Shri Arun Narendra Rudkar vs State Bank Of India

S. Ravi Kumar, Chairperson

Heard Advocates for parties through Video Conference.

Heard both sides.

This Appeal is preferred against order dated 23.08.2011 in S.A. 58 of 2010 on the file of DRT, Nagpur. Brief facts leading to this Appeal are as follows.

Appellant herein filed Securitization Application (S.A.) 58 of 2010 challenging action of Respondent Bank initiated under the provisions of the Securitisadon and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act) - contending inter alia that Respondent issued Notice under Section 13 (2) with mala fide intention, without giving break-up figures for the amount arrived at Rs.7,55,007/-; that Appellant replied to the 13 (2) Notice raising several objections but Respondent has not filed any reply to the objections thereby not complied provisions of Section 13(A) of the SARFAESI Act. Appellant also contended that he submitted proposal for O.T.S. but Bank intentionally not considered it. Respondent filed reply disputing the petition averments and Tribunal below, after hearing both sides, dismissed the application, aggrieved by which present Appeal is preferred.

Advocate for Appellant referred to the dates of events for which there is no dispute. Advocate for Appellant submitted that Bank rejected O.T.S. proposal twice, but during pendency of this Appeal i.e. after making statutory deposit, compromise is entered between the parties and a separate petition is filed to that effect. When it was put to Advocate for Appellant, whether a decree can be passed in terms of compromise in a Securitisation Proceedings, learned Advocate fairly stated that there is no provision in die SARFAESI Act to issue Recovery Certificate, therefore, no decree can be passed. Admittedly, no compromise is recorded by any Competent Court or Tribunal, therefore, that petition is no way helpful to Appellant, particularly when a decree cannot be passed on such petition. Advocate for Appellant submitted that a specific objection is raised as to non-compliance of provisions 13(2) and 13(A) of the SARFAESI Act, but Tribunal below except recording them did not give any finding, on that ground itself Appeal has to be allowed. In answer Advocate for Bank submitted that detailed Written Submissions are filed and orders may be passed by considering Written Submissions.

I have perused material papers including impugned order and Written Submissions filed on behalf of Bank. It is specific case of Appellant that no break-up figures are given to the claim made in 13(2) Notice. Ld. P.O. recorded this contention in the impugned order, but he did not give any finding whether that objection is sustainable or not. Advocate for Appellant drawn my attention to 13(2) Notice which only indicates figure of Rs.7,55,007/-. In the Written Arguments Bank contended that Appellant having admitted that amount cannot raise objections in respect of calculation. As seen from the material papers, there is no specific admission from Appellant, only request he made is that he is ready to settle the matter, that does not amount to admitting the claim because he put in a rider that without prejudice to his rights, he is willing to settle the matter. Other objection of Appellant is that Respondent has not complied Section 13(A) of the SARFAESI Act. For this objection also no specific finding is given in the impugned order. Advocate for Appellant mainly harped on these two points and made submissions touching these two aspects. In the Written Arguments of Bank, except making a general denial, no specific answer is given to these two objections. As the Tribunal below has not given any specific findings on these two issues, if any finding is given in the Appeal on these two issues, aggrieved party may loose statutory right of Appeal. Taking that aspect in to consideration, I am of the view that it is a fit case to remit back to Tribunal below to answer the specific objections taken in the pleadings by recording findings. I am conscious of the fact that Appeal itself is 10 years old, still I am remanding the matter only to see aggrieved party shall not loose a statutory right. Further possession of property is with Appellant as per interim orders of Tribunal below.

So on a overall consideration of submissions of both sides, material papers and in view of my foregoing observations, impugned order dated 23.08.2011 is set aside and matter is remitted back to Tribunal below to decide a fresh, after giving reasonable opportunity to both sides, without being influenced by any of the observations made in this order. As the S.A. is an old case and Appellant is a Senior Citizen, Tribunal below shall take up this case on priority basis and decide it as expeditiously as possible preferably within four months from the date of receipt of the order. Appeal is allowed accordingly.

All other miscellaneous applications, if any, are dismissed as infructuous.