Replication to written statement in SARFAESI securitization application before Debt Recovery Tribunal
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BEFORE THE HON’BLE DEBT RECOVERY TRIBUNAL-II
AT NEW DELHI-110001
TSA NO. TSA number OF 2022
IN THE MATTER OF:-
Applicant's name: APPLICANT
VERSUS
Respondent's name: RESPONDENT
D.O.H.:- Date of hearing.2023
REPLICATION ON BEHALF OF THE APPLICANT TO THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN REPLY TO THE S.A. FILED BY THE APPLICANT
MOST RESPECTFULLY SHOWETH:-
1.That the present Replication is being filed on behalf of the Applicant in reply to the Written Statement filed by the answering Respondent (hereinafter referred to as the “Respondent”). It is submitted that the Respondent has made libellous and slanderous allegations against the Applicant in its Written Statement, and the Applicant reserves the right to initiate such legal action against the Respondent as may be warranted under law.
2.Without prejudice to the foregoing, and without in any manner admitting any of the submissions, contentions or allegations made in the Written Statement by the answering Respondent, save and except those expressly admitted herein, the Applicant tenders this Replication to the Written Statement as under:-
REPLY TO THE PRELIMINARY SUBMISSIONS/OBJECTIONS:-
1.That the contents of paragraph 1 of the preliminary submissions and objections are a matter of record and need no reply.
2.That the contents of paragraph 2 of the preliminary submissions and objections are wrong and denied. It is submitted that the person authorised by the Respondent company is not a competent person to sign and depose on behalf of the Respondent company, and that he has not been duly authorised in accordance with the rules and guidelines under the Act.
3.That the contents of paragraph 3 of the preliminary submissions and objections are wrong and denied. It is denied that the Applicant has not approached this Hon’ble Tribunal with clean hands. It is further denied that the Applicant has concealed the material facts of the case from this Hon’ble Tribunal or has deceived this Hon’ble Tribunal with false facts so as to obtain the undue advantage of a stay against the rightful order of the Ld. CMM, West, Tis Hazari Court, Delhi, with the sole mala fide intention of depriving the answering Respondent of its statutory and legal rights under the provisions of the SARFAESI Act, 2002.
4.That the contents of paragraph 4 of the preliminary submissions and objections are not denied and hence need no reply.
5.That the contents of paragraph 5 of the preliminary submissions and objections are wrong and denied. It is denied that, after due deliberation and consideration, the Applicant, along with Co-borrower's name, agreed to the initially offered loan amount, executed the Sanction Letter and Loan Agreement in favour of the Respondent, and agreed to adhere to the repayment schedule and financial commitments specifically detailed in the aforesaid Sanction Letter and Loan Agreement.
6.That the contents of paragraph 6 of the preliminary submissions and objections are wrong and denied. It is denied that, in reliance upon the representations and requests of the Applicant along with Co-borrower's name, the Respondent provided a complete set of loan documents, i.e. the Sanction Letter, Loan Agreement and other documents, and thereafter disbursed a loan against property of Rs. First loan amount (₹)/- vide Loan Account No. First loan account number, and subsequently a further amount of Rs. Second loan amount (₹)/- vide Loan Account No. Second loan account number.
7.That the contents of paragraph 7 of the preliminary submissions and objections are wrong and denied. It is denied that the Applicant, along with Mr. Co-borrower's name and Mrs. Co-borrower's name, after availing of the said loan facility, started making defaults in the payment of their EMIs, and had frequently defaulted in making timely payment of the EMIs in respect of the financial services availed by them.
8.That the contents of paragraph 8 of the preliminary submissions and objections are wrong and denied. It is denied that the Applicant, after availing of the loan facility, failed to adhere to the financial commitments made under the aforesaid agreements and committed defaults in regard to the repayment plan. It is further denied that, in view of the interest and instalments of principal remaining overdue in respect of the loans, and in accordance with the Master Circular/Guidelines for Asset Classification issued by the Reserve Bank of India (RBI)/National Housing Bank, the borrower account of the Applicant, along with Mr. Co-borrower's name and Mrs. Co-borrower's name, was declared a Non-Performing Asset on Date of NPA classification.
9.That the contents of paragraph 9 of the preliminary submissions and objections are wrong and denied. It is denied that it was within the Applicant’s specific knowledge that continued defaults on their part, as borrower and co-borrower, would lead to their loan account being classified as an NPA, and that despite such knowledge the Applicants failed to adhere to the repayment schedule.
