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Judgment
Anil Kumar Srivastava, Chairperson
Heard the Learned Counsel for the parties and perused the record. Opposition filed by the Respondent is taken on record.
Instant Appeal has arisen against an order dated 17.09.2023 passed by Learned DRT Visakhapatnam allowing the S.A. No. 287 of 2021.
From the pleadings of the parties it appears that a loan of Rs. Five crore was sanctioned to the Respondents herein (SARFAESI Applicants) which was classified as NPA. Notice under Section 13(2) of the SARFAESI Act was issued by the secured creditor on 18.11.2020 for an amount of Rs.5,31,16,846.82. Possession notice was also issued on 23.04.2021. SARFAESI Application under Section 17 of the SARFAESI Act was filed by the Respondents herein challenging the action taken by the secured creditor under Section 13(4) of the SARFAESI Act as well as consequent actions taken by the secured creditor. It further appears from the pleadings that an order of the Chief Judicial Magistrate Eluru under Section 14 of the SARFAESI Act was passed on 24.01.2023.
Secured Creditor filed the opposition to the SARFAESI Application with the assertions that notice under Section 13(2) of the SARFAESI Act was duly served upon the Respondents. Symbolic possession was taken on 26.08.2021 which was also duly served and published in two newspapers on 31.08.2021. S.A. No. 157 of 2023 was also filed by the tenant wherein conditional order was passed which was not complied. Physical possession was taken on 05.06.2023. After hearing the Learned Counsel for the parties, Learned DRT allowed the SARFAESI Application with an option to the secured creditor to initiate fresh SARFAESI proceedings.
Feeling aggrieved, secured creditor preferred the appeal.
I have heard the Learned Counsel for the parties and perused the record.
At the very outset, Learned Counsel for the Appellant would submit that pending appeal an I.A. No. 475 of 2023 is filed by the Appellant under order 41 Rule 27 of the Code of Civil Procedure for filing additional evidence pending appeal. Learned Counsel for the Appellant would submit that the Learned DRT has passed the impugned judgment on the ground that the documents i.e. notice under Section 13(2) of the SARFAESI Act, Possession Notice, affixation of possession notice, newspaper publication are not filed by the secured creditor. It is submitted that all the compliances were made but the documents could not be filed as the same could not be filed despite due diligence.
Prayer is opposed by the Learned Counsel for the Respondents.
Having considered the submissions, I found the ground to be sufficient. Accordingly, application under Order 41 Rule 27 of the Code of Civil Procedure is allowed and the documents filed by the Appellant are taken on record.
As would appear from the impugned judgment Learned DRT has recorded a finding that the notice under Section 13(2) of the SARFAESI Act, Notice under section 13(4) of the SARFAESI Act, affixation thereon and service of the same are not brought on record by the secured creditor. Since the Appellant has been permitted to file the same pending appeal, hence it would be appropriate that an opportunity of rebuttal should be granted to the Respondents. Further, opportunity of hearing should also be granted to the parties before the Learned DRT.
Having considered the submissions and on the basis of discussion made above, I am of the considered view that the matter be remanded back to the Learned DRT to decide it afresh after considering the evidence filed under Order 41 Rule 27 of Code of Civil Procedure. Opportunity of filing the documents in rebuttal be also granted to the Respondent herein.
ORDER
Appeal is Allowed. Impugned order dated 17th September, 2023 passed by Learned DRT Visakhapatnam in S.A. No. 287 of 2021 is set aside. Matter is remanded back to the Learned DRT to decide it afresh after considering the documents filed under Order 41 Rule 27 of Code of Civil Procedure. Opportunity of filing the documents in rebuttal may be granted to the SARFAESI Applicants. After hearing the Learned Counsel for the parties, Learned DRT should decide the matter afresh in accordance with law. Party should appear before the Learned DRT on 26th June, 2024.
No Order as to costs.
File be consigned to Record Room.
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 pronounced by me in the open Court today i.e.on 15th April, 2024.