Prasenjit Mandal, J. - (1.) THIS application is at the instance of the applicant/respondent and is directed against the judgment and order dated February 4, 2011 passed by the Hon"ble Debts Recovery Appellate Tribunal in Appeal No.114 of 2010 thereby allowing the appeal and setting aside the order impugned therein being the order dated November 30, 2010 passed by the learned Debts Recovery Tribunal II, Kolkata in SA/673/2010.
(2.) THE short fact is that the applicant availed several kinds of credit facilities from the bank/opposite party herein but it did not make repayment as per terms and conditions for obtaining the credit facilities. As a result, the dues from the applicants to the bank/opposite party herein arose to the amount of Rs.9,48,66,124.32 paise as on February 15, 2010. Under the circumstances, the bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth shall be referred to as the SARFEASI Act of 2002). THEreafter the bank issued another notice under Section 13(4) of the SARFEASI Act of 2002 upon the applicant. At that stage, the applicant filed an application being No.SA/673/2010 before the Debts Recovery Tribunal-II, Kolkata. THE opposite party contested the said application. THE opposite party raised a preliminary point that the said application is not maintainable. Upon hearing both the sides, the said Tribunal held that the application was maintainable. Being aggrieved by such observations, the bank/opposite party herein preferred an appeal being Appeal No.114 of 2010. That appeal was disposed of by the impugned order holding that the application was not maintainable and as such, the same was dismissed. Being aggrieved, this application has been preferred. 2. Mr. Banerjee, learned senior Advocate appearing on behalf of the applicant, submits that in the instant application, before taking any steps under the said Act by the creditor a notice under Section 13(2) of the SARFEASI Act of 2002 is essential and such a notice must be served upon the debtor. In the instant case, though a purported notice was issued showing that actually a notice under Section 13(2) of the SARFEASI Act of 2002 was issued, but in reality it is not at all a notice under Section 13(2) of the SARFEASI Act of 2002. He has read the said notice dated August 6, 2010 as appearing at page no.66 and 67 as annexure-H. He has contended that this notice did not fulfil all the particulars relating to credit facilities that were required for the purpose of proceeding further for realisation of the dues by a creditor. Similarly he has also contended that the purported notice dated November 18, 2010 under Section 13(4) as appearing at page nos.80 and 81 as annexure " K is not also a notice at all under Section 13(4) of the SARFEASI Act of 2002 and as such, it is not at all a notice under the said provision. THE bank/opposite party herein is not, therefore, entitled to take legal steps for recovery of dues from the applicant. For that reason, the applicant preferred the said application and the learned Tribunal has rightly held that the application is maintainable and fixed the next date for hearing on interim measures, etc. Against such orders, the bank/opposite party preferred an appeal and the Hon"ble appellate Tribunal has passed the impugned order holding that the application is not maintainable. So, the impugned order cannot be supported. On the other hand, Mr. Mederor, learned Advocate appearing on behalf of the opposite parties, submits that the Hon"ble appellate Tribunal has rightly held that the notice under Section 13(2) has been duly served upon the debtor by the creditor and thereafter the notice under Section 13(4) of the said Act has also been duly served upon the debtor and so there is no illegality. The learned Advocate has referred to a number of decisions such as (2004) 4 SCC 311, 2004 (53) SCL 275, 2010 (3) Bankers" Journal 525, 2010 (1) Bank CLR 657, 2010 (2) Bank CLR 330, 2010 (4) Bank CLR 153 and 2008 (3) Bank CLR 584 and thus, he submits that these decisions and also the decisions referred to by the learned Advocate for the applicant have been duly considered by the Hon"ble Appellate Tribunal and he has rightly held that the application before the learned Tribunal is not maintainable and so, there is nothing to interfere with the impugned order. Therefore, the point that arises for consideration is that whether the Hon"ble Appellate Tribunal is justified in passing the impugned order. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the basis of filing of the application is the notices under Sections 13(2) and 13(4) of the said Act of 2002. The creditor bank issued a notice dated August 6, 2010 upon the debtor under Section 13(2). Since this notice is under challenge to show that the notice does not contain all the particulars that are required, for proper appreciation of the same, I am quoting the gist of the notice for convenience:- "To M/s. Adya Pipes Pvt. Ltd. 8th Floor, 15, Ganesh Chandra Avenue, Kolakta " 700013. Dear Sir, NOTICE U/S 13(2) OF THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002 1) We have, at your request granted you various credit facilities and we give below full details of credit facilities granted by us: a) Cash Credit (Hyp) Limit of Rs.600.00 lacs against Hypothecation of Stocks. b) ODBD Limit of Rs.225.00 lacs against Assignment of Book Debts. c) Terms Loan Rs.251.50 lacs against land, building, plant, machinery and all other fixed assets. 