10.That the contents of paragraph 10 of the preliminary submissions and objections are wrong and denied. It is denied that, in furtherance of the classification of the Applicant’s loan account as an NPA and the continued defaults in payment of EMIs by the Applicants, the Respondent was left with the only option of exercising its rights under Section 13(2) of the Act, 2002, and served a Demand Notice dated Date of demand notice upon the Applicants, i.e. the borrower and co-borrower. It is further denied that, as per the mandatory provisions of the SARFAESI Act, 2002, the said Demand Notice dated Date of demand notice was also served upon the Applicant through publication in newspapers (both Hindi and English editions).
11.That the contents of paragraph 11 of the preliminary submissions and objections are wrong and denied. It is denied that, despite service of the aforesaid Demand Notice by speed post and through newspaper publication, the Applicant and the co-borrower failed to discharge their liability within the stipulated period of 60 (sixty) days, and that the Respondent was further constrained to serve a Possession Notice dated Date of possession notice under Section 13(4) of the SARFAESI Act, 2002.
12.That the contents of paragraph 12 of the preliminary submissions and objections are wrong and denied. It is denied that the Applicant, along with the co-borrowers, failed to honour the repayment schedule and committed numerous defaults in making timely payment of the EMIs, in respect of which the Respondent served reminders through the Demand Notice dated Date of demand notice and the Possession Notice dated Date of possession notice upon the Applicant, but the Applicant paid no heed to the said reminders and deliberately ignored the same.
13.That the contents of paragraph 13 of the preliminary submissions and objections are wrong and denied. It is denied that, as per the statement of account maintained in the ordinary course of business as on Date of statement of account, the total outstanding amount is Rs. First outstanding amount (₹)/- vide Loan Account No. First loan account number, and Rs. Second outstanding amount (₹)/- vide Loan Account No. Second loan account number, which is jointly and severally due and payable by the Applicant and the other co-borrowers. It is further denied that, in addition to the said outstanding dues, the Applicant and the other co-borrowers are also liable to pay the interest and other charges accruing on the said credit facilities.
14.That the contents of paragraph 14 of the preliminary submissions and objections are wrong and denied. It is denied that the Respondent rightfully approached the Hon’ble Court of the Ld. CMM, West, Tis Hazari Court, Delhi, and obtained the impugned order dated Date of CMM order under Section 14 passed by the Ld. CMM, West, Tis Hazari Court, Delhi, under Section 14 of the SARFAESI Act, 2002, to take over possession of the Secured Asset, i.e. the Entire First Floor without roof rights, out of the freehold property bearing No. Property number, out of Khasra No. Khasra number, situated in the area of Village Village name, New Delhi-110027.
15.That the contents of paragraph 15 of the preliminary submissions and objections are wrong and denied. It is denied that the Applicant has made false, concocted and defamatory allegations against the Respondent with the sole intention of depriving the Respondent of its statutory rights under the SARFAESI Act to take possession of the mortgaged property.
16.That the contents of paragraph 16 of the preliminary submissions and objections are wrong and denied. It is denied that the present Securitization Application is a mala fide attempt on the part of the Applicants to deprive the Respondent of its statutory right to recover the debt under the SARFAESI Act, 2002. The Applicants have placed correct and bona fide facts before this Hon'ble Tribunal in support of their contentions, and the present Securitization Application is therefore liable to be allowed, and not dismissed with exemplary costs as alleged.
REPLY TO PRELIMINARY OBJECTIONS:-
A.Reply to Non-Joinder of Necessary Parties;
1.That the contents of paragraph 1 of the preliminary submissions are wrong and denied. It is submitted that the Applicant, along with the co-borrower, Co-borrower's name, never approached the Respondent for any housing loan facility as alleged.
2.That the contents of paragraph 2 of the preliminary submissions are a matter of record and need no reply.
3.That the contents of paragraph 3 of the preliminary submissions are a reproduction of legal procedure and need no reply.
4.That the contents of paragraph 4 of the preliminary submissions are wrong and denied. It is denied that the Applicant deliberately chose not to implead Co-borrower's name as a party to the present application, despite knowing that the loan was issued to the Applicant along with Co-borrower's name.
A.Reply to Misuse of Process of Law and Suppression of True and Correct Facts;
1.That the contents of paragraph 1 of the preliminary submissions are wrong and denied. It is denied that the present application is bad in law, or that it constitutes a misuse and abuse of the process of law, or that it has been filed with the sole intention of harassing the Respondent or causing it wrongful loss.
2.That the contents of paragraph 2 of the preliminary submissions are wrong and denied. It is denied that the Applicant has not approached this Hon'ble Tribunal with clean hands or has suppressed true and correct facts from this Hon'ble Tribunal.
3.That the contents of paragraph 3 of the preliminary submissions are wrong and denied. It is denied that the Applicants are attempting to mislead this Hon'ble Tribunal by placing incorrect facts before it, or by wrongly submitting that the Respondent did not serve the Demand Notice under Section 13(2) of the SARFAESI Act upon the Applicants. As is evident from the tracking report of the Demand Notice dated Date of demand notice, the Respondent has strictly complied with the provisions of the SARFAESI Act, 2002 and duly served all borrowers, including the Applicant in the present case and the co-borrower, Co-borrower's name.
