At, Debts Recovery Appealate Tribunal at Allahabad
By, THE HONORABLE JUSTICE: VINAY GOEL
By, PRESIDING OFFICER
For Petitioner: Rajnish Keserwani, Ld. Counsel And For Respondents: Sunil Bhalla, Ld. Counsel
1. At the query of this Tribunal that whether applicants are ready to liquidate the dues of the bank in entirety or in part, counsel for the applicant submitted that applicants have no money to pay the dues of the bank. He further volunteered that applicant is not in position to pay the dues of the bank in one stroke.
2. This tribunal further put query whether applicants have any suggestions or compromise proposal to pay the dues of the bank in installments. Counsel for the applicants submitted that applicants are in a position to pay the dues of the bank.
3. While arguing case on merits Ld. counsel for the applicant submitted as under:-
(i) That the demand notice is defective as after issuance of demand notice dt. 21.11.2016 this Tribunal decided original application filed by the bank on 11.1.2017 and after decision of the O.A. bank was required to issue demand notice in terms of RC issued by the Tribunal as R.C. was issued before expiry of 60 days statutory period.
(ii) That the possession notice is also defective as in the possession notice bank has mentioned amount claimed in the demand notice whereas bank should have claimed amount of debt determined in original application filed under section 19 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993.
(iii) That applicant has raised this issue in paragraph 5.7 to 5.10 of the S.A. and in reply thereto bank has replied that Form-I/demand notice issued Under section 19 cannot put clog on the inherent power of bank to recover its dues under securitization Act.
(iv) That there is non compliance of Rule 8(1).
(v) That there is also violation of Rule 8(2) and the bank has failed to publish possession notice in widely circulated newspapers.
(vi) That Bank has published possession notice in Ahmedabad and no publication was made at Kanpur. At the query of this Tribunal counsel for the applicants fairly conceded that properties are situated at Ahmedabad.
(vii) That the bank has taken possession of movables without following due procedure prescribed in Rule 4 of Security Interest (Enforcement) Rules, 2002. As such the possession notice is liable to be defective and there is no due compliance of Rule 8(1) also.
(viii) That no possession notice has been served upon the applicants and referred page 38 of the S.A. and submitted that bank has informed applicants about symbolic possession vide letter dt. 8.5.2017.
4. Counsel for the respondent bank submitted as under:-
(i) That as O.A. has been allowed after issuance of DEMAND NOTICE so decision of O.A. has not material impact on the demand notice and whatever demand has been raised is as per banking norms.
(ii) That bank has issued possession notice in continuation of demand notice and there is no irregularity in the same.
(iii) That bank has published possession notice in widely circulated newspaper where properties situated as per requirement of Rule 8(2) one in English and one in Gujrati i.e. local language.
(iv) That bank has annexed said publication at page 36 and 37 of the counter affidavit and bank has also placed on record photographs evidencing affixation of possession notice at page 32 to
Please Login To View The Full Judgment!
35 of the written objection. 5. Counsel for the bank submitted that the notice annexed at page 38 of the S.A. is a subsequent intimation in addition to compliance of Rule 8(1) and he sought short adjournment to place on record postal receipt of the notices sent in compliance of Rule 8(1). 6. At his request, the case is adjourned for half an hour.