Debts Recovery Tribunals and Appellate Tribunals
Sri Nripen Halder vs The Kalna Town Credit Co- Operative Bank Ltd on 16 August 2019
**DEBTS RECOVERY TRIBUNAL - 2, KOLKATA**
Jeevan Sudha Bldg. 7<sup>th</sup> Floor, 42/C, J.L. Nehru Road, Kolkata - 700071
**Before Shri M.S. Rao, Presiding Officer**
**SA No. MA/09/2019**
**(SA/51/2018)**
**In the matter of :**
**Sri Nripen Halder**, Son of Late Narayan Halder, Proprietor of M/s Joyguri Traders of Chhotomitrapura, P.O. Kalna, District- Burdwan, Pin-713409
..... **Applicant**
**Versus**
1. 1. **The Kalna Town Credit Co-Operative Bank Ltd**, P.O. Kalna, District- Burdwan, Pin-713409 service through the Secretary.
2. 2. **The Authorized Officer, The Kalna Town Credit Co-Operative Bank Ltd**, P.O. Kalna, District- Burdwan, Pin-713409.
3. 3. **The Branch Manager, The Kalna Town Credit Co-Operative Bank Ltd**, Kalna Branch, P.O. Kalna, District- Burdwan, Pin-713409.
..... **Respondents**
**Presence :**
Mr. Atiur Rahaman Khan, Learned Counsel appeared for Applicant Mr. A.Biswas, Learned Counsel for Respondent Bank.
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**FINAL ORDER**
**(Delivered on 16<sup>th</sup> August, 2019)**
1. 1. The Misc. Applicant has filed the present MA being No. 09/2019 arising out of SA/51/2018 on 19.03.2019 praying for recalling the order dated 20.02.2019 and to restore the SA/51/2018 to its original file.
2. 2. The Misc. Applicant has pleaded in the application that the matter is listed on 20.02.2019. On 20.02.2019 the Applicant's advocate could not attend the Tribunal due to his sudden illness. Hence, the Tribunal dismissed the SA/51/2018 for non-prosecution vide order dated 20.02.2019. The Applicant has filed the present MA being no. 09/2019 for recall of the Tribunal's order dated 20.02.2019.
3. 3. In brief, the facts of the SARFAESI Applicant's case are that the Applicant filed the SA/51/2018 on 07.03.2018 under Section 17(1) of the SARFAESI Act, taking limitation/cause of action from the possession notice dated 07.02.2018 published on
09.02.2018, praying for setting aside the 13(2) dated 17.11.2017 and possession notice dated 07.02.2018 (possession notice published on 09.02.2018).
4. The Respondent Bank sanctioned financial assistance in the form of Home Loan for Rs. 8, 00,000/- and Cash Credit for Rs. 8, 00,000/-. The terms and conditions were settled between the parties including creation of equitable mortgage upon the property as described in the SA. The Applicant enjoyed the financial assistance sanctioned by the Respondent Bank. Due to adverse financial condition the Applicant could not repay the loan amount as per the terms and conditions of sanction. The Respondent Bank has issued demand notice under Section 13(2) notice dated 10.08.2015, declaring the loan account as due and payable for Rs. 8,09,707/- in respect of House Loan amount and a sum of Rs. 8,31,786/- in respect of Cash Credit facility. The Applicant further stated that the Respondent Bank issued a notice under Section 13(4) dated 11.01.2016.
5. The Applicant further stated that on 17.11.2017 notice under Section 13(2) of SARFAESI Act, 2002 was again issued by the Respondent Bank for realization of (i) Term Loan for a sum of Rs. 10,66,475/- (ii) Cash Credit Loan for a sum of Rs. 11,05,911/-. The Respondent Bank has issued possession notice dated 07.02.2019 and published the same in the newspaper on 09.02.2018 as per Section 13(4) of the SARFAESI Act. The contention of the Applicant is that the Statement of Account is an incomplete one and the payments which were made by the Applicant has not been deducted properly since the Applicant made a payment for a sum of Rs. 2,57,015/-. Being aggrieved by the measures taken by the Respondent Bank by the said Notice under Section 13(4) of the SARFAESI Act, the Applicant has filed the present SA being No. 51/2018 on 07.03.2018.
**Tribunal's findings on the SA :**
(i) The Applicant after filing of the SA on 07.03.2018 has not made any effective persuasion of the case. The Applicant has not taken any effective step for disposal of his matter. From the conduct of the Applicant, it is very apparent that the Applicant was not interested to pursue his case. The matter was taken up for hearing on 16.04.2018, 18.06.2018 and 20.02.2019 but none appeared for the Applicant, the matter is heard on behalf of the Respondent Bank and final order has been passed dismissing the SA for non-prosecution vide order dated 20.02.2019.
(ii) As per Section 18(1) of the SARFAESI Act, *"Any person aggrieved, by any order made by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with such fee, as may be prescribed to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal."*
The Tribunal gives emphasis on the words "any order". The Tribunal is of the view that "any order" includes the final order passed by the Tribunal on merit on the SARFAESI application, the order passed by the Tribunal dismissing the SARFAESI application for non-prosecution, the order passed by the Tribunal on any IA. The SARFAESI Act is a special Act along with specific provisions for filing SARFAESI Application before the Tribunal or for filing Appeal before the Appellate Tribunal being aggrieved by the order passed by the Tribunal. The present MA being No. 09/2019 has been filed without mentioning the provision under which the Misc. Application has been filed by him. Hence, the Misc. Application has not been properly filed.
(iii) The Tribunal is of the view that the Misc. Applicant is not entitled to file the present Misc. application before this Tribunal being aggrieved by the Tribunal's order dated 20.02.2019 dismissing the SA/51/2018 for non-prosecution. The order states as follows:
*"Before going into the merits of the case, conduct of the Applicant, after filing of the SA deserves to be scrutinized.*
- (i) *The Applicant, after filing of the SA on 8<sup>th</sup> March, 2018, has not made any effective persuasion of the case. Applicant has not taken any effective persuasion of the case. Applicant has not taken any effective step for expeditious disposal of the matter. The matter is taken up for hearing today, on 20<sup>th</sup> February, 2019 when no one appeared on behalf of the Applicant.*
- (ii) *From the conduct of the Applicant it is evident that Applicant is not serious and diligent in perusing the SA.....*
- (iii) *The SARFAESI Applicant has neither taken any steps to proceed with the matter nor any payment has been made to the loan account since 2018 nor have any attempts been made to settle the outstanding amount. ....."*
Misc. Applicant is entitled to file appeal before the Appellate Tribunal under Section 18 of the SARFAESI Act being aggrieved by the order dated 20.02.2019 passed by the Tribunal in SA/51/2018, dismissing the same for non-prosecution.
(iv) In view of above, the MA being No. 09/2019 arising out of SA/51/2018 is liable to be dismissed as no proper and sufficient reasons has been provided in the application for non-prosecution of the SA proceedings. Multiple opportunities were given but the Applicant neither appeared on dates of hearing nor took any steps for settlement of the
(v) I do not find any reason or ground to entertain the present MA in this Tribunal. The Misc. Applicant has not been able to prove maintainability of the present MA under the provisions of the SARFAESI Act.
(vi) The present MA being No. 09/2019 is liable to be dismissed, hence dismissed, no order for cost.
Copy of the Judgment/Final Order be uploaded in the Tribunal's Website.
File be consigned to Record room.
Order pronounced in open Tribunal on this 16<sup>th</sup> August, 2019.
Sd/- (M.S. Rao) Presiding Officer DRT-2, Kolkata