BEFORE THE HONORABLE DISTRICT COLLECTOR,

COLLECTOR OFFICE, AT MUMBAI.

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. 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.

2. 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 Defendant 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 application. The Defendant inter alia grants
financial assistance to its borrower.

3. FACT OF THE CASE:

The Applicant would like to place following facts leading to

alleged grant of credit limits to the Applicant by the
Defendant.

a. The Defendant 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 Defendant. 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 Defendant
the Defendant 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 Defendant 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 Defendant for
unauthorized use of plot of land as and when
produced.

b. In the year 2015, the Applicant approached the

Defendant 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 Defendant 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 Defendant informed that the Defendant
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 Defendant 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
Defendant 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 Defendant orally agreed to
charge interest @11.50% p.a.
d. The Applicant not suspecting any foul play on part of
the Defendant agreed to the aforesaid proposal of the
Defendant.

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

Defendant sanctioned the credit limit to the tune of
Rs. 12,00,000/- repayable with interest @14% p.a.
even though the Defendant 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 Defendant
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 Defendant 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 Defendant 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
Defendant 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
Defendant 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 Defendant were aware
that the sale of the said unit would not materialize in
an auction sale and therefore the Defendant 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 Defendant leads to
inference that the Applicant was played, tricked and
fooled since the day he intended to avail financial
assistance from the Defendant. Infact the Defendant
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 Defendant 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 Defendant 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 Defendant having sanctioned Term loan of
Rs.40.00 lakhs, the Defendant 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
Defendant 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
Defendant for securing the Term loan amount of
Rs.65.00 Lakhs and hence the Defendant 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 Defendant 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 Defendant. 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 Defendant and hence another
valuation was carried out on 16th March, 2016
wherein it is confirmed and acknowledged by the
concerned officers of the Defendant 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 Defendant 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 Defendant 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 Defendant 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 Defendant, 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 Defendant 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 Defendant 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 Defendant 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 Defendant.
The Applicant states that the Defendant 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 Defendant 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 Defendant 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
Defendant 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
 Defendant is 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 Defendant

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. Applicant states that without issuing fresh statutory

demand notice under section 13(2), the Respondents
are again seeking enforcement of security by
exercising its rights under the provisions of SARFAESI
Act. That the Respondent had again issued Demand
Notice on dated 30th January 2022. Hereto annexed
and marked as Exhibit “l” is the copy of Demand
Notice dated 30th January 2022.

cc. Thereafter the Respondent bank has given public

notice in newspaper, ……… on dated 31st May, 2022.
 Through the said public notice, the Respondent bank
has announced that it has taken Symbolic possession
of the property on dated 21st May, 2022 situated at
Flat No H/213/0:1, on ground floor, Building. No
H/213, Vaibhav CHS LTD, Sector No.26, Vashi, Navi
Mumbai, Tal & Dist.-Thane. Built up area adm.
36.470 sq. mtrs. In light of the above facts, it is clear
that the Defendant is not entitled to take possession
of the said flat under the said possession notice dated
30th January, 2022. Hereto annexed and marked as
Exhibit “m” is the copy of public notice of symbolic
possession dated 31st May, 2022.

dd. Being aggrieved by the above action of the Defendant

initiated under the provisions of SARFAESI Act, the
Applicant has submitted application for “One Time
Settlement” of the loan account to the Branch
Manager, GS Mahanagar Co-op. Bank Ltd. of Turbhe
branch, Mumbai on dated …/…/2022. But the
Respondent bank has not informed or reply to the
applicant about the said OTS application. From
this it is clear that the respondent bank wants to
acquire the flat Property of the applicant illegally.
Hereto annexed and marked as Exhibit “n” is the
copy of an application for “One Time Settlement”,
dated ______, 2022.

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 Defendant 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 court has jurisdiction to try and
entertain the present Application under provision of law of
Maharashtra Land Revenue Code 1966 and 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 symbolic possession notice

dated 31st May, 2022, the Defendant has threatened to
take possession of the said flat. 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 Defendant 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. That subsequent to the issuance of demand notice

dated 30th January, 2022, the Applicant has
submitted OTS application for regularizing loan
account on dated …/…/2022.

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

precedes the date of NPA on 30th September, 2019
and therefore the demand notice dated 30th January,
2022 has become infructuous. In the event the
Defendant Bank cannot seek possession of the said
flat in furtherance thereof.

v. The account referred to in the said Symbolic

Possession notice dated 31st May, 2022 is ODCC-
3983. Whereas, in Pre-Securitization notice dated 30th
January, 2022 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.

vi. The Applicant states that without giving fresh

statutory demand notice under section 13(2), the
Defendant 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
Defendant is not entitled to take possession of the
said flat under the said Symbolic possession notice
dated 31st May, 2022.

