BEFORE THE HONORABLE DISTRICT COLLECTOR,

COLLECTOR OFFICE, AT VASHI

Petition No. /2022
M/S. ASHISH KRAFT
through its Proprietor
Mr. Nitin Ambadas Pise,
Having its address at H-213, 0:1,
Vaibhav CHS, Sector No.26, Vashi,
Navi Mumbai – 400 703. …Petitioner.

Versus

1. The District Deputy Registrar, Mumbai.

2. The District Deputy Registrar, Nashik.

3. G S MAHANAGAR CO-OP. BANK LTD

Formerly known as The Mahanagar Co-op. Bank Ltd.
through its Authorized Officer.
Head Office at Hiramani Super Market, Ground Floor,
Dr. B. A. Ambedkar Road, Lalbaug,
Mumbai -400 012.

4. The Special Recovery Officer,

G. S. Mahanagar Co-operative Bank Ltd. …Respondents.

APPLICATION UNDER RULE

7 AND 21 OF MAHARASHTRA
LAND REVENUE CODE 1966.

MAY IT PLEASE YOUR HONOUR:

1. The Applicant is proprietary concern of Mr. Nitin Pise and having
address as mentioned in the cause title of the present application.
The Applicant is owner of residential Flat premises No. H-213, 0:1,
 Vaibhav CHS, Sector No.26, Vashi, Navi Mumbai – 400 703 (“the
said Flat”).

2. The Respondent is incorporated under the provisions of co-

operative society Act and having one of its branches situated at the
address mentioned in the cause title of the present SA. The
Respondent inter alia grants financial assistance to its borrower.

3. The Applicant would like to place following facts leading to alleged

grant of credit limits to the Applicant by the Respondent.

a. The Respondent had advanced various credit facilities to

one of its borrower members viz. Mr. Rajendra Ramdhani
Yadav. In consideration thereof, the said borrower had
mortgaged his unit manufacturing paper product situate at
Village Samnapur, Taluka Sangamner, District Ahmednagar
(“the said unit”) constructed on the Agricultural land
belonging to the aforesaid borrower member viz. Mr.
Rajendra Ramdhani Yadav. It appears that the said
borrower committed default in due repayment of loan
amount to the Respondent. Consequently, the loan account
of the said borrower was classified as NPA and action for
recovery commenced under the provisions of SARFAESI
Act. It is pertinent to note that Respondent the Respondent
secured order of possession under section 14 of SARFAESI
Act by falsely stating on oath that the plot on which the said
unit is constructed is NA (Non-Agricultural). In fact, the
Respondent has paid penalty for unauthorized use of the
said plot for the purpose other than agricultural. The
Applicant craves leave to refer to and rely upon the copies of
the Order dated 18.06.2015 passed by the District Collector
of Sangamner and Penalty Receipts dated 17.11.2015
 evidencing payment of penalty by the Respondent for
unauthorized use of plot of land as and when produced.

b. In the year 2015, the Applicant approached the Respondent

for financial assistance to the tune of Rs.12.00 lakhs for the
purpose of expanding his ongoing business carried out at his
Shop situated as Vashi, Navi Mumbai.

c. The Respondent initially did not agree to grant financial

assistance to the Applicant as his CIBIL report was not
good. However, the Chairman and concerned Officer of the
Respondent informed that the Respondent will sanction the
credit Facilities subject to one condition of the Applicant
agreeing to transfer the business from Vashi to Sangamner,
District Ahmednagar by purchasing the said unit. Since the
Applicant had no knowledge of the business of paper
product and enough means to purchase the said unit, the
Respondent promised to provide all kind of assistance to the
Applicant in expanding his business and loan for the
purchase of the said unit. The Applicant agreed to consider
the proposal of the Respondent on the condition that the
rate of interest would be at 11.50% p.a. instead of 14% p.a.
The Applicant states that the Respondent orally agreed to
charge interest @11.50% p.a.

d. The Applicant not suspecting any foul play on part of the

Respondent agreed to the aforesaid proposal of the
Respondent.

e. Vide Sanction Letter dated 04th January, 2016, the

Respondent sanctioned the credit limit to the tune of Rs.
12,00,000/- repayable with interest @14% p.a. even though
the Respondent had agreed to charge interest @11.50% p.a.
and subject to such the terms and conditions as stipulated
 therein. Hereto marked and annexed as Exhibit “A” is the
copy of the Sanction Letter dated 04th January, 2016.

f. The Applicant states that vide registered deed of mortgage

dated 1st February, 2016, the Applicant has mortgaged the
said flat and shops for securing the due repayment of loan
amount due under the aforesaid cash credit facility of Rs.
6.00 Lakhs and Term loan of Rs.6.00 Lakhs aggregating to
Rs.12.00 lakhs. Hereto annexed and marked as Exhibit
“B” is the copy of the aforesaid registered mortgage deed
dated 1st February, 2016.

g. The Applicant objected to the rate of interest @14% p.a.