4.That the contents of paragraph 4 of the preliminary submissions are wrong and denied. It is denied that the Possession Notice dated Date of possession notice issued under Section 13(4) of the SARFAESI Act, 2002 was duly served upon and received by the Applicant, or that this establishes that the Applicant had ample opportunity to regularise the defaulted loan account.
REPLICATION TO THE PARAWISE REPLY:-
1.That the contents of paragraph 1 of the reply are wrong and denied, and those of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicant deliberately chose not to implead Co-borrower's name as a party to the present application despite knowing that the loan was issued to the Applicant along with Co-borrower's name.
2.That the contents of paragraph 2 of the reply are a matter of record, need no replication, and those of the corresponding paragraph of the application are reiterated as correct.
3.That the contents of paragraph 3 of the reply are a matter of record, need no replication, and those of the corresponding paragraph of the application are reiterated as correct.
4.That the contents of paragraph 4 of the reply are wrong and denied, and those of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicants were duly served with the Possession Notice dated Date of possession notice issued under Section 13(4) of the SARFAESI Act, 2002 for taking symbolic possession of the secured asset, or that the same was neither objected to nor challenged by the Securitization Applicant.
5.That the contents of paragraph 5 of the reply are wrong and denied, and those of the corresponding paragraph of the application are reiterated as correct.
Replication to Reply to the Facts of the Case:-
i.That the contents of paragraph i) of the reply need no replication, and those of the corresponding paragraph of the application are reiterated as correct.
ii.That the contents of paragraph ii) of the reply are wrong and denied, and those of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicant, along with Co-borrower's name, approached the Respondent and requested for a housing loan facility against the property. It is further denied that the officials of the Respondent visited the Applicant's house and obtained the Applicant's signatures on the loan documents.
iii.That the contents of paragraph iii) of the reply are denied, and those of the corresponding paragraph of the application are reiterated as correct. It is specifically denied that the Applicant, along with Co-borrower's name, approached the Respondent and requested for a housing loan facility against the property.
iv.That the contents of paragraph iv) of the reply are denied, and those of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicant, along with Co-borrower's name, approached the Respondent and requested for a housing loan facility against the property. It is further denied that, after due deliberation and consideration, the Applicant, along with Co-borrower's name, agreed to the offered loan amount, executed the Sanction Letter and Loan Agreement in favour of the Respondent, and agreed to adhere to the repayment schedule and financial commitments specifically detailed in the aforesaid Sanction Letter and Loan Agreement.
It is further denied that, acting upon the representation and request of the Applicant along with Co-borrower's name, the Respondent provided a complete set of loan documents, namely the sanction letter, loan agreement, passbook and other documents, and further disbursed a loan against property in the amount of Rs.First loan amount (₹)/- vide loan account No. First loan account number and Rs.Second loan amount (₹)/- vide loan account No. Second loan account number.
It is further denied that the officials of the Respondent visited the Applicant's house and obtained the Applicant's signatures on the loan documents.
v.That the contents of paragraph v) of the reply are wrong and denied, and those of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicant, after availing of the loan facility, failed to adhere to the financial commitments made under the aforesaid agreements or committed defaults in repayment. It is further denied that, in view of the interest and principal instalments remaining overdue in respect of the loans, and in accordance with the Master Circular/Guidelines for Asset Classification issued by the Reserve Bank of India (RBI)/National Housing Bank, the borrower account of the Applicant along with Co-borrower's name was declared a Non-Performing Asset on Date of NPA classification.
It is further denied that the Applicant, along with the co-borrowers, failed to honour the repayment schedule and committed numerous defaults in making timely payment of the EMIs, in consequence of which the Respondent issued reminders through the Demand Notice dated Date of demand notice and the Possession Notice dated Date of possession notice to the Applicant, and that the Applicant paid no heed to the said reminders and deliberately ignored them.
