URGENT LEGAL HELP REGARDING DISPOSSESSION OF MY RESIDENCE

4 years ago

Sir

I express again my gratitude for the advice received from you while filing SA in DRT. As you had been advicing, I had asked for loss and compensation higher than the Bank’s demand. Now I am in a critical position as the bank is trying to dispossess my house , where I am living with my family and I want your advice again to proceed.

Bank proceeded with SARFAESI proceedings and I had filed SA, questioning that,

(a) I have not received the S. 13(2) and 13(4) notices (b) the Authority of the then Authorised Officer (AO). (c) loss and damages incurred by me due to the false promise to sanction me another SSI loan, but fraudulently issued SARFAESI proceedings instead of sanctioning that SSI loan, by which time, I have incurred heavy expenses towards investments in the factory, expenses on account of running Office and Factory at New Delhi, marketing expenses etc.

Although concerning (a) and (b) above, I had tried to prove the facts in DRT as well as in CJM Court, Bank never admitted on (a) and (b) above ,but gave evasive replies all these 8 years. By God’s grace, somehow I received unconditional stay from DRT. Later I found from the Bank’s documents furnished in CJM Court that, Bank/ AO fraudulently fabricated S. 13(4) Notice – which was not delivered to me.

On 8/2018 , as the new Presiding Officer (PO) of DRT insisted to produce proof of service of S 13(4) notice, since the Bank could not produce it, finally by “Memo filed by the Defendant Bank , bank admitted that the Defendent bank is unable to produce the proof of service of the Possession Notice and Defendent bank hereby withdraw the Possession Notice dated 01.02.2011 , with liberty to initiate fresh proceedings under S.13(4) to take possession of the secured asset under the SARFAESI act in accordance with Law.”

But it is seen that Memo is signed only by AO. Anticipating collusion and fraudulent disposal of SA, on the basis of the above Memo, I had filed IA requesting to decide the IA on merit, to consider all the contentions raised by me, to quash and set aside S.13(2) and S.13(4) notices issued by the 2nd respondent , AO , who is not having Authority and mandate of Law. The PO was threatening me to dispose my SA. And the PO called me to be present as party in person and compelled me to receive a DD for mere Rs. 20,000 as cost for conducting case for 8 years! – recording in the proceedings that I was present as party in person and received the DD without any compulsion or cohesion etc.

Further in the proceedings of PO , it is mentioned as follows, “ Applicant has also filed IA 392/2018 AND IA 1038/2018, a petition for direction for considering the contentions raised by the applicant in the SA. Since the bank has filed a memo to withdraw the proceedings initiated under the Act which is under challenged in the present SA. Nothing survives in the SA , hence the prayer in the IA for deciding the matter on merits cannot be entertained. In view of the fact that the bank intends to initiate proceedings afresh, the liberty is granted to applicant to raise all the contentions in the present SA at appropriate time. With these observations, IA stands dismissed. Accordingly, SA stands disposed of with cost of Rs. 20,000/- ’’

Only after 10 months, the proceedings of the PO could be challenged in the Hon’ble High Court as OP(DRT) and the Hon’ble High Court indicated, “ I see no reason to exercise my discretionary jurisdiction in this matter and I therefore, dismiss this Writ Petition however leaving liberty to the petitioner, either to approach the DRT or DRAT appropriately in terms of Law.”

Since the Review Petition was not heard, but adjourned, again and again, as well the respondent bank filed Petition for taking possession and Adv. Commr’s Notice was received by me, again I moved the Hon’ble High Court as WP(Civil) and that Court again gave direction “to enable the Petitioner to invoke an alternative remedy or to pursue the review petition, coercive steps shall be deferred for a period of two weeks from today.”(ie. from 19/8/19) .

For an IA filed by me later in the same WP(C) , the Hon’ble Court on 6.11.2019 again gave the Order, “ The hearing of the Application to condone the delay of the review petition shall be preponed to 13.11.2019 and appropriate orders be passed thereon within further period of 3 days . In the light of the above, no coercive steps shall be taken against the petitioner till disposal of delay application. If the delay is condoned , order shall be passed on the stay application along with the order in condonation of delay.”

Under these circumstances, I request you to kindly give your expert opinion, so that, I can go ahead accordingly.