When the Applicant was assured by the Chairman and the
concerned officer of the Respondent that the rate of interest
would be reduced to 11.50% in or about 5 to 6 months from
the date of sanction.

h. The Respondent vide sale notice dated 27th February, 2016

invited tender for the purchase of the said unit at a Reserve
price of Rs.64,73,000.00 in an auction sale to be conducted
on 9th March, 2016. The sale notice was published in local
newspaper viz. Pudhari at Ahmednagar.

i. It is pertinent to note that before the date of auction sale

fixed on 9th March, 2016, the Respondent had already
passed a Resolution No.769 in their Loan meeting held on
15th January, 2016. In the said Resolution and more
specifically in the second last paragraph it is recorded that,
“the Bank has given all the rights to Mr. D. S. Mate to the
legal work while transferring the property mentioned in the
suit in favour of M/s. Ashish Kraft Prop. Mr. Nitin Ambadas
Pise for total consideration of Rs.65 lakh and further
mentioned that Mr. Mate will execute the sale certificate
 and execute the sale certificate in favour of Mr. Pise and
handover the possession of the said property after receiving
the entire consideration.” The Applicant craves leave to
refer to and rely upon the aforesaid resolution of the
meeting held on 15th January, 2016 as and when produced.

j. It is pertinent to note that when the above resolution was

passed, the Applicant was in dialogue with the Respondent
and had not given any application for grant of the loan
amount of Rs.65.00 Lakhs for the purchase of the said unit.
The above conduct of the Respondent suggest that the
Applicant was coerced, lured and forced to purchase the
said unit at premium and/or higher price on the pretext of
granting credit limits repayable with interest @ 11.50% p.a.

k. It is pertinent to note that the Respondent were aware that

the sale of the said unit would not materialize in an auction
sale and therefore the Respondent tricked and lured the
Applicant to purchase the said unit.

l. It is pertinent to note that tender form dated 29th February,

2016 for purchase of the said unit obtained from the
Applicant bears remark that the Applicant is declared
“Higher Bidder” on 29th February, 2016 much before the
date of auction sale fixed on 9th March, 2016. The conduct
of the Respondent leads to inference that the Applicant was
played, tricked and fooled since the day he intended to avail
financial assistance from the Respondent. Infact the
Respondent has committed fraud upon the Applicant in
sanctioning and granting of the credit limits in favour of the
Applicant. The Applicant craves leave to refer to and rely
upon the copies of the Tender Form dated 29th February,
 2016 and the Tender/ Sale Notice dated 27th February,
2016 as and when produced.

m. It is pertinent to note that the Respondent had deliberately

and intentionally did not show and/or ever handed over the
original title deed of the said unit to the Applicant.

n. The Applicant states that vide 1st Sanction Letter dated 05th
March, 2016, the Respondent sanctioned Term loan of Rs.
40,00,000.00 for on such terms and conditions as
stipulated therein. As per terms of the said sanction letter,
the Applicant was required to create mortgage of the said
unit. Hereto marked and annexed as Exhibit “C” is the
copy of the 1st Sanction Letter dated 05th March, 2016.

o. It is pertinent to note that on the purported date of sale

dated 9th March, 2016 and in consideration of the
Respondent having sanctioned Term loan of Rs.40.00 lakhs,
the Respondent got following documents executed from the
Applicant:

i. Loan Application dated 9th March, 2016;

ii. Deed of mortgage dated 9th March, 2016 for

Rs.40.00 lakhs. It is pertinent to note that sale deed
of the said unit is also dated 9th March, 2016. Both
sale deed and deed of mortgage both dated 9th
March, 2016 are registered with the Office of the Sub-
registrar at Sangamner, District Ahmednagar under
Deed No.1550 of 2016, dated 09.03.2016 and under
Deed No.1551 of 2016, dated 09.03.2016 respectively.
It is pertinent to note that under the aforesaid
registered mortgaged deed, the Applicant has
mortgaged the said unit for securing Term loan of Rs.
40,00,000.00. Hereto annexed and marked as
 Exhibit “D” is the copy of the aforesaid registered
deed of mortgage dated 9th March, 2016 for Rs.40.00
Lakhs.

