International Asset Reconstruction Company Private Limited vs M/s Iota Chemiculture Limited on 10 May 2023

**ORDER**

1. 1) Today, this matter has come up for orders.

2. 2) The Applicant being Assignee of Bank of Baroda has filed the present Misc. Application with a prayer to add the name of the Assignee as Applicant in the judgment and Recovery Certificate and for other incidental reliefs. It is submitted that the Original Application filed by the Applicant Bank i.e. Bank of Baroda was allowed by this Tribunal vide order dated 19.03.2004. Pursuant to the said order and judgement dated 19.03.2004, Recovery Certificate was issued in favour of the Applicant Bank and accordingly, the recovery proceedings were initiated.

3. 3) It is submitted that during the pendency of recovery proceedings, the Applicant Bank has executed a Deed of Assignment dated 28.01.2008 with the Assignee herein, i.e. International Asset Reconstruction Company and accordingly, has agreed to and in pursuance thereof, assigned the debts due and payable by the Defendant no.1 alongwith all its rights, title, interests and benefit in and to the facilities granted to the Defendant no.1 by the Applicant with any incidental right thereto including the assignment of benefits under the financial instruments relating to the said facilities in favour of the Assignee along with the underlying securities. It is submitted that as per the said Deed of Assignment, the Assignee has become the full and absolute owner and as such the only person legally entitled to receive the repayment of the financial assets or any part thereof including the right to file a suit, institute such other proceedings in its own name and to take such other action as may be required for the purpose of the recovery of the said financial assets.

1. 4) It is submitted that the Assignee under the provisions of Section 5 of the SARFAESI Act, 2002 has become the lender and all rights, title and interest of the Applicant in respect of the said debts of Defendant no.1 are now vested in the Assignee. As such, it is submitted that the Assignee is required to be substituted in place of and instead of the Applicant Bank i.e. Bank of Baroda to enable the Assignee to proceed with the recovery of its dues under the present recovery proceedings.

2. 5) Soon after the registration of the case, the Defendants were summoned through registered post with A/D on 02.03.2009. As per record, notices sent to the Defendants no.2 & 4 were not served. Thereafter, the said Defendants were served through public notice in 'DNA' in Ahmedabad edition and "The Free press Journal" in Mumbai Edition on 07.08.2010, respectively. Applicant bank also filed affidavit in service at Exh. A/11 enclosing therewith Original Postal Receipt & track report. The Defendant no.3 appeared through his Advocate and filed affidavit in reply at Ex.R/13. Thereafter in spite of repeated adjournments, the Defendants failed to appear before this Tribunal. Thus, the Defendants facilitated ex-parte proceedings as per order dated: 27.04.2023.

3. 6) In this case, although the defendants facilitated ex-parte proceedings, but reply of Defendant no.3 is on record. To adjudicate this Application in a judicious manner, this Tribunal feel appropriate and judicious to consider the reply so filed at Exh.R/13.

In its reply, Defendant no.3 has submitted that the Deed of Assignment dated 28.01.2008 executed between Bank of Baroda and International Asset Reconstruction Company Pvt. Ltd., is not registered as required under the provisions of Transfer of Property Act. It is further submitted that the said Deed of Assignment is also not properly stamped. It is submitted that as per the said Deed of Assignment dues of 21 accounts have been assigned in favour of the International Asset Reconstruction Company Private Limited by Bank of Baroda; however each account constituted different cause of action as per Section 5 of the Bombay Stamp Act instrument relating to several distinct shall be chargeable with aggregate amount of duties.

It is further submitted that the said application is not filed within the period of limitation, since the Deed of Assignment was executed on 28.01.2008 and the present application was filed on 22.07.2008 i.e. after 6 month approximately. It is submitted as per the provisions of limitation, the said application is to be filed within 30 days. It is submitted that the Assignee is not entitled for any relief claimed in the present application, as no interest can be created in favour of the assignee and hence, the present application is to be dismissed with compensatory cost.

1. 7) Having carefully perused the documentary evidence placed on record and after considering the aforesaid submissions of the parties, it appears that after issuance of Recovery Certificate and during the pendency of recovery proceedings, the Original Applicant, Bank of Baroda has assigned all the financial assets with all underlying security and interest and all its rights, title and interest in favour of International Asset Reconstruction Company Pvt. Ltd., pursuant to of Deed of Assignment dated 28.01.2008.

2. 8) The present Misc. Application is filed by the Applicant, International Asset Reconstruction Company Pvt. Ltd., being Assignee Company under Section 3 of the SARFAESI Act, 2002 for substitution of its name as Applicant in place of the Original Applicant i.e. Bank of Baroda, on the strength of Deed of Assignment dated 28.01.2008, which is duly registered before Sub-Registrar Office, Ahmedabad - 4(Paldi) under sr. no.11388 dated 28.08.2008. By the said registered deed of assignment dated 28.01.2008, the Applicant International Asset Reconstruction Company Pvt. Ltd., has absolutely assigned and transferred all rights, interest, securities and benefits in all agreements, and deeds in the present recovery case in its favour and therefore, the International Asset Reconstruction Company Pvt. Ltd., is entitled to initiate, adopt and/or to continue, pursue the existing legal action in its own name against the recovery of dues under the facility granted by Bank of Baroda to defendants and enforce securities provided by them. In short International Asset Reconstruction Company Pvt. Ltd., the assignee under the provisions of Section 5(3) of SARFAESI Act has become the lender/secured creditor of the defendants and all the rights, title and interest of Bank of Baroda are now vested in the assignee applicant.

3. 9) A perusal of deed of assignment reveals that there is a mention regarding transfer and assignment in favour of International Asset Reconstruction Company Pvt. Ltd., of all rights and interest in the defendants including all financing documents, securities in respect of the loan accommodated by Bank of Baroda, details of debt due, names of facilities granted, particulars of mortgaged properties and list of financing documents have been indicated. Although Defendant no.3 has raised contention that document is not sufficiently stamped, but he has failed to specify how assignment deed is not properly stamped. The objection as taken is vague in nature. Whereas I find that the document has been registered by competent authority without any objection.

1. 10) In view of the established legal position, there is no reason why International Asset Reconstruction Company Pvt. Ltd., should not be substituted as an Applicant. Having said so, this Tribunal deems it proper to allow the Misc. Application of the Applicant, International Asset Reconstruction Company Pvt. Ltd., without prejudice of the rights of the defendants to raise their objections before the Ld. Recovery Officer.

2. 11) As a result, the application of International Asset Reconstruction Company Pvt. Ltd., is allowed. The Applicant is directed to be impleaded as an Applicant in place of Bank of Baroda.

3. 12) The Ld. Recovery Officer is directed to get the consequential amendment and incorporate as prayed for in the C.M.A. No. 11 of 2008 within 10 days as per provisions of Act 1993 and Rules framed thereunder.

4. 13) Parties are directed to appear before the Ld. Recovery Officer in the execution proceedings as per orders and date already fixed by the Ld. Recovery Officer.

5. 14) The Miscellaneous Application is disposed of accordingly. Let copies of this order be supplied to the parties as per rules. File be consigned to records.

(LAXMAN MADNANI) PRESIDING OFFICER DRT-II, AHMEDABAD

/smita/