Prasenjit Mandal, J. - (1.) THIS application is at the instance of the petitioners and is directed against the order dated August 5, 2010 passed by the learned Presiding Officer of Debt Recovery Tribunal- II, Kolkata in S.A. No.303 of 2010 thereby dismissing an application of the petitioners in limine.
(2.) THE short fact is that the petitioners obtained a loan of Rs.9 lakh from the Punjab National Bank, Kharagpore I.I.T. Branch in the year 2004 and 2005 against security, that is, the property of the petitioners under Holding No.10/C/9, Ward No.27 under Kharagpore Municipality, District Paschim Medinipur. THE petitioners built a house thereon. THE petitioners repaid a sum of Rs.2,60,000/- up to the April 2008. THEy could not repay the loan more due to the ill health of the petitioner no.1. THEn the bank issued a notice under Section 13(2) of the SARFAESI Act, 2002 on February 14, 2008 subsequently a notice under Section 13(4) of the said Act on May 3, 2008. THE petitioners informed the bank of the fact that they were unable to make payments regularly and to allow them to sell a part of the house of the said building which was constructed by taking the loan. THEreafter, the bank issued another notice on December 3, 2008 for taking possession-cumauction sale of the property under Section 13(4) of the SARFAESI Act, 2002. THE petitioners filed a suit being O.S. No.189 of 2009 before the learned Civil Judge (Junior Division), 2nd Court, Medinipur on August 7, 2009 challenging the arbitrary proceedings of the petitioners, but the bank held an auction on August 11, 2009. Ultimately, the property was sold by auction without giving an opportunity to the plaintiff. THE bank sought help from the District Magistrate for taking physical possession of the secured asset of the borrower and the secured creditor got assistance from the District Magistrate for police protection for obtaining physical possession of the house of the borrower. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order is justified. Upon hearing the learned Counsel for the parties and on going through the materials on record I find that the above facts are not in dispute. The two petitioners took a loan of Rs.9 lakh from the plaintiff / bank against security of the house which was constructed on the land of the petitioners upon taking loan and the said house was subject to the provisions of the SARFAESI Act, 2002 as security for the loan. The bank / opposite party issued a notice under Section 13(2) of the SARFAESI Act, 2002 and for that reason, the petitioners filed an application for restraining the responsibility from taking any further action in pursuance of such notice. But the fact remains that in the mean time, notice under Section 13(4) of the SARFAESI Act, 2002 was also issued for realization of the dues. When such a course was taken by the bank as a secured creditor, the only course, open to the petitioners, was to file an appeal under Section 17 of the said SARFAESI Act, 2002 before the Debt Recovery Tribunal within a period of 45 days from the date on which such measures had been taken. The instant application has been filed by the borrowers calling upon the opposite parties to show cause as to why the impugned order dated August 5, 2010 passed in S.A. No.303 of 2010 by the Presiding Officer should not be set aside. The secured creditors obtained permission from the District Magistrate for necessary assistance for the purpose of taking physical possession of the property under the SARFAESI Act, 2002. The District Magistrate gave the necessary permission to take over physical possession and I find from the copy of the order of the District Magistrate was duly sent to the petitioners. It is pertinent to mention herein that before holding the sale, the borrowers had been given opportunity to pay up the dues till March 2010. But the borrowers failed to repay the loan within the time given to him and for that reason, the concerned District Magistrate has allowed to take up necessary steps for taking possession after observing all the legal formalities. The notice under Section 13(4) of the said Act was issued and thereafter, auction sale of the secured assets was held. Ultimately, the property was sold to the highest bidder and the sale proceeds were appropriated to the account of the petitioners. Mr. E. Ahmed appearing for the opposite parties has filed the necessary documents for the opposite parties in support of his submission. In the instant application, the petitioners have simply challenged the notice issued under Section 13(2) of the SARFAESI Act, 2002 and the matter went up to the stage of sale of the secured assets by mortgage and the petitioners were duly informed the fact of such auction sale and he was asked to take back the balance money after adjustment of the dues within a certain period. He was also instituted that if no step was taken by the petitioners, according to the Rules, the balance amount should be credited to the bank account of the borrowers. But no reply was given to the concerned bank by the petitioners. Thus, I find that the secured creditors had taken all the necessary steps after observing the provisions of the SARFAESI Act, 2002. There is no illegality or impropriety in the impugned order. So, there is no scope of interference with the impugned order.
(3.) ACCORDINGLY, I am of the view that this application is devoid of merits and so, it should be dismissed. The revisional application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;