iii. The Applicant states that subsequently vide 2nd

Sanction Letter dated 05th March, 2016, the
Respondent sanctioned Term loan of Rs. 65.00 Lakhs
(inclusive of Term loan of Rs.40.00 lakhs) on such
terms and conditions as stipulated therein. In the
said 2nd sanction letter, the fraudulently included the
said flat belonging to the Applicant and House no.6
belonging to wife of the Applicant as security.

iv. In accordance with stipulated terms and conditions,

the Applicant has not created mortgage in respect of
the said flat by executing any registered deed of
mortgage in favour of the Respondent for securing the
Term loan amount of Rs.65.00 Lakhs and hence the
Respondent is not entitled to take action against the
said flat for recovery of amount due under the
aforesaid Term loan of Rs.65.00 Lakhs. Hereto
marked and annexed as Exhibit “E” is the copy of
the 2nd Sanction Letter dated 05th March, 2016.

p. The Applicant has repaid dues to the extent of Rs. 18.00

Lakhs under the aforesaid Cash credit and term loan
accounts by disposing of 2 of his shops.

q. The Applicant states that in the Respondent failed and

neglected to handed over the said unit with all new and old
machineries as per terms and condition of sale. As per
Valuation report dated 08th September, 2015 carried out by
the Govt. Valuer Mr. Vilas K. Sanap, there were 18 kinds of
Machineries having an aggregate value of Rs.37,62,950/-.
 The original and new machinery listed at sr. no. 2 and
having value of Rs. 12,92,000.00 was replaced and
substituted by old machinery having value of Rs.
2,00,000.00 by the borrower in collusion and in connivance
with the concerned officer of the Respondent. The
machinery listed at sr. nos. 10, 11 and 16 of the aforesaid
valuation report was missing at the time of receiving
possession of the said unit. The said fact was brought to
knowledge of the Respondent and hence another valuation
was carried out on 16th March, 2016 wherein it is confirmed
and acknowledged by the concerned officers of the
Respondent that some of the machineries marked as “X”
(crossed) are missing and therefore the Applicant was
entitled for either refund or credit to the extent of the value
of the aforesaid missing machineries. The above conduct
leads to inference that the Respondent has fraudulently
induced the Applicant to pay for some of the machineries
not available at the time of sale. The Applicant craves leave
to refer to and rely upon the copy of the Valuation report
dated 08th September, 2015 as and when produced.

r. The Applicant states that out of the sanctioned cash credit

limit of Rs. 6.00 lakhs and Term loan of Rs.6.00 lakhs
aggregating Rs.12.00 Lakhs, the Respondent has utilized an
approximate amount of Rs.7 and odd lakhs towards
registration and stamp duty of deed of mortgage and sale
deed dated 9th March, 2016, share capital of Rs.5.00 lakhs
and other misc. charges and balance amount of Rs.3.00
Lakhs was deposited towards 10% repayment of loan
amount in the loan accounts. The Applicant crave leave to
refer to and rely upon the statement of account as and when
produced.
s. The Applicant states that advertisement for auction sale
published on 27th February, 2016 shows that the property
including the said unit put for sale in commercial.
Whereas, vide letter dated 5th December, 2018, the
office of Tehsildar has confirmed that the said unit
is situated on agricultural land and therefore the
Tehsildar had levied penalty for not using the land
for agricultural purpose. The Applicant craves leave to
refer to and rely upon the copy of the Tehsildar’s letter
dated 05th December, 2018.

t. The Applicant has inter alia learnt that at the time of taking
physical possession of the said unit from the aforesaid
earlier borrower and owner and it is recorded in the
panchnama that the said owner and borrower was allowed
to remove some of the machineries for the purpose of
repairing. Under the guise of repair, the said owner and
borrower removed machineries and did not bring back and
installed in the said unit. The Respondent did not take any
action of bringing back the said machineries. Consequently,
the Applicant received the machineries worth Rs. 12.00
Lakhs against the machineries having total value of Rs.
Rs.37,62,950.

u. The Applicant states that he has paid an aggregate sum of

Rs. 64,73,000.00 under the aforesaid loan.

