191090001462019_a41916ae69f910bfc84a7361f2a29e68.pdf

IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
                    (Appeal No. 53 of 2019 IA No.85 of 2021)
                    (Arising out of S.A. 104 of 2018  in DRT-1, Hydrabad)
THE HON’BLE  MR.  JUSTICE ANIL KUMAR SRIVASTAVA
             CHAIRPERSON
05.07.2022
B. Shiva Shankar.
 
 
… Appellant
              -Vs-
Bank of India
 
    
…  Respondents
Mr. N. Srinivas Learned Counsel 
for Appellant.
Mr. 
Dipankar 
Das 
Learned
Counsel for Respondent.
 
THE APPELLATE TRIBUNAL :  
 
Instant Appeal is filed against the judgment order dated 
23/04/2019 in S.A No.104 of 2018 passed by Learned DRT-1, 
Hyderabad. 
The 
S.A. 
was 
dismissed 
on 
23/04/2019.
At the very outset it is relevant to mentioned that an Application 
under section 17 of SARFAESI Act, was filed by the Appellant 
challenging the Demand Notice under Section 13(2) and possession 
notice under Section 13(4) of the SARFAESI Act coupled with violation 
of rule 8(1) 8(2) of Security Interest Enforcement Rule,2002. Further 
there is a challenge about Rule 8(6) (7) and rule 9(1) of the Rules.
Objections  were filed by the Respondent before Learned DRT. 
Learned DRT recorded a finding that all the actions taken by the Bank 
are in accordance with law. Accordingly S.A. was dismissed.
During the course of the hearing the appeal, following order was 
passed on 28/04/2022 for compliance.
“During the course of argument, Learned Counsel for the
Appellant prays for, and is granted, two weeks time for filing 
supplementary affidavit on the point as to whether the amendment

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application moved before the Learned Tribunal Was disposed of or not
and if allowed, whether the amendment was carried out in the original 
S.A. before the Learned DRT; if so, whether opportunity of filing 
objection was given to the Bank or not; if so, whether Bank has filed
any written statement against the amended petition before the 
Learned DRT.”
In compliance of the order appellant has file supplementary 
affidavit wherein it is admitted that an amendment application was 
move by the appellant before Learned DRT-1, Hyderabad on 
11/10/2018. Respondent Bank also filed objection against the 
amendment application on 11/12/2018. Learned counsel submits that 
the amendment application was neither allowed nor dismissed by the 
Learned DRT although factum of issuances of sale notice was 
considered by the Learned DRT.
It is borne from the record that sale notice was issued by the 
Bank. Learned counsel for the Respondent Bank further submitted that 
sale was conducted but the sale was not confirmed.
Now sale certificate was also not challenged. This fact was 
brought before the Learned DRT by moving an amendment application 
filed by the respondent Bank. Amendment application was filed before 
final hearing of the S.A. which was well within the jurisdiction of 
Learned DRT either to allow or dismiss the application before passing 
the judgment on merit. It was imcumbent upon the Learned Presiding 
Officer to decide the amendment application deciding the case. Hence 
in my view, the judgement could not sustain and liable to be set aside 
with a direction to Learned DRT should decide amendment application
on merit and thereafter decide the case afresh after giving opportunity 
of hearing to parties.
The auction purchaser being a necessary party should also be 
brought on record before DRT.
Respondent No.3 is auction purchaser who was duly served but 
no one appeared on his behalf.

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Learned DRT is expected to decide the matter within a period of 
4 months from the date of the copy of judgment is received by 
Learned DRT. Since there was an interim order passed by the Learned 
DRT and the matter has been remanded back for disposal. Respondent
Bank shall not confirm the sale till the disposal of SARFAESI 
Application. However, if any adjournment is sought for by the 
SARFAESI Applicant, Learned DRT would be at liberty to vacate this 
interim protection granted to the Applicant.
ORDER
Appeal is allowed. Mat

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