Debts Recovery Tribunals and Appellate Tribunals
MS PAT INTERNATIONAL AND ORS vs INDIAN OVERSEAS BANK on 22 July 2022
**ORDER SHEET**
**KOLKATA DEBTS RECOVERY TRIBUNAL NO.2**
**Case No. NDN 44 of 2022**
(in RA/ 01 of 2021)
M/s PAT International & ors. Applicants
Vs.
Indian Overseas Bank & ors. Defendants
<table border="1"><thead><tr><th data-bbox="153 183 246 259">Date Of Order</th><th data-bbox="246 183 782 259">Order with Signature</th><th data-bbox="782 183 918 259">Office action with date and dated signature of parties when necessary</th></tr></thead></table>
Order No. 16
22.07.2022
Counsel for the parties:
For the Applicants : Mr. Gourav Singh
For the Defendant Bank : Mr. Subir Bera
NDN 44 of 2022 is dismissed and disposed of.
Order is in separate sheet.
By Order
Presiding Officer
DRT-2, Kolkata
1NDN/44 of 2022 - DRT-2/Kol
**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**
JeevanSudha Bldg., 07<sup>th</sup> Floor, 42/C, J.L. Nehru Road, Kolkata - 700071
Before Shri Makena Srinivasa Rao, Presiding Officer **NDN. No.44 of 2022**
In
**RA/01/2021**
In the matter of
1. 1. **M/s. Pat International & Ors.** a partnership firm carrying on business at 71, Debendra Chandra Road, Kolkata-700015
2. 2. **Aftab Alam**, son of Serajul Haque and partner of M/s. Pat International, residing at P-19 Narkeldanga Main Road, Kolkata-700011
3. 3. **Md. Afrin**, son of Izharul Haque and partner of M/s. Pat International, residing at P-19, Narkeldanga Main Road, Kolkata-700011.
4. 4. **Ansarul Haque**, son of Serajul Haque, residing at P-19, Narkeldanga Main Road, Kolkata-700011.
5. 5. **M/s. Volga Tannery**, a Partnership Firm carrying on business at 73, Gulam Jalani Road, Topsia, Kolkata-700039.
.....Miscellaneous Applicant.
-Versus-
1. 1. **Indian Overseas Bank**, a body corporate constituted under the Banking Companies Act (Acquisition & Transfer of Undertakings) Act, 1970, having its Central Office at 763, Anna Salai, Chennai-600002 and one of its Branch, inter alia, at Assets Recovery Management Branch, 3, Chowringhee Approach, Kolkata-700 071 within the jurisdiction of this Learned Appellate Tribunal
2. 2. **Authorized Officer, Indian Overseas Bank, Assets Recovery Management Branch**, 3, Chowringhee Approach, Kolkata-700072.
3. 3. **Gobinda Halder**, son of Late Mukunda Halder, residing at Village - Rangapara Uttar, Purbapara P. O. & P.S. Kalna, District - Burdwan, Pin-713409.
.....Defendants
Counsel for the parties:
For the Misc. Applicant : Mr. Pravat Sil.
For the Defendant Bank : Mr. Omkar Ganguly
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**FINAL ORDER**
Delivered on 22<sup>nd</sup> July, 2022
The present Misc. Application (NDN/44 of 2022) has been filed by the Applicant on 19.01.2022 arising out of Review Application being RA No. 01 of 2021. Notice of the application have duly been served upon the Defendants and they have received the same.
2. In the Miscellaneous Application, Applicant stated that -
(i) The instant Misc. application arises out of a Review Application being RA/01 of 2021 filed by M/s. Pat International & Others, being the 2NDN/44 of 2022 - DRT-2/Kol appearing for the parties allowed the said Review Application and set aside the sale conducted during the pendency of the above case, vide order dated 5<sup>th</sup> October, 2021.
(ii) The Applicant states that on perusal of the order it reveals that the name of the pendentilite purchaser was wrongly stated as Ashok Timber instead of Ashoka Hawai Shoes Pvt. Ltd. The Applicant states that it came to their knowledge that on 19<sup>th</sup> April, 2021 the property in question was registered before the ADSR Sealdah vide Deed No. I-160601813/2021.
(iii) The Applicant submits that the Ld. Presiding Officer by allowing RA No. 01/2021 set aside the impugned sale conducted during pendency of the above case. As the sale was set aside, the Sale Certificate as well as the registered Deed of Conveyance was required to be cancelled otherwise same in question, viz., Ashoka Hawai Shoes Pvt. Ltd. may mis-utilized the said Deed of Conveyance relating to the property in question. Accordingly, the petitioner through his Ld. Lawyer vide letter dated 2<sup>nd</sup> November, 2021 intimated the same to the Additional District Registry, Sealdah intimating about setting aside of the sale relating to the property in question and requested to cancel the referred Deed in question.