v. The Applicant states that owing to the foul play and arm-
twisting tactics adopted by the Respondent, the Applicant
has suffered huge loss of business. Consequently, the loan
account has become irregular and Bank classified loan
accounts as NPA as on 30th September, 2018. In sequel, the
Bank issued demand notice dated 4th October, 2018
 whereby demanding an aggregate amount of Rs.
64,68,587.00 (Rupees Sixty-Four Lakhs Sixty-Eight
Thousand and Five Hundred and Eighty-Seven only) from
the Applicant failing which the Respondent Bank has
threatened to take further action against the said flat under
the provisions of SARFAESI Act. Hereto annexed and
marked as Exhibit “F” is the copy of the said demand
notice dated 4th October, 2018.

w. The Applicant states that subsequent to the issuance of

demand notice dated 4th October, 2018, the Applicant has
deposited an aggregate amount of Rs.11.85 Lakhs for
regularizing loan accounts as on 31st March, 2019. In view
of the above deposit the loan accounts have become
standard and hence the demand notice has become
infructuous. In the event the Respondent Bank cannot
continue its action in furtherance of the said demand notice
dated 4th October, 2018. Hereto annexed and marked as
Exhibit “H” is the copy of statement of account proving
deposit of the amounts.

x. The Applicant states that vide Pre-Securitization notice

dated 22nd October, 2019 the Respondent has informed
that the loan account has classified as NPA on 30th
September, 2019 and called upon the Applicant to regularize
the loan account immediately failing which the Bank will be
constrained to initiate action under the act to recover its
dues. Hereto annexed and marked as Exhibit “I” is the
copy of the aforesaid Pre-Securitization notice dated 22nd
October, 2019.

y. The Applicant is claimed to be the borrower of the loan and

credit facilities granted by the Respondent. The Applicant
 states that the Respondent has not given any representation
to the above reply of the Applicant. The Applicant states that
vide Notice of possession dated 1st September, 2020; the
Respondent has threatened to possession of the said flat on
22nd September, 2020. As per the above Pre-Securitisation
notice, the loan accounts are classified as NPA on 30th
September, 2019. The demand notice dated 4th October,
2018 cannot precedes the date of NPA on 30th September,
2019 and therefore the demand notice dated 4th October,
2018 has become infructuous. In the event the Respondent
Bank cannot seek possession of the said flat in furtherance
thereof. The account referred to in the said Possession
notice dated 1st September, 2020 is ODCC-3983. Whereas,
in Pre-Securitization notice dated 22nd October, 2019 there
is reference to 3 loan accounts viz. EMIHYP 140 of Rs.6.00
lakhs, EMIHYP 143 of Rs.65.00 lakhs and ODCC 5026 of
Rs.6.00 Lakhs.

z. The Applicant states that without giving fresh statutory

demand notice under section 13(2), the Respondents are
seeking enforcement of security by exercising its rights
under the provisions of SARFAESI Act. In light of the above
facts, it is clear that the Respondents are not entitled to take
possession of the said flat under the said possession notice
dated 1st September, 2020. Hereto annexed and marked as
Exhibit “J” is the copy of Notice of possession dated 1st
September, 2020.

aa. Being aggrieved by the above action of the Respondent

initiated under the provisions of SARFAESI Act, the
Applicant has preferred the securitization application
bearing SA No. 98 of 2020 before Hon’ble Debt Recovery
Tribunal, Mumbai. That the said SA has been disposed of on
18th September 2020 with following observation and order.

Tribunal Observation –

“Tribunal pointed out that decision for paying defaulted

amount and regularizing the Accounts, under the scheme
of SARFAESI Act and Kules, credit team can send
communication to the Börçowër as such Letter dated
22/10/2019 was not sent by Authorised Officer is not
material and can be deemed to have impliedly revoked the
Sec. 13(2) Notice issued by the Authorised Officer.

Tribunal also opined that when different Facilities are

secured by different separate securities, the Notice under
Sec. 13(2) ought to have been Facility-wise or, if single
notice is issued, then it ought to have brought out details of
Facilities, their dues and the securities that will be enforced
clearly and distinctly. Since the Sec. 13(2) Notice dated
04/10/2018 has not brought out the distinction, it suffers
from its legal validity.”

Response Of Respondent –

Advocate for "Respondent, after consulting Law Officer,

informed that Respondent will not proceed with Notice
dated 01/09/2020 and will initiate fresh action under
SARFAESI Act by issuing fresh Notice under Sec. 13(2) in
compliance of requirement of SARFAES1 Act and Rules.

