/2018 on 07.03.2018........"

10. A further IA being IA 781 of 2018 was filed challenging sale noticed dt. 22.11.2018 published on 28.11.2018 (sale scheduled to be held on 24.12.2018). That sale notice was quashed by the Tribunal vide its order dt. 13.12.2018 as it was not in format as per appendix IV-A in accordance with amended provision.

11. Yet another IA being IA 498 of 2019 was filed challenging sale notice dt. 16.07.2019 published on 25.07.2019 and the sale to be held on 9.8.2019. By order dt. 9.8.2019, this IA was disposed of as being infructuous as no bid was received in respect of the impugned sale notice dt. 16.07.2019.

12. Now the present IA being IA 795 of 2019 has been filed challenging the sale notice dt. 31.10.2019 by which the sale was fixed on 16.11.2019.

13. From the past records it is quite clear that this Tribunal vide its order dt. 22.10.2018 has already took note about the maintainability of the SA itself as the relief sought for in the SA has already been achieved when the sale notice became infructuous due to non-availability of bidders. Accordingly, the SA ought to have been disposed of at that time. But neither party brought to the notice of this Tribunal this order and the applicants have been filing one after another IAs challenging sale notices continuously remaining silent about the non-maintainability of the SA itself and thus obstructing the respondent bank from recovering their debts by selling the property.

14. Coming to the present I.A., I find substance in the contention of Mr. Chakraborty, Ld. Counsel for the respondent bank. If the cold storage is sold in piecemeal, proper price may not be available. If, however, the cold storage is sold as a whole, there may be purchaser who wants to purchase the entire cold storage in order to run cold storage business. The contention of Mr. Mishra in this regard that separate prices should have been fixed for plants and machineries and land and buildings, in my opinion, lacks logic.

15. So far as the time gap of only 5 days as contended by Mr. Mishra is also not acceptable as the respondents delivered the notice by post on 24.10.2019 which was received on 26.10.2019 and not on 11.11.2019 as stated.

16. So far as reduction in valuation is concerned, under Rule 8(5) valuation is to be obtained by the authorized officer

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from an approved valuer in consultation with the secured creditor and fix the reserve price. If no bidder was available on the earlier reserve price, and for getting suitable bidders, if the secured creditor reduce the reserve price, the borrower cannot raise any objection, particularly, when the borrower, in this case the applicants themselves failed to fetch a buyer in terms of the order of the Tribunal. 17. In view of the above, I.A. 795 of 2019 stands dismissed. 18. As already pointed out the cause of action based on which the S.A. 49 of 2018 was filed, is no longer there, and thus, the S.A., being S.A. 49 of 2018, has become infructuous and accordingly stands disposed of. No costs. 19. The date fixed for hearing of the S.A. on 6th January, 2020 stands cancelled. 20. Order be uploaded in the Tribunal's Website.