(iv) That the Applicant/Petitioner has already filed a Caveat against the order before the Hon'ble High Court at Calcutta as well as before the Debts Recovery Appellate Tribunal, Kolkata, but no order of stay of operation of order has been served to the petitioner in spite of filing of the Caveat. The Applicant states that it is a settled proposition of law that merely filing of appeal does not stay of the operation of the order and in the instant case there is no order of stay granted by any Competent Court till date. The Applicant prays that in the interest of justice it is required to direct the Additional District Sub-Registry Sealdah to cancel the document bearing Deed No. I-160601813/2021 for the ends of justice.
3. In the instant case the Respondent Nos. 1 & 2 filed affidavit in objection on 15<sup>th</sup> February, 2022. Stating therein - a) That the Misc. Application filed by the Applicants is not maintainable in its present form. The Misc. Application is barred by law of limitation and also barred by principal of waiver, estoppels and acquiescence. The instant Misc. Application was not filed in proper jurisdiction. The Misc. Application suffers from the suppression of material fact etc. It is submitted that there is no provision in the SARFAESI Act for cancellation of the Sale Certificate on registered Title Deed. Moreover the purchaser of the property is not the party in this proceedings and where civil rights of a person, purchaser herein other than the borrower (s) or guarantor (s) are involved, the civil court have jurisdiction, that too, when it is prima facie apparent from the face of the record that the relief claimed, is incapable of being decided by the Ld. Debts Recovery Tribunal under Section 17 of the Act, 1993 read with Section 13 and 17 of the SARFAESI Act. It is submitted that Misc. Application is not tenable in law and liable to be rejected with exemplary costs.
4. I have heard the Ld. Counsel for the parties and gone through the pleadings and pass the following order :-
ORDER
(i) The instant application in Diary No. 44/2022 has been filed by the Applicant with a prayer for a direction to the Additional District Sub-Registry, Sealdah to cancel the document bearing Deed No. I-160601813/2021, Volume No. 1606-2021 page no. 72079272109, date of Registration 19<sup>th</sup> April, 2021, Query No. 1606200006 49564/2021, Serial No. 1606001651/2021. Ld. Counsel submits that RA/01 of 2021 arising out of TS/04 of 2021 was allowed setting aside the impugned sale vide order dated 05.10.2021. That as the said sale was set aside the sale certificate as well as registered deed of conveyance was required to be cancelled and accordingly the Applicants approached the Additional 3NDN/44 of 2022 – DRT-2/Kol District Sub-Registrar, Sealdah with a request to cancel the said deed in question and upon such request the A.D.S.R. Sealdah vide letter dated 09.12.2021 replied that, *"the ADSR Sealdah, District-24 Parganas is not capable of cancelling any document duly registered in his office unless specifically directed by any competent court of law and hence the request cannot be entertained"*. In view of such refusal to cancel the document the instant application has been filed for the aforesaid direction upon the A.D.S.R. Sealdah to cancel the document.
Heard the Learned Counsel for the Respondent/Defendant Bank.
(ii) It is submitted that the Misc. Application filed by the Applicant is not maintainable and is barred by the law of limitation and there is no provision in the SARFAESI Act for cancellation of the sale certificate or registered title deed. And further an appeal has been preferred vide Diary No. 49/2021 before the Hon'ble DRAT, Kolkata against the impugned order dated 05.10.2021 passed by the Ld. DRT-2 Kolkata and hence prays for dismissal of the instant Misc. application as the same suffers from various irregularities and infirmities.
Upon hearing both sides, this Tribunal is of the opinion that RA/01 of 2021 has been filed by the Review Applicant for reviewing the order dated 13.08.2021 in T.S.A No. 04/2021 arising out of SA/332 of 2017 as well as IA/655 of 2021.
Upon hearing both sides the sale conducted on 20.03.2021 was set aside by allowing IA/655 of 2021 on merits and the same has been disposed of. It is true that there is no provision in the SARFAESI Act for cancellation of the registered Sale Deed/ Title deed and the purchaser of the property is not a party to the said proceedings. Hence the prayer made by the Applicant in the instant application is beyond the scope and power of the Tribunal and the same is rejected. However, the Applicants are at liberty to approach the appropriate forum for redressal of their reliefs.
The instant Misc. application has not been registered and only Diary/Token number has been assigned. No leave of this Tribunal has been sought by the applicant for admitting the matter. However, the Respondent Bank has taken objection on maintainability of the instant application on various scores more detailed in the Affidavit in Objection filed and submissions made during hearing.
The name of the purchaser wrongly mentioned as Ashok Timber instead of Ashoka Hawai Shoe Pvt. Ltd. is corrected and shall be read as Ashoka Hawai Shoes Pvt. Ltd.
In view of the above the application is disposed of.
The MA being NDN/44 of 2022 (arising out of RA /01 of 2021) stands dismissed. All I.A.s if any are also stand disposed of. No order as to costs.
File be consigned to Record Room.
This order is dictated and corrected by the undersigned and pronounced on this the 22<sup>nd</sup> day of July 2022 in presence of Mr. Gaurav Singh, Ld. Counsel for the SARFAESI Applicant and Mr. Subir Bera, Ld. Counsel appearing on behalf of Respondent Bank.
Copy of the Order be uploaded in the Tribunal's Website Sd/- (M.S. Rao) Presiding Officer DRT-2, Kolkata
Sd