Order –

In the light of the submission made by the Advocate for

Respondent, both IA No. 704 of 2020 & SA No. 98 of 2020
become infructuous and stand disposed of accordingly.
Dismissal of IA and SA is without prejudice to the right of
 Respondent to initiate fresh action in accordance with
SARFAESI Act and Rules.

Hereto annexed and marked as Exhibit “k” is the copy of

Order of Hon’ble Debt Recovery Tribunal, Mumbai passed
in SA no. 98/2020 of dated 18th September, 2020.

bb. The Applicant states that without giving fresh statutory

demand notice under section 13(2), as per order dated
18.09.2020 the Respondents are again seeking enforcement
of security by exercising its rights under the provisions of
SARFAESI Act. Therefore the Respondent had issued
Demand Notice on dated 30.01.2022. In light of the above
facts, it is clear that the Respondents are not entitled to take
possession of the said flat under the said Symbolic
possession notice dated 31st May, 2022. Hereto annexed
and marked as Exhibit “l” is the copy of Notice of possession
dated 31st May, 2022.

cc.

4. JURISDICTION

The Applicant declares that the matter of the Application falls

within the jurisdiction of the this Hon’ble Tribunal as the cause of
action is in respect of all that piece and parcel of the property
residential Flat at H-213, 0:1, Vaibhav CHS, Sector 26, Vashi, Navi
Mumbai 400 703 (“the said flat”) and that the Respondent has
granted the Loan facility to the Applicant from their Turbhe
Branch Office having Address at APMC Fruit Market, ground
Floor, Central Facility Building Sector No.19, Vashi Navi Mumbai
400 705 and therefore this Hon’ble Tribunal has jurisdiction to try
and entertain the present Application under Section 17 of The
Securitisation and Reconstruction of Financial Assets and
 Enforcement of Security Interest Act, 2002. Hence it is within
jurisdiction.

5. LIMITATION:

The Applicant declares that vide possession notice dated 1st

September, 2020, the Respondent has threatened to take
possession of the said flat on 22nd September, 2020. Considering
the date of notice, the present securitization application is within
the period of limitation.

6. GROUNDS

i. That subsequent to the issuance of demand notice dated 4th

October, 2018, the Applicant has deposited an aggregate
amount of Rs.11.85 Lakhs for regularizing account as on 31st
March, 2019. In view of the above deposit the loan accounts
have become standard and hence the demand notice dated
4th October, 2018 has become infructuous. In the event the
Respondent Bank cannot continue its action in furtherance
of the said demand notice dated 4th October, 2018;

ii. As per the above Pre-Securitisation notice, the loan

accounts are classified as NPA on 30th September, 2019.

iii. The demand notice dated 30th January, 2022 cannot

precedes the date of NPA on 30th September, 2019 and
therefore the demand notice dated 4th October, 2018 has
become infructuous. In the event the Respondent Bank
cannot seek possession of the said flat in furtherance
thereof.

iv. The account referred to in the said Possession notice dated

1st September, 2020 is ODCC-3983. Whereas, in Pre-
 Securitization notice dated 22nd October, 2019 there is
reference to 3 loan accounts viz. EMIHYP 140 of Rs.6.00
lakhs, EMIHYP 143 of Rs.65.00 lakhs and ODCC 5026 of
Rs.6.00 Lakhs.

v. The Applicant states that without giving fresh statutory

demand notice under section 13(2), the Respondent are
seeking enforcement of security by exercising its rights
under the provisions of SARFAESI Act. In light of the above
facts, it is clear that the Respondent is not entitled to take
possession of the said flat under the said possession notice
dated 1st September, 2020.

vi. That the Respondent has not issued any fresh demand
notice under section 13(2) of SARFAESI Act and therefore
the Respondent Bank is not entitled to proceed with its
further action in furtherance of the demand notice dated 4th
October, 2018 which has become infructuous;

vii. That without issuing fresh statutory demand notice, the

Respondent is not entitled to take possession of the said flat
under the notice of possession dated 1st September, 2020;

viii. That the Pre-Securitization notice dated 22nd October, 2019

cannot be termed as demand notice under section 13(2) of
SARAFAESI Act and therefore the Respondent is not
entitled to take possession of the said flat without issuing
statutory demand notice under section 13(2) of SARFAESI
Act;

ix. That the Applicant has not executed any deed for mortgage
in respect of the said flat for securing the Term loan amount
of Rs.65.00 Lakhs in accordance with the terms of 2nd
sanctioned letter dated 5th March, 2016 and therefore the
Respondent Bank is not entitled to initiate any action
 against the said flat for recovery of its amount due under the
Term loan of Rs.65.00 lakhs.

