Gobinda Chandra Haldar vs HDFC BANK on 22 April 2022

**ORDER SHEET**

KOLKATA DEBTS RECOVERY TRIBUNAL NO.2

**Case No. M.A. / 37 of 2018**

(arising out of TSA/06 of 2014)

Gobinda Chandra Halder

Vs.

HDFC Ltd. & ors.

Misc. Applicant

Respondent Bank

<table border="1"><tr><td>Date<br/>Of<br/>Order</td><td>Order with<br/>Signature</td><td>Office action<br/>with date and<br/>dated signature<br/>of parties when<br/>necessary</td></tr></table>

Order No.03

22.04.2022

Counsel for the parties:

For the Misc. Applicant : None

For the Respondent Bank : None

M.A./37 of 2018 (arising out of TSA/06 of 2014) is allowed and disposed of.

Final Order / Judgment is in separate sheet.

By Order

Presiding Officer

DRT-2, Kolkata

1MA/37 of 2018 – DRT-2,KOL**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**Jeevan Sudha Bldg., 07^th Floor, 42/C, J.L. Nehru Road, Kolkata – 700071**Before Shri Makena Srinivasa Rao, Presiding Officer****M.A. No. 37 of 2018**

(Arising out of T.S.A. No.06 of 2014)

**In the matter of** -

1. **Gobinda Chandra Halder**, son of Mrinal Chandra Halder, Vill.- Brahmacharipara, P.O.- Birnagar, P.S.- Ranaghat, Dist.- Nadia, Pin - 741127.

..... Misc. Applicant

-Versus-

1. The **HDFC Ltd.**, A company incorporated under the Companies Act 1956, having its registered office at Ramon House, H.T. Parekh Marg, 169, Backbay Reclamation Church Gate, Mumbai – 400020, having its Branch Office at 'Jeevan Deep', 3^rd Floor, 1, Middleton Street, Kolkata – 700071.

2. The Chief Manager, The HDFC Ltd.

3. The Recovery Officer, The HDFC Ltd.

..... Respondent Bank

Counsel for parties:

For the Misc. Applicant : Mr. N.C. Das & Ms. Paromita Trivedi For the Respondent Bank : Ms. Aparajita Rao, & Ms. Farida Yasmin **FINAL ORDER**Delivered on **22.04.2022**

The Applicant/Petitioner, has filed the instant M.A. being M.A. No.37 of 2018 on 18.06.2018 for recalling and/or restoration of order dated 04.05.2018 with the prayer to admit this application and to restore the T.S.A. No.06 of 2014 (S.A. 92 of 2010 of DRT-I) in its original file by recalling the order dated 04.05.2018 on the grounds as below :

(i) That the matter was filed by the Applicant by challenging the notice issued by the respondent Bank under section 13(4) of the SARFAESI Act, 2002, Rule 8(1);

(ii) That the Advocate on Record of this matter could not attend the Tribunal due to his illness on the day of hearing i.e. 04.05.2018 this Tribunal had dismissed the matter for non-prosecution. Ld. Advocate for the respondent Bank was also not present before the Ld. Tribunal on that date;

(iii) That the petitioner further submits that he is very diligent in conducting the matter and have no intention to delay the proceeding;

(iv) That the petitioner who is residing with his old senior citizen parents and other family members, and they did not have any other place of residence, if dispossess from the present location;

(v) That the petitioner prays for granting one opportunity to argue the matter before this Tribunal by recalling the order dated 04.05.2018;

(vi) That the Applicant / petitioner submits that he will suffer irreparable loss and injury if a recalling order is not passed in this matter by this Tribunal.

2. Affidavit-in-opposition has been filed by the respondent Bank on 24.03.2021 and denied and disputed all the allegations made in the instant petition, the respondent Bank refers the paragraph wise reply as below:

(i) That the Application for recalling/restoration of the order dated 04.05.2018 was served upon our Advocate before this Tribunal on 05.02.2019;

(ii) That with reference to paragraph 1 of the instant petition, it is stated that till date no copy of the application under section 17 of the SARFAESI Act was served on the respondents and the answering respondents are not aware of the grounds of challenge;

(iii) That with reference to paragraph 2 of the said petition it is stated that the junior advocate to the recorded Advocate was present before this Tribunal at the time of hearing;

(iv) That, paragraph 3 revealed that the petitioner is guilty of laches and no copy of the SA was served on the respondents though the main application was filed prior to 2014. Further, the Advocate on Record did not appear on the earlier occasion when the matter was taken up for hearing but was represented by a Counsel without justifying the absence of the Counsel in the Affidavit;

(v) That with reference to paragraph 4, it is submitted that the petitioner is guilty of laches since no steps were taken even to service copy of the main application to the respondents since filing of the SA;

(vi) That with reference to paragraphs 5 and 6, it is stated that the when petitioner enjoying the credit limit and pleads for retaining his premises but on the other hand refuses to repay the dues, hence the petitioner is not entitled to any relief from this Tribunal;

(vii) That, with reference to paragraphs 7 and 8, it is denied that unless orders are passed the petitioner would suffer irreparable loss or injury;

(viii) That, it is further submitted that there is no merit in the said petition and the instant petition should be dismissed *in limine* with costs.

1. 3. It is observed vide order dated 27.02.2020 that the Misc. Applicant submits the OTS proposal is under process. Tribunal's Order dated 24.03.2021 revealed that parties are at liberty to file written notes of arguments on the above said day when the matter was reserved for orders, but either of the parties have been filed the same.

2. 4. On the point of limitation, a copy of the instant writ application along with all annexures including the copies of the forwarding letter dated 04.07.2018 has been served upon the Respondent No.1 & 2 by Speed Post on 04.07.2018 of MA Case by post on 19.11.2018. The Track Report of the postal delivery is placed in the file, thus Service of petition upon the Respondent Bank is complete.

3. 5. Upon observing all the statements, annexures etc. and also verifying the details of submissions by both the parties, as stated above, I pass the following order: