191090008432024_241b63f5140bcdbe60cd5121f767cc18.pdf

Reportable/Non-Reportable
                                           
      
  
               Misc. Appeal No. 73 of   2024-DRAT-Kolkata
         IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
                             Misc. Appeal No. 73 of 2024
   (Arising out of I.A. 3110 of 2024 in S.A. 676 of 2024  in DRT-III, Kolkata)
THE HON’BLE  MR.  JUSTICE ANIL KUMAR SRIVASTAVA
             CHAIRPERSON
   
1. The Authorized Officer, Axis Bank, working for gain at 1, Shakespeare 
Sarani, 
4th 
Floor, 
A.C. 
Market 
Building, 
Police Station-Shakespeare Sarani, Kolkata - 700 071;
2. Axis Bank, a banking company having its registered office at Trishul 
Opp. Samartheshwar Temple, Ellis Bridge, Ahmedabad – 780 006 and 
carrying on business, inter alia, from its branch office at 
1, 
Shakespeare 
Sarani, 
4th 
Floor, 
A.C. 
Market 
Building, 
Police Station-Shakespeare Sarani, Kolkata – 700 071.
                
         
       … Appellants
            -Versus-
1. Smt. Lavina Murarka, wife of Shri Anup Murarka, residing at 
Flat No. 1F, First Floor, Yellow Block, 4, Chakraberia Lane, 
Police Station - Ballygunj, L.R. Sarani, Kolkata – 700 020; 
2. Mr. Sparsh Murarka, son of Shri Anup Murarka, residing at 
Flat No. 1F, First Floor, Yellow Block, 4, Chakraberia Lane, 
Police Station - Ballygunj, L.R. Sarani, Kolkata – 700 020;
3. Shri Anup Murarka, son of Ramnath Murarka, at present residing at 
78, Block-B, Lake Town, Third Floor, Kolkata – 700 089. 
                               …  Respondents
Counsel for Appellants     
 …   
Mr. Pankaj Kumar Mukherjee
Mr. Sayak Ranjan Ganguly
Ms. Chaitali Acharjee
Counsel for Respondents          
 …   
Mr. Ramesh Chandra Prusti
Mr. Sanjib Das
Ms. Alisha Kar
Ms. Moumita Roy
JUDGMENT                         
:   
18th March, 2025
THE APPELLATE TRIBUNAL : 
Heard the Learned Counsel for the parties and perused 
the record.  
2.
Instant appeal has been preferred against an order 
dated 19.8.2024 passed by Learned DRT-III, Kolkata in   

2
      
  Misc. Appeal No. 73 of   2024-DRAT-Kolkata
I.A. 3110 of 2024  in S.A. 676 of 2024 (Smt. Lavina Murarka 
& Another -vs- Axis Bank & Others). 
3.
Respondents in the appeal are SARFAESI Applicants 
who had availed loan from the Secured Creditor/Appellant.  
Loan account became irregular and was classified as  N.P.A. 
Notice under Section 13 (2) of the SARFAESI Act, 2002 
(hereinafter referred to as the ‘Act’) was issued by the Bank 
on 18.3.2023.  Thereafter, an order dated 19.4.2024 was 
obtained by the Secured Creditor from the Learned Chief 
Judicial Magistrate, Alipore which was challenged by the 
Respondents by filing I.A. 3110 of 2024 on the ground that 
the 
said 
order 
is 
obtained 
without 
taking 
symbolic 
possession, as required under Section 13 (4) of the Act.  
Consequent thereto, Learned DRT restrained the Bank from 
taking any coercive action in respect of the secured assets. 
Feeling aggrieved by this observation and direction, 
Appellant has preferred the instant appeal.
4.
Feeling aggrieved, the Appellant has preferred the 
instant appeal.
5.
At the very outset, Learned Counsel for Appellants 
would submit that the Appellants have obtained the order of 
the Learned Chief Judicial Magistrate in accordance with law.  
Learned Counsel has placed reliance upon paragraph 26 of 
the judgment of the Hon’ble Apex Court in the case of 
Standard Chartered Bank -vs- Nobel Kumar & Others [(2013) 9 
SCC 620). On the strength of the judgment Learned Counsel 
submits that the Secured Creditor was well within its powers 

3
      
  Misc. Appeal No. 73 of   2024-DRAT-Kolkata
to seek an order from the Learned Chief Judicial Magistrate 
under Section 14 of the Act.  
6.
Per contra, Learned Counsel for Respondents submits 
that Learned DRT has passed the order in accordance with 
law.  It was incumbent upon the Secured Creditor to issue a 
notice under Section 13 (4) of the Act which should be in 
consonance with the provisions of Section 13 (2) of the Act

…