Appeal No. 148 of 2015 and M.A. Nos. 361, 362 of 2015. Case: Oyster Restaurant and Ors. Vs Thane Janata Sahakari Bank Ltd.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Case NumberAppeal No. 148 of 2015 and M.A. Nos. 361, 362 of 2015
Party NameOyster Restaurant and Ors. Vs Thane Janata Sahakari Bank Ltd.
CounselFor Appellant: Subodh Shah, Advocate and For Respondents: M. Patil, Advocate
JudgesA. Arumughaswamy, J. (Chairperson)
IssueSecuritisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 - Section 13(2)
CitationIV (2015) BC 57 (DRAT)
Judgement DateSeptember 21, 2015
CourtMumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Judgment:

A. Arumughaswamy, J. (Chairperson)

  1. Today the matter has been fixed for hearing. From the perusal of the records it is seen that M.A. No. 361/2015, i.e. application for stay, and the M.A. No. 362/2015, i.e. application for waiver of deposit, are yet to be disposed of. The learned Counsel for the appellants contended that the appellant have very good case on merit, therefore, the learned Counsel requested that the main appeal be taken up for hearing along with M.A. No. 362/2015 i.e. application for waiver of deposit. In view of above, the main appeal is taken up for hearing along with M.A. No. 362/2015, i.e. application for waiver of deposit.

  2. The appellant has filed the present appeal against the order dated 12.2.2015 whereby the Securitization Application (S.A.) No. 157 of 2011 filed by them before the Debts Recovery Tribunal (DRT), Pune, was dismissed. The appellants have filed the aforesaid S.A. on various grounds. One of such grounds is that the respondent Bank has issued legal notice dated 22.3.2004 contending therein that the respondent Bank had advanced Term Loan of Rs. 40 lacs to the appellants for their hotel business, but in the notice dated 4.8.2006 under Section 13(2) of the SARFAESI Act issued to the appellants, it is stated that the appellants have availed Cash Credit Facility of Rs. 50 lacs. It was contended that the appellants had submitted reply dated 22.8.2006 for this notice and the Banker has also issued rejoinder dated 9.11.2006 to that notice. But from the exchange of notices one can understand that in the notice issued by the Bank the amount has been mentioned wrongly i.e. instead Rs. 40 lacs it has been mentioned as Rs. 50 lacs and instead of Term Loan it has been mentioned as Cash Credit Facility. Therefore, it is very clear that the notice is not in accordance with law.

  3. The contention of the learned Counsel for the appellants is that the Bank is not entitled to recover any amount from them as the notice under Section 13(2) of the SARFAESI Act has not been issued to him in accordance with law and, therefore, the question of taking subsequent measures under the SARFAESI Act...

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