STATE BANK OF INDIA vs Ms Ramkrishna Lauha Bhander And Ors on 7 May 2024

(Continuation)

Vs

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</tr> </thead> <tbody> <tr> <td data-bbox="111 254 185 902"> <p>09<br/>07.05.2024</p> </td> <td data-bbox="185 254 754 902"> <p>Counsel for the parties:</p> <p>Mr. P.K Mukherjee ..... For the Appellant<br/>Mr. Gaurav Singh .... For the Defendants</p> <p>The appeal is filed to set aside the order dated 02.08.2023 passed by learned Recovery Officer-01, D.R.T-2, Kolkata whereby and whereunder Recovery Officer has directed the CHB to submit the details of the property particular of CDs as per the title deeds mortgaged with the banks.</p> <p>Factual matrix of the appeal is that appellant/applicant bank filed an original application number 223 of 2017 before the Debts Recovery Tribunal for adjudication of claim against the respondent/borrower and guarantor for a claim of Rs.56,40,799/- (Rupees Fifty Six Lakhs Forty Thousand Seven Hundred Ninety Nine). The said original application was adjudicated and judgment was passed by the learned Presiding Officer on 14.06.2019. In the proceeding of the OA before the learned Presiding Officer, DRT-2, defendants appeared by filing Vakalatnama on two occasions but thereafter they never appeared nor filed any written statement and defendants were ordered to be proceeded ex parte vide Tribunal order dated 06.03.2019. Recovery Certificate being RC/123/2019 was issued on 16.08.2019. As directed by the Recovery Officer vide order no.1 dated 20.08.2019 the Certificate Holder Bank (CHB) files a petition giving details of mortgaged secured property along with the copy of the title deeds. The learned Recovery Officer after consideration of the facts and the law passed an order of attachment dated 03.12.2019 and also appointed a receiver in the presence of learned advocate for the Certificate Debtor. The Certificate Debtors all along submitted that they wanted to settle the matter with the bank but neither they settle the account nor they challenge the order of attachment in any appeal.</p> </td>

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Page No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET (Continuation)**

Vs

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</tr> </thead> <tbody> <tr> <td data-bbox="110 258 185 914"> <p>Contd.<br/>07.05.2024</p> </td> <td data-bbox="185 258 750 914"> <p>The further case is that on 10.01.2023 the Certificate Debtors 1, 2 &amp; 4 files a petition inter alia for recall/ setting aside of the attachment order dated 03.12.2019 and also for rejection of the report dated 06.07.2022 filed by the receiver and further for stay of the proceeding in RC/123/2019.</p> <p>The CHB filed affidavit-in-opposition to that petition. Thereafter learned Recovery Officer passed an impugned order dated 02.08.2023 without consideration of material facts and law.</p> <p>The appellant bank is aggrieved only with the portion with that order that reads as follows:-</p> <p><i>"The CHB is directed to submit the details of the properties particulars of CDs as per the title deeds mortgaged with the Banks."</i></p> <p>This part of the order has been assailed. The role of the Recovery Officer is only to recover debts as determined and pass any order for. He went beyond his jurisdiction. The order dated 02.08.2023 is in fact a correction of his own order of attachment. The order has been passed not within the scope of Chapter V of Recovery of Debts &amp; Bankruptcy Act, 1993. If any correction is felt in the specification of the property the learned Recovery Officer could have rectified such specifications instead of giving direction to the CHB and wasting time in the process of recovery of money.</p> <p>On the above grounds prayer has been made to set aside the order dated 02.08.2023 passed by Recovery Officer -1, Debts Recovery Tribunal-2, Kolkata in RC/123/2019.</p> <p>Affidavit-in-opposition has been filed by the respondent. The gist of the case as made out in the opposition is that from comparison of the particulars in the Schedule of Properties (Item no. iii) set out in the final judgment and order dated 14.06.2019 and Schedule X-3 of RC/123/2019 filed by the appellant, it becomes crystal clear that appellant has given incorrect and non-existent description of the property and sought for attachment, and on the</p> </td>

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basis and order of attachment was passed on 03.12.2019.

**(Continuation)**

Case No. \_\_\_\_\_

M/s. Ramakrishna Launa Bhandar & Ors.