It is further denied that the Applicant has made false, concocted and defamatory allegations against the Respondent with the sole intention of depriving the Answering Respondent of its statutory rights under the SARFAESI Act to take possession of the mortgaged property.
vi.That the contents of paragraphs vi), vii) and viii) of the reply are denied, and those of the corresponding paragraphs of the application are reiterated as correct. It is denied that the Applicant has made false, concocted and defamatory allegations against the Respondent with the sole intention of depriving the Respondent of its statutory rights under the SARFAESI Act to take possession of the mortgaged property. It is further denied that the Applicant is merely attempting to delay the proceedings and waste the time of this Hon'ble Tribunal by misusing the process of law.
vii.That the contents of paragraph (ix) of the reply are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the Respondent is fully aware of its duties and responsibilities as a Financial Institution and strictly adheres to them in consonance with the applicable rules, guidelines and laws. It is further denied that the Respondent does not ignore or violate any applicable provision of law and has always upheld the law of the land. It is further denied that the Respondent has complied with each and every mandatory provision of the SARFAESI Act, 2002. It is further denied that the Respondent rightfully approached the Hon'ble Court of the Court of the Ld. CMM before which the Section 14 application was filed and obtained the impugned order dated Date of CMM order under Section 14 passed by the Ld. CMM under Section 14 of the SARFAESI Act, 2002 to take over possession of the Secured Asset, i.e., Description of the Secured Asset.
viii.That the contents of paragraph (x) of the reply need no replication, and the contents of the corresponding paragraph of the application are reiterated as correct.
ix.That the contents of paragraphs (xi) to (xii) of the reply are wrong and denied, and the contents of the corresponding paragraphs of the application are reiterated as correct. It is denied that the Securitization Application (S.A.) is a malafide attempt of the Applicants to deprive the Respondent of its statutory right to recover the debt under the SARFAESI Act, 2002. The Applicants have produced wrong and baseless facts before this Hon'ble Tribunal in order to wrongfully obtain relief from this Court, and have failed to produce any substantial evidence in support of their contentions. The present Securitization Application is therefore liable to be dismissed with exemplary costs.
x.That the contents of paragraph (xiii) of the reply are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that no cause of action arose in favour of the Applicant.
xi.That the contents of paragraph (xiv) of the reply are denied, and the contents of the corresponding paragraph of the application are reiterated as correct.
xii.That the contents of paragraph (xv) of the reply are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the Securitization Application (S.A.) is a malafide attempt of the Applicants to deprive the Answering Respondent of its statutory right to recover the debt under the SARFAESI Act, 2002. The Applicants have produced wrong and baseless facts before this Hon'ble Tribunal in order to wrongfully obtain relief from this Court, and have failed to produce any substantial evidence in support of their contentions. The present Securitization Application is therefore liable to be dismissed with exemplary costs.
xiii.That the contents of paragraph (xvi) of the reply need no replication, and the contents of the corresponding paragraph of the application are reiterated as correct.
REPLICATION TO THE REPLY TO GROUNDS
A.That the contents of paragraph (I) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the Respondent is fully aware of its duties and responsibilities as a Financial Institution and strictly adheres to them in consonance with the applicable rules, guidelines and laws. It is further denied that the Respondent does not ignore or violate any applicable provision of law and has always upheld the law of the land. It is further denied that the Respondent has complied with each and every mandatory provision of the SARFAESI Act, 2002. It is further denied that no act or omission of the Answering Respondent has caused any loss, mental agony, tension or harassment whatsoever to the Applicants. It is further denied that the Applicants were in complete knowledge of the liabilities of the borrower, and that merely disputing facts which are apparent on the face of the record is only an attempt to escape the liability of the borrower.
It is further denied that the officials of the Respondent visited the house of the Applicant and obtained the signature of the Applicant on the kit.
B.That the contents of paragraph (II) of the reply to grounds need no replication, and the contents of the corresponding paragraph of the application are reiterated as correct.
C.That the contents of paragraph (III) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the acts or omissions initiated by the Answering Respondent or its officers were completely legal in nature and in accordance with law. It is further denied that the Respondent is fully aware of its duties and responsibilities as a Financial Institution and strictly adheres to them in consonance with the applicable rules, guidelines and laws. It is further denied that the Respondent does not ignore or violate any applicable provision of law and has always upheld the law of the land. It is further denied that the Respondent has complied with each and every mandatory provision of the SARFAESI Act, 2002. It is further denied that the Respondent rightfully approached the Hon'ble Court of the Court of the Ld. CMM before which the Section 14 application was filed and obtained the impugned order dated Date of CMM order under Section 14 passed by the Ld. CMM under Section 14 of the SARFAESI Act, 2002 to take over possession of the Secured Asset, i.e., Description of the Secured Asset.
D.That the contents of paragraph (IV) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the officials of the Respondent visited the house of the Applicant and obtained the signature of the Applicant on the kit. It is further denied that the Respondent rightfully approached the Hon'ble Court of the Court of the Ld. CMM before which the Section 14 application was filed and obtained the impugned order dated Date of CMM order under Section 14 passed by the Ld. CMM under Section 14 of the SARFAESI Act, 2002 to take over possession of the Secured Asset, i.e., Description of the Secured Asset.
E.That the contents of paragraph (V) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct.
F.That the contents of paragraphs (VI) to (VII) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraphs of the application are reiterated