2) We inform you that out of total amount of Rs.9,48,66,124.32 (Rupees Nine Crore forty eight lacs sixty six thousand and one hundred twenty four only) is due to us as on 15.02.2010. You have defaulted in repayment of entire amount of Rs.9,48,66,124.32 (Rupees Nine Crore forty eight lacs sixty six thousand and one hundred twenty four only), which represents the principal plus interest due on 31.01.2010. 6 3) As you have defaulted in repayment of your full liabilities, we have classified your dues as Non Performing Asset in accordance with the directives of guidelines issued by the Reserve Bank of India. 4) We also inform you that inspite of our repeated demand notices and oral requests for repayment of the entire amount due to us, you have not so far paid the same. 5) You are aware that the abovementioned credit facilities granted by us are secured by the following assets/security, agreements (secured Assets); I. Land and Building situated at Mouza " Bhagapatipur, P.S. Sankrail, having J.L. No.7. L.R. Khatian No.719, 1326, Dag No.487 measuring 66 decimal owned by M/s Adya Pipes Pvt. Ltd. II. Flat No.202 at 37N (A/37N/6) Chandi Ghosh Road Kolkata 700 040 owned by Mr. Shankar Mitra. III. Flat No.2C, at 220, Prince Anwar Shah road, Alankar Apartment, Kolkata " 700 045 owned by Smt. Simerjit Kaur. IV. Flat No.1C at 220, Prince Anwar Shah road, Alankar Apartment, Kolkata " 700 045 owned by Smt. Simerjit Kaur and Mr. Harvinder Singh. 6) For the reason stated above, we hereby call upon you to discharge in full your liabilities to us within a period of 60 days from the date of receipt of notice, failing which we will be exercising the powers under Section 13 of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002, against the secured assets mentioned above. 7) Please take note that after receipt of this notice, you shall not transfer by way of sale, lease or otherwise any of the secured assets referred to in this notice, without prior written consent of the secured creditor. We draw your attention to Section 29 of Securitization Act, 2002, which award imprisonment up to one year or within fine or with both if you contravene the provisions of the Act"
(3.) THEREFORE, on perusal of the said notice, it appears that the said notice contains the various credit facilities that were granted to the applicant. The total dues as on February 15, 2010 are also available from the paragraph no.2 of the said notice. There is an indication that on being a defaulter in repayment of the liabilities, the bank/opposite party classified the dues of the applicant as Non Performing Asset in accordance with the guidelines issued by the Reserve Bank of India. Prior to the issuance of the notice, demand and oral requests were also made for repayment of the dues. The securities have been clearly indicated in paragraph no.5. Thereafter, the bank has asked the applicant to discharge the liabilities in full within a period of 60 days from the date of receipt of the notice failing which the bank will exercise powers under Section 13 of the said Act of 2002. Thus, I find that the notice under Section 13(2) of the 2002 Act is sufficient against the borrower against whom the bank is proceeding and on what basis and the classification of the dues as Non Performing Asset and the securities that were to be considered for realisation of the dues against the applicant. So, the notice as appearing as Annexure " H at page no.66 is no doubt a notice under Section 13(2) of the said Act and there cannot be any hesitation in holding that the said notice is none but a notice under Section 13(2) of the said Act. Similarly, the other notice upon the applicant under Section 13(4) of the said Act is appearing as annexure "K" at page no.80 and 81 and since this notice has also been challenged for describing the said notice as one under Section 13(4) of the said Act, for convenience, I am quoting the said notice:- "M/s. Adya Pipes Pvt. Ltd. 8th Floor, 15, Ganesh Chandra Avenue, Kolakta " 700013. Smt. Simerjit Kaur 220, Prince Anwar Shah Road, Alankar Apartment Kolkata " 700 045. Mr. Shankar Mitra 37N, Chandi GhoshRoad, Regent Park Kolkata " 700 040. Smt. Bimla Devi W/o late Gopal Dhanunka representing the estate of Late Gopal Dhanuka), 2nd Floor, 97/99/04 Sri Arobindo Road, Kolkata " 700 106. Mr. Harvinder Singh 220, Prince Anwar Shah Road, Alankar Apartment Kolkata " 700 045. Dear Sir, NOTICE U/S 13(4) OF THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002 FOR POSSESSION OF SECURED ASSETS Please refer to the Demand Notice dated 06.08.2010 issued u/s 13(2) of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 whereby the undersigned as the Authorized Officer of Central Bank of India, Burra Bazar branch had demanded from you a sum of Rs.9,48,66,124.32 (Rupees Nine Crore forty eight lacs sixty six thousand and one hundred twenty four and Paisa thirty two only) along with interest thereupon, in respect of the various credit facilities granted and enjoyed by M/s Adya Pipes Pvt. Ltd. You have failed and neglected to reply the said amount along with interest in the said notice even after expiry of the statutory 60 days. The representation received from your end has also been disposed of in accordance with law. We shall therefore enforce the secured asset by taking recourse to measures u/s 13(4) of the abovementioned Act and the relates rules for realizing the Bank"s outstanding dues. ;