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</tr> </thead> <tbody> <tr> <td data-bbox="111 258 186 905"> <p>Contd.<br/>07.05.2024</p> </td> <td data-bbox="186 258 754 905"> <p>From perusal of the receiver's report dated 06.07.2022 it becomes clear that he has furnished a report of non-existent property and attachment could have been made on the said report.</p> <p>Further case set out by the respondent is that properties in Schedule X-1 and X-2 are a single piece and parcel of inseparable land and major portion of that are water body/lowland (Jal/Jalbumi) in the Record of Rights and therefore the properties cannot be attached and sold.</p> <p>Appellant/CHB is solely responsible for furnishing an erroneous and wrong particulars of properties in its RC/123/2019 thereby procuring an untrue Receiver's Report.</p> <p>The learned Recovery Officer acted most prudently by directing the CHB to submit details of the property as per title deeds mortgaged with the bank. Therefore, it has been urged that the appeal be dismissed with cost.</p> <p>Hear both sides, perused the record.</p> <p>On hearing the parties and on consideration of the documents the point for consideration is whether order no.30 dated 02.08.2023 passed in RC /123/2019 by the Recovery Officer is in accordance with the law or not.</p> <p>Section 25 of the Recovery of Debts and Bankruptcy Act, 1993 provides with the powers of the Recovery Officer. It provides as follows :-</p> <p><b>Modes of recovery of debts-</b> The Recovery Officer shall, on receipt of the copy of the certificate under sub-section(7) of Section 19, proceed to recover the amount of debt specified in the certificate by one or more of the following modes, namely:-</p> <p>a) attachment and sale of the movable or immovable property of the defendant.</p> <p>[(aa) taking possession of property over which security interest is created or any other property of the defendant and appointing receiver for such property and to sell the same]</p> </td>

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(Continuation)

Vs

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</tr> </thead> <tbody> <tr> <td data-bbox="116 256 191 902"> <u>Contd.</u><br/> 07.05.2024 </td> <td data-bbox="191 256 751 902"> <p>b) arrest of the defendant and his detention in prison;</p> <p>c) appointing a receiver for the management of the movable or immovable properties of the defendant;</p> <p>[(d) any other mode of recovery as may be prescribed by the Central Government]</p> <p>Therefore, the recovery certificate issued is the mouthpiece of the order passed in original application. It is drawn up in accordance with the judgment. The certificate is drawn up in such a way as to make it self contained and capable of execution. While executing the certificate the Recovery Officer cannot go beyond the recovery certificate. It must take the certificate according to its tenore and cannot entertain any objection regarding incorrectness of the certificate either in law or on some facts. It is universally held that the executing court cannot alter, vary or add to the terms of the order. It must take the recovery certificate as it stands and cannot re-adjudicate any matter. Though in the construction of the certificate it can in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the passing of the certificate.</p> <p>In the present case vide the impugned order, Recovery Officer has directed the CHB to submit the details of the property particular of CDs as per title deeds mortgaged with the bank. There are three properties of which regarding only one property as per the submission on behalf of the respondent there is discrepancy in the description of the property.</p> <p>Final order in OA/233/2017 was passed on 14 June, 2019 and direction was given for drawing of the certificate of recovery in terms of the judgment against the defendant in favour of the applicant bank and Recovery Officer was directed to realize the amount as per recovery certificate in accordance with the law.</p> </td>

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Page No.**KOLKATA DEBTS RECOVERY TRIBUNAL NO. 2****ORDER SHEET (Continuation)**

M/s. Ramakrishna Lauha Bhandar & Ors. Vs.

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</tr> </thead> <tbody> <tr> <td data-bbox="114 256 186 903"> <u>Contd.</u><br/> 07.05.2024 </td> <td data-bbox="186 256 756 903"> <p>By passing the impugned order dated 02.08.2023 it appears that Recovery Officer travelled beyond his jurisdiction and appears to re-adjudicate the matter, that is not permitted by the law.</p> <p>Therefore, the impugned order to that extent is set aside. The Recovery Officer shall proceed with the recovery proceedings so that it can be concluded as soon as possible.</p> <p>The appeal stands allowed.</p> <p>Order be uploaded on the Tribunal's website.</p> <p style="text-align: right;"> <br/> (Arbind Madhav)<br/> Presiding Officer<br/> DRT-2, Kolkata </p> <p>aky</p> </td>

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