x. Even otherwise the demand notice dated 4th October, 2018

is bad as it demands an amount due under Term Loan of
Rs.65.00 Lakhs and wrongly states the said flat as security
and hence the said demand notice is bad, illegal and void.

xi. That even Pre-Securitisation Notice issued by the

Respondent bank is illegal and bad in law;

xii. That the Respondent s have played Fraud on the Applicant

to recover the dues of its erstwhile borrower viz. Mr.
Rajendraprasad Ramdhari Yadav in entire loan transaction;

xiii. That the Respondent s have played fraud upon the

Applicant by utilizing cash credit amount of Rs.6.00 Lakhs
and Term Loan of Rs.6.00 Lakhs towards stamp duty and
registration of deed of mortgage, sale deed in respect of the
said unit and shares of Rs.5.00 lakhs and other charges etc;

xiv. That the Respondent continues to play fraud by showing

the said flat as security for Term loan of Rs.65.00 Lakhs
knowingly that the Applicant has not executed any
registered deed of mortgage in respect of the said flat for
securing the Term loan of Rs.65.00 Lakhs sanctioned on 5th
March, 2016;

xv. The Respondent Bank has sanctioned the Term Loan of

Rs.65 Lakhs and mortgaged the said unit and the Plot as
Non-Agricultural Land when admittedly it is an agricultural
land.

xvi. The Respondent bank issued possession notice under

section 13(4) and demand notice under section 13(2) of the
act are contrary to law and illegal. The Applicant states that
 the possession notice and demand notice are not issued by
the Authorized officer of the bank.

xvii. that the Respondent bank has levied excessive interest on

the Applicants. The Respondent s levied interest which
illegal and contrary to the terms and condition of allege
sanction letters.

xviii. That the Respondent bank has not followed the Reserve
Bank of India and Banking’ rules and regulation. The
declaration of NPA is illegal. Moreover, the bank has not
complied with the provisions and rules of SARFESI Act.
Thus, the demand notice is illegal. The further action on the
basis of alleged demand notice is also illegal.

xix. Without prejudice, the applicants are disputing the

signature in this loan transaction. Moreover, the applicants
have not submitted any original title documents with
intention to create mortgaged. Therefore, there are no legal
and valid mortgaged documents with the Respondent Bank
to take action under the provisions of securitization Act.

xx. The Applicants and principal borrower have never accepted

the terms and condition of alleged sanction letter and
renewal letter.

xxi. The Respondent charged illegal process fee and rate of

interest contrary to terms and condition of alleged sanction
letter, which were never accepted by the Applicants. Thus,
the Respondent is claiming illegal amount against the
Applicants.

xxii. In the demand notice, the Respondent mentioned illegal

claim amount without annexing statement of account and
 mentioning loan documents and its details, mortgage deed
and details of original title documents etc.

xxiii. That the alleged Officer who has signed a demand notice,
and possession notice etc is not authorized. Moreover, the
said Officer has no authority to issue such notice and take
any action in respect of the said immoveable Properties.

xxiv. Since the Demand Notice and the action of taking over
possession is illegal and malafide, and there have been
many objections raised but the same has not been
considered and have been simply brushed aside without any
reasons. Thus, the said securitization action is required to
be immediately quashed and set aside.

xxv. It is pertinent to note that the Applicant was regular in

making payments to the Respondent s Bank. However, due
to weak business and slowdown in the business sector and
medical emergency in family of the Applicant, the regular
operation of loan accounts could not maintain.
Consequently, the loan account was classified as NPA.

xxvi. The Respondent should be called upon to substantiate its

alleged claim of Rs.56,85,689/- as stated in the Pre-
Securitisation Notice dated 22.10.2019, in spite of making
various and substantial payments in the loan accounts by
the Applicant. The interest so charged is not in line with the
contractual rate and is contrary to the norms laid down by
the Reserve Bank of India. The interest has been
compounded and charged excessively. The Applicant will
demonstrate as to how the interest calculation is incorrect
and the accounts statement are improper.

xxvii. The Applicant call upon the Respondent to produce the true
certified statement of loan accounts. The statement of
 account as provided to the Applicant shows variation in the
rate of interest applied. Despite several requests and letters,
the Respondent refuses to hand over the up-to-date
statement of account. The Respondent Bank has debited
the same amounts on various occasions and repetitively.

