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Judgment
A. Arumughaswamy, J
Today the matter has been fixed for hearing. From the perusal of the records it is seen that M.A. No. 361/2015, i.e. application for stay, and the M.A. No. 362/2015, i.e. application for waiver of deposit, are yet to be disposed of. The learned Counsel for the appellants contended that the appellant have very good case on merit, therefore, the learned Counsel requested that the main appeal be taken up for hearing along with M.A. No. 362/2015 i.e. application for waiver of deposit. In view of above, the main appeal is taken up for hearing along with M.A. No. 362/2015, i.e. application for waiver of deposit.
The appellant has filed the present appeal against the order dated 12.2.2015 whereby the Securitization Application (S.A.) No. 157 of 2011 filed by them before the Debts Recovery Tribunal (DRT), Pune, was dismissed. The appellants have filed the aforesaid S.A. on various grounds. One of such grounds is that the respondent Bank has issued legal notice dated 22.3.2004 contending therein that the respondent Bank had advanced Term Loan of Rs. 40 lacs to the appellants for their hotel business, but in the notice dated 4.8.2006 under Section 13(2) of the SARFAESI Act issued to the appellants, it is stated that the appellants have availed Cash Credit Facility of Rs. 50 lacs. It was contended that the appellants had submitted reply dated 22.8.2006 for this notice and the Banker has also issued rejoinder dated 9.11.2006 to that notice. But from the exchange of notices one can understand that in the notice issued by the Bank the amount has been mentioned wrongly i.e. instead Rs. 40 lacs it has been mentioned as Rs. 50 lacs and instead of Term Loan it has been mentioned as Cash Credit Facility. Therefore, it is very clear that the notice is not in accordance with law.
The contention of the learned Counsel for the appellants is that the Bank is not entitled to recover any amount from them as the notice under Section 13(2) of the SARFAESI Act has not been issued to him in accordance with law and, therefore, the question of taking subsequent measures under the SARFAESI Act also does not arise.
The learned Counsel for the respondent had contended that the appellants have been sanctioned Term Loan of Rs. 40 lacs is not in dispute but by mistake and oversight the Bank has mentioned the same as Cash Credit Facility and the amount has mentioned as Rs. 50 lacs instead of Rs. 40 lacs. However, this Tribunal has to see that the appellants have not made any payment from the year 2003 onwards. The Bank has issued notice to the appellants once again in the year 2004. But, at the same time, this Tribunal notices that the demand notice has not been issued as per Section 13(2) of the SARFAESI Act. This Tribunal is not in a position to pass any order since the notice under Section 13(2) of the SARFAESI Act has not been issued in accordance with law.
From the perusal of the records, it is seen that even though amount has been outstanding and the principal amount has been clearly mentioned but the caption of the account has been changed. The loan sanctioned to the appellants is in the form of Term Loan, therefore, the notice is not accordance with law. Hence, this Tribunal has no alternative than to allow this appeal. But, this order shall not restrict the Bank from issuing another demand notice as per the provisions of the law. It is also to be seen that the outstanding against the appellants would be approximately Rs. 1 Crores, therefore, the appellant directed to deposit Rs. 20 lacs (Rupees Twenty lacs only) with the respondent Bank within three months from the date of this order. The appeal is allowed in terms of the above order. In the event of default, the appeal shall be dismissed confirming the order 12.02.2015 passed by the DRT, Pune, in S.A. No. 157 of 2011.