VBZ JEWELLERS PRIVATE LIMITED vs ANDHRA BANK on 1 March 2021

JUDGMENT

1. This M.A. No.4/2018 is filed on 9th February, 2018 by the applicant No.1 M/s. VBZ Jewellers Pvt. Ltd, a Private Limited Company having its office at Kasari Bazar, Ahinsa Marg, Aurangabad though it is Director Mr. Yogesh Vithaldas Zaveri for unintentional condonation of delay of 4 days excluding statutory period of 45 days permitting registration of Securitisation Appeal. The applicant engaged in business as goldsmith and making gold, silver and other precious metal ornaments and its sales etc. The director of the applicant-company is in the said business for more than 30 years and banking with the respondent-bank from 2009.

2. The present Securitisation Application is filed through the Director of the applicant no.1-company who has been duly authorized by the applicant no.1- company by way of resolution dated 30-07-2017 passed in the meeting of the Board of Directors of the applicant No.1 Company to file the present Miscellaneous Application.

3. The respondent-bank is having one of its branch at Aurangabad and had sanctioned the Cash Credit facility to the applicant no.1-company in the year 2009. The applicant no.1 company has earned goodwill and reputation in the market and fetched substantial interest to the respondent bank during the past years. However, due to various adverse market situations since last couple of years there is adverse market conditions resulting into financial crises for the applicant no.1 company.

4. The applicants submit that the recent conditions being imposed by the Government about routing transactions through PAN cards for transactions over Rs.2 Lacs has hampered the business because the customers have not got accustomed to the new rules and this has directly affected the projected sales of the applicant no.1 company.

5. It is also submitted by the applicants that they have done heavy investments and as such have affected on the liquidity of funds in hands and due to which the regular monthly interest could not be fetched on time. The demonetization of notes from November, 2016 has also badly affected the business of the applicant no.1 company. As such a direct result of demonetization of currency notes the overall market of gold sales has shattered and step down side in sales.

6. The applicants submit that within the respondent bank on 06th July, 2017 issued a Demand Notice under section 13(2) of the SARFAESI Act. The said notice was duly replied / objected by the applicants on 31st August, 2017 through their advocate raising various objections for the proposed action of the respondent-bank. The said objections are not decided in a meaningful manner and as per the mandatory rules by the respondent-bank.

5. The applicants submit that the respondent-bank initiated action without issuance and service of notice under sub-section (4) of Section 13 of the 2002 Act upon them. As per the possession notice the alleged authorized officer of the respondent-bank has visited all the said properties on the same day i.e. 27th October, 2017 is incorrect. No possession notice is affixed at sites.

6. According to the applicants, after taking over the alleged possession by the respondent bank through its authorized officer, a notice dated 27th October, 2017 was served upon them on 1st November, 2017. The applicant seeks to condone the delay of four days in filing the Securitization Application challenging the symbolic possession taken by respondent-bank on 27h October, 2017. The applicant has produced the demand notice under sub- section (2) of Section 13 so also the possession notice under sub-section (4) of Section 13 of the 2002 Act.

7. To this Miscellaneous Application No.4/2018 respondent-bank has filed Reply / Written Arguments (Exhibit-08) stating that the applicant had the knowledge of the action and measures taken under the 2002 Act. It is submitted by the respondent-bank that the possession notice is served upon the applicants / borrower on 27th October, 2017 hence the limit of 45 days for filing the S.A. ends on 11th December, 2017. It is further submitted by the respondent-bank that the applicants want to take advantage of demonetization and against the Central Government policies. The applicants are clever goldsmiths and do not want to repay the loan amount taken from the Andhra Bank. The authorization filed by the applicants of some meeting appears to be fake, bogus and illegal. The applicants have tried to open another account with the HDFC Bank at Aurangabad. After knowing the fact, the Branch Manager of Andhra Bank immediately wrote a letter to the Branch Manager of the HDFC Bank, Jalna Road, Aurangabad for refusing of opening of the account of the applicants. It is also submitted that the applicants have executed registered mortgage deed in favour of the respondent-bank and clearly mentioned that all their business transactions would be rooted though the account operated by the respondent-bank. It is also submitted that the respondent-bank published the notices in leading newspapers and in accordance to all the provisions of the SARFAESI Act, 2002. It is further submitted by the respondent-bank that the applicants have filed another Securitisation Application bearing No.29/2018 after filing the present S.A. on the same cause of action, based on all the same documents, same procedure and same details. The respondent-bank prayed for rejection of condonation of delay.

8. The learned counsel for the applicant shall file the amended memo of parties as the Andhra Bank has merged with the Union Bank of India. Let the reply to the Securtisation Application be filed.

9. Considering the above circumstances, I am of the view that the applicants request may be allowed by condoning the delay giving an opportunity to contest the Securitisation Application as the delay has been explained and the delay is only for 4 days. In view of the above, I am of the opinion that the delay of four days must be condoned.

10. Considering the pleadings of the parties, documents and the oral submissions, I pass the following order

ORDER

1. Miscellaneous Application No.4/2018 is allowed.

2. The Registry is directed to register the Securitisation Application pending for registration as per rule.

3. No order as to costs.

4. The learned counsel for the applicant shall file the amended memo of parties as the Andhra Bank has merged with the Union Bank of India. Let the reply to the Securtisation Application be filed.

List the matter for filing reply and rejoinder and arguments in the Securitisation Application on 26th April, 2021.

(Vimal Gupta) Presiding Officer, Debts Recovery Tribunal, Aurangabad.