xxviii. The copies of the purported documents creating loan

account and the securities thereon were never ever handed
over to the Applicant. Non- providing the certified / true
copies of the said loan documents agreement and the
documents is in direct contravention of the Rules and
Regulations and the Guidelines laid down by the Reserve
Bank of India. In spite of demand, the Respondent has not
provided the certified copy of the aforesaid Agreement and
all other accompanying documents alleged to have been
signed and executed by Applicant and others and relied
upon by Respondent . The Applicant’ several complaints
against the Respondent s and its erring officers went
unheeded. The Loan Account Statement provided by the
Respondent is not in accordance with the Accounting
Principles and agreed terms and conditions and also
misleading in nature. Even the Statement of account has not
been provided fully. The Respondent has been in a habit of
providing misleading and wrong documents. The Applicant
will demonstrate this aspect as and when necessary and in
due course of hearing.

xxix. It is also important to note that the Respondent has not

given the Applicant and others the benefit of fluctuation in
the rate of interest. Even when the rate of interest was
reduced the Respondent never informed the Applicant of
the same and the amount of the EMI was never reduced nor
was the number of the EMI’s reduced. On the contrary the
 EMI’s just went on increasing without any reasonable
explanation being given to the Applicant.

xxx. That the Applicant have been a regularly paying the

instalments to Respondent and as such there has been no
default in paying any of instalments whatsoever. The
Respondent has wrongly classified the loan accounts as
Non-Performing Asset on 30th September, 2019.

xxxi. The Applicant has paid substantial amounts to the

Respondent . Thus, it leads to suspicion about the fact that
the loan accounts could really be an NPA. The amounts
claimed by the Respondent are not yet adjudicated and
crystallized even as per the Respondent . The classification
of the loan account as non-performing assets is bad in law
because classification done arbitrarily and without notice to
the applicant. Further the classification is contrary to the
guidelines and direction issued by RBI.

xxxii. Likewise various other charges have been illegally debited to

the account without the consent of Applicant. It is also
necessary to note that without any reason and illegally,
Respondent has debited charges and such further penal
charges which are absolutely in contravention and breach of
the sanction terms.

xxxiii. The Applicant is layman and the Respondent is threatening

time and again by issuing various notices to Applicant
without any pith and substance.

xxxiv. The Respondent has threatened civil and criminal action

against Applicant without any cause of action. The sole
purpose of the Respondent ’s action is to harass the
Applicant mentally and physically. The Respondent ’s has
malafide intention of defaming and maligning Applicant’
 image and his goodwill. This conduct of the Respondent
speaks for itself and is liable to be deprecated.

xxxv. Even otherwise of bare perusal of provisions of SARFAESI

Act makes its absolutely clear that it is promulgated
primarily for security interest. So far as the issue of security
interest in concerned, it is only incidental or secondary to it.
Therefore, before embarking on any action as per Sec. 13 (2)
notice as purportedly issued, the Respondent is duty bound
to ascertain whether dues can be realized by other suitable
measures than already provided under the said Act. The
aforesaid notice is untenable in the eyes of law as it has been
issued without exhausting other remedies. Without
prejudice to the above, it is hereby clarified that the
applicant was and is always ready and willing to settle loans
either under one time settlement scheme or by restructuring
the debt. The Respondent has denied the opportunity to the
Applicant

xxxvi. Without prejudice to the above, it is hereby stated and

submitted that if the account is restructured or reschedule
by giving some time extension for the repayment along with
some concession in interest, the applicant will adhere to the
said terms without failure.

xxxvii. The Demand Notice is not as per rules of the said Act. The
procedure contemplated under the Rules has not been
followed with and therefore the said action of the
Respondent is violative of the Act.

xxxviii. The entire action of the Respondent Bank is per se illegal,

irregular and void and hence the action of the Respondent
Bank deserves to be set aside by this Hon’ble Tribunal;
xxxix. The Applicant craves leave to, refer to and rely upon the
grounds in the Securitisation Application. The Applicant
further craves leave to add, alter, amend, modify, the above
grounds with the leave of the Hon’ble Tribunal as and when
required. The Applicant further craves leave to refer to and
rely upon such other documents as are necessary in the
interest of justice.

7. CAUSE OF ACTION:

The Applicant state that the cause of action arose on 1st

September, 2020 when the Respondent Bank has issued Notice of
possession dated 1st September, 2020 whereby the Respondent
has threatened to take possession of the said flat on 22nd
September, 2020.