1. I could file Review Petition (RP) only on 04.04.2019, ie. on the 31st day from the date of High Court Order dated 26.02.2019, thereby causing 1 day delay. As such, an IA for condonation of 1 day delay in filing RP was filed. Pl advice whether delay in filing RP was to be taken (a) from the date of Proceedings dated 7.5.2018 of PO in DRT or (b) from the date of High Court Order in OP(DRT) , since we approached through Hon’ble HC. But in the judgement dated 26.02.2019, it is mentioned that “either to approach DRT or DRAT appropriately in terms of Law.”

If at all the delay is 1 day as per 1(b) above, whether it need not be counted in view of the judgement in WP(C) dated 19.08.19?

Now that the Hon’ble HC directed to hear the delay condonation petition on 13.11.2019, as the PO is very harsh, I apprehend that the PO would be hesitant to withdraw her own order, that, there is every possibility to deny the condonation of delay.

Once the application of delay is denied, the RP, as well as the stay petition on the matter could also be dismissed. Kindly advice on this.

Instead, shall I file a fresh SA as per the new cause of action – ie. Adv. Commr Notice, which is well in time and request the PO to consider my RP along with the fresh SA if it is OK. Is there any issue regarding res judicata or estopal.

I fear that, PO may not agree to condonation of delay in filing the RP, and so, the orders on RP and stay petition thereon would be negative. If it is so, is it advisable to withdraw the RP, delay condonation petition and stay petition while the fresh SA has been filed. Kindly advice how to manage the issue.

2. When should I try to club the issues concerning RP and fresh SA? Whether on 11.11.19 or 12.11.19 – when the fresh SA is in bench for admission? or on 13.11.2019 – the date preponed by HC to hear the delay condonation petition ?. Pl advice.

3. Shall I file an IA withdrawing the RP and delay condonation ptn and stay ptn, with liberty to file fresh SA with appropriate contentions?

4. By disposing my earlier SA , I am losing my valuable 8 years time, as I have to file fresh SA and to go through all proceedings again for more than 8 years again, to arrive at a finality. Kindly advice what to do. Can I approach Civil Court or Consumer Court later on for loss and damages. (ie. after withdrawing the RP now and getting stay order) or what is the way out?

5. Defendant Bank has been misguiding the CJM Court and DRT several times. Also the Bank/AO has played fraud on the Courts by manipulating Possession Notice- which was not send to me, but claimed that I have received it and later on they withdrew it in DRT- as explained above. How to proceed and file in which Court?

6. The counter affidavit filed by the bank in the RP stated that the Hon’ble HC never gave liberty to approach DRT for filing the RP. Whereas the HC directed to approach the DRT or DRAT. It is very clear that the bank fraudulently misguided the DRT by filing the ‘Counter affidavit’. When the RP is pending in the DRT, the Bank misguided the CJM also stating there is no appeal pending before any Court and obtained order for dispossession of my house. Pl advice how to proceed and to file in which Court?

7. The OA filed by Bank is pending in DRT and the Proof Affidavit and Counter Proof Affidavit were filed. Is there any advantage to request the DRT to hear now both SA and OA clubbed together?

8. I have paid in the SA, only the actual fee prescribed by DRT. But there is my counter claim in SA and OA. Till now, the Registry or PO has asked to remit extra fees. Should I have to pay any fee for my claim on loss and damages suffered by me, as clarified in SA and OA. If at all any fee to be paid, pl advice whether the fee could be paid now or later on.

9. The memo which was filed by the bank, was signed only by the Authorised Officer. Whereas, the Chairman, AGM and DGM were also Respondents in the SA. So is the memo maintainable? The memo is attached herewith.

10. The DRT disposed the SA by only issuing the case proceedings of 07.05.2018 and did not issue the final order. Can I approach the Hon’ble HC as OP(DRT) to reopen the SA stating that the mere release of case proceedings, without the final order, is null and void. The case proceeding of 7.5.18 is attached herewith.



Since our stand on our pending RP has to be taken now and fresh SA (if required)is to be filed (and heard) on Monday , 11.11.2019 ,kindly respond urgently.

Thanking you. Yours faithfully

Abraham Z