Justice P.K. Bhasin, Chairperson of the Debts Recovery Appellate Tribunal in a case found that the respondent-bank had sanctioned financial facilities to the appellant in four different accounts and the appellant failed to repay the outstanding dues in time. Since the loan was secured by way of equitable mortgage of immovable property in Ludhiana(Punjab) besides other properties. The respondent-bank had auctioned under SARFAESI Act the Ludhiana property, which was a factory premise. The property was sold for Rs.one core and sixty-one lacs on 27.09.2005. After adjusting the sale proceeds against the balance outstandingin four accounts the, bank filed an Original Application for the balance outstanding of Rs.2,51,80,82/- under Section 13(10) of the SARFAESI Act. Appeal No.516/2017. That application was allowed by DRT and a recovery certificate as prayed for by the bank was issued.
Against that order of the DRT, the appellants filed an appeal in this Tribunal. One of the grounds of appeal was that besides taking over the possession of the factory in Ludhiana the bank had also taken possession of movable items lying thereof the value of Rs.1,53,36,776/-. but no information was given as to what happened to those valuable movable items. The allegation levelled was that the then authorized officer had siphoned off/misappropriated those items.
This tribunal found that the bank was supposed to have given adjustment of the value of movables of Rs.1,53,36,776/-. Holding so the recovery certificate was modified after giving the benefit of said amount of Rs.1,53,36,776/-and deducting this amount from the amount awarded by the DRT recovery certificate for Rs.98,44,038/- with interest as warded by DRTwas issued in the appeal vide order dated 30.09.2019. Thus, as against the amount of Rs.2,51,80,93/- awarded by the DRT the bank was held entitled to recover Rs.98,44,038.34 with interest as also awarded by the DRT.
The appellant felt that this Tribunal committed a mistake in directing that the value of movable items simply to be reduced from the amount awarded by the DRT and not directing the recoverable amount to be recalculated by adding Rs.1,53,36,776/- and Rs.3.18 lacs and Rs.5 lacs, which amounts were also admittedly received by the bank, to Rs. one crore sixty one thousand being the sale proceeds of factory premises at Ludhiana to be recoverable amount. So, a review petition came to be filed for correcting the error committed by this Tribunal. This tribunal found merit in this grievance of the appellant and accordingly reviewed the order dated 30.09.2019 vide order dated 14.06.2021. The bank was directed to file a fresh calculation of the amount after adding to Rs.1.61 lacs a sum of Rs.1,53,36,776/- , Rs. 3.18 lacs and Rs. 5 lacs.
The bank thereafter filed an affidavit in which it was stated that on the date of taking over possession of the mortgaged properties i.e. 15.04.2005 total outstanding balance in all the four accounts was Rs.2,48,75,064/-. The appellant sold the properties on 27.09.2005. The respondents in their counter affidavit have volunteered to interest on the said balance from 16.04.2005 to 27.9.2005 @ 16 % p.a. which comes to Rs.18,24,170/-, thereby making the total recoverable amount to be Rs.2,66.99,234/- whereas on 27.09.2005 the bank had recovered a total sum of Rs.3,22,54,993/-. Thus, the bank had recovered 55,55,762/- in excess and there remained no cause action for filing an application Section 13(10) of SARFAESI Act for recovery of anything.
Thus, now the O.A. of the bank would stand dismissed and the recovery certificate already issued would also stand withdrawn.
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