8. RELIEFS SOUGHT:

The Applicant therefore prays that:

This Hon’ble Tribunal may be pleased to declare that the demand

notice dated 4th October, 2018 issued under section 13(2) of
SARFAESI Act is bad, illegal and void and hence it is set aside;

This Hon’ble Tribunal may be pleased to declare that the demand

notice dated 4th October, 2018 issued under section 13(2) of
SARFAESI Act is infructuous as stood withdrawn;

That this Hon’ble Tribunal may be pleased to declare that the

possession notice dated 1st September, 2020 issued under section
13(4) of SARFAESI Act for possession of the immovable property
being all that piece and parcel of that Residential Flat at H-213,
0:1, Vaibhav CHS, Sector 26, Vashi, Navi Mumbai 400 703, owned
by the Applicant is illegal, bad and void and hence it is quashed
and set aside by this Hon’ble Tribunal;
 That this Hon’ble Tribunal may be pleased to declare that the
action of the Respondent initiated under section 13(2) and 13(4)
of SARFAESI Act initiated against immovable property being all
that piece and parcel of that Residential Flat at H-213, 0:1,
Vaibhav CHS, Sector 26, Vashi, Navi Mumbai 400 703, owned by
the Applicant is illegal, bad and void and hence it is quashed and
set aside by this Hon’ble Tribunal;

That this Hon’ble Tribunal may be pleased to declare that Pre-

Securitisation notice dated 22nd October, 2019 is not a demand
notice under section 13(2) of SARFAESI Act and hence it is
quashed and set aside by this Hon’ble Tribunal;

Costs of the Application be kindly provided for.

That any other relief which the Hon'ble court thinks just and
proper in the interest of justice and equity in favour of the
Applicant as this Hon’ble Tribunal deems fit proper and necessary.

9. INTERIM RELIEF SOUGHT:

The Applicant further prays that;

That pending the hearing and final disposal of the Application, the
effect, operation, execution and implementation of Demand
Notice dated 4th October, 2018 issued under section 13(2) of
SARFAESI Act may be stayed by this Hon’ble Tribunal.

That pending the hearing and final disposal of the Application, the
effect, operation, execution and implementation of possession
Notice dated 1st September, 2020 issued under section 13(4) of
SARFAESI Act may be stayed by this Hon’ble Tribunal.

That pending the hearing and final disposal of the Application, the
action of possession initiated by the Respondent with respect to
the suit property i.e. all that piece and parcel of that Residential
 Flat at H-213, 0:1, Vaibhav CHS, Sector 26, Vashi, Navi Mumbai
400 703, owned by the Applicant, may be stayed by this Hon’ble
Tribunal.

That pending the hearing and final disposal of the Application, the
Respondent and its authorised officers be restrained by an order
and injunction of this Hon’ble Tribunal from taking symbolic/
physical possession, auctioning, selling, transferring, disposing of
and/or creating any third party rights in any manner whatsoever
in respect of the immovable property being all that piece and
parcel of that Residential Flat at H-213, 0:1, Vaibhav CHS, Sector
26, Vashi, Navi Mumbai 400 703, owned by the Applicant.

Interim relief and ad-interim relief in terms of prayer clause (a) to

(d) above may kindly be granted.

10. MATTER NOT PENDING IN ANY OTHER COURT

The Applicant states that the subject matter of the present

Application is not pending in any other court or Tribunal.

11. PARTICULARS OF DEMAND DRAFT / POSTAL ORDER IN

RESPECT OF THE APPLICATION FEE IN TERMS OF RULE 13
OF THE RULES:

a] Name of the Bank on which drawn:

b) Demand draft No.

Or

(1) Number of Indian Postal Order(s)

(2) Name of the issuing Post Office:

(3) Date of issue of Postal Order(s):

(4) Post Office at which payable:

DETAILS OF INDEX

An index in duplicate containing details of documents to be relied

upon is enclosed.

LIST OF ENCLOSURES:

i) Application

ii) Vakalatnama

iii) Index

iv) Demand Draft No.

v) Annexure /Exhibits “A” to “J”.

VERIFICATION

I, NITIN AMBADAS PISE, Age 54 years, the Applicant having the

above said address, do hereby state on solemn affirmation that the
contents of the paragraphs No. 1 to ___ are true and correct to the
best of my knowledge and I believe the same to be true.

Solemnly affirmed at Navi Mumbai )

Date: 22nd January, 2020 )

APPLICANT

Identified by me

Applicant

Advocate for Applicant