vii. That the Defendant has not issued any fresh demand
notice under section 13(2) of SARFAESI Act and
 therefore the Defendant Bank is not entitled to
proceed with its further action in furtherance of the
demand notice dated 30th January, 2022 which has
become infructuous;

viii. That without issuing fresh statutory demand notice,

the Defendant is not entitled to take possession of the
said flat under the notice of symbolic possession
dated 31st May, 2022;

ix. That the Pre-Securitization notice dated 30th January,

2022 cannot be termed as demand notice under
section 13(2) of SARAFAESI Act and therefore the
Defendant is not entitled to take possession of the
said flat without issuing statutory demand notice
under section 13(2) of SARFAESI Act;

x. 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 Defendant 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.

xi. Even otherwise the demand notice dated 30th

January, 2022 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.
 xii. That even Pre-Securitisation Notice dated 30.01.2022
issued by the Defendant bank is illegal and bad in
law;

xiii. That the Defendants have played Fraud on the

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

xiv. That the Defendants 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;

xv. That the Defendant 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;

xvi. The Defendant 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.

xvii. The defendant 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.
xviii. that the Defendant bank has levied excessive interest
on the Applicants. The Defendants levied interest
which illegal and contrary to the terms and condition
of allege sanction letters.

xix. That the defendant 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.

xx. 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 Defendant Bank to take action
under the provisions of securitization Act.

xxi. The Applicants and principal borrower have never

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

xxii. The Defendant 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 Defendant is claiming illegal
amount against the Applicants.

xxiii. In the demand notice, the defendant 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.

xxiv. 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.

xxv. 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.

xxvi. It is pertinent to note that the Applicant was regular

in making payments to the Defendants 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.

xxvii. The Defendant should be called upon to substantiate

its alleged claim of Rs. 56,31,430/- as stated in the
Pre-Securitisation Notice dated 30.01.2022, 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.

xxviii. The Applicant call upon the Defendant 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 Defendant refuses to
hand over the up-to-date statement of account. The
Defendant Bank has debited the same amounts on
various occasions and repetitively.

xxix. 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 Defendant 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 Defendant. The Applicant’ several complaints
against the Defendants and its erring officers went
unheeded. The Loan Account Statement provided by
the Defendant 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
Defendant 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.

xxx. It is also important to note that the Defendant 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 Defendant 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.

xxxi. That the Applicant have been a regularly paying the

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

xxxii. The Applicant has paid substantial amounts to the

Defendant. Thus, it leads to suspicion about the fact
that the loan accounts could really be an NPA. The
amounts claimed by the Defendant are not yet
adjudicated and crystallized even as per the
Defendant. 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.
xxxiii. 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, Defendant has debited
charges and such further penal charges which are
absolutely in contravention and breach of the
sanction terms.

xxxiv. The Applicant is layman and the Defendant is

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

xxxv. The Defendant has threatened civil and criminal

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

xxxvi. 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 Defendant 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
Defendant has denied the opportunity to the
Applicant

xxxvii. 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.

xxxviii. 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
Defendant is violative of the Act.

xxxix. The entire action of the defendant Bank is per se

illegal, irregular and void and hence the action of the
Defendant Bank deserves to be set aside by this
Hon’ble Tribunal;

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

8. 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.

9. RELIEFS SOUGHT:

The Applicant therefore prays that:

A. This Hon’ble court may be pleased to declare that the

demand notice dated 30th January, 2022 issued
under section 13(2) of SARFAESI Act is bad, illegal
and void and hence it is set aside;

B. This Hon’ble court may be pleased to declare that the

demand notice dated 30th January, 2022 issued
under section 13(2) of SARFAESI Act is infructuous as
stood withdrawn;

C. That this Hon’ble court may be pleased to declare that

the possession notice dated 31st May, 2022 issued
under section 13(4) of SARFAESI Act for Symbolic
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
Court;
 D. That this Hon’ble court may be pleased to declare that
the action of the Defendant 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 Court;

E. That this Hon’ble Tribunal may be pleased to declare

that Pre-Securitisation notice dated 30th January,
2022 is not a demand notice under section 13(2) of
SARFAESI Act and hence it is quashed and set aside
by this Hon’ble Court;

F. Costs of the Application be kindly provided for.

G. 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.

10. INTERIM RELIEF SOUGHT:

The Applicant further prays that;

A. That pending the hearing and final disposal of the

Application, the effect, operation, execution and
implementation of Demand Notice dated 30th
January, 2022 issued under section 13(2) of
SARFAESI Act may be stayed by this Hon’ble
Tribunal.

B. That pending the hearing and final disposal of the

Application, the effect, operation, execution and
 implementation of possession Notice dated 31st May,
2022 issued under section 13(4) of SARFAESI Act may
be stayed by this Hon’ble court.

C. That pending the hearing and final disposal of the

Application, the action of possession initiated by the
Defendant 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 court.

D. That pending the hearing and final disposal of the

Application, the Defendant and its authorised officers
be restrained by an order and injunction of this
Hon’ble court 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.

E. Interim relief and ad-interim relief in terms of prayer

clause (a) to (d) above may kindly be granted.

MUMBAI.

DATE - .08.2022. APPLICANT.

ADVOCATE FOR APPLICANT.

 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 on dated __ August,

2022.

APPLICANT

Identified by me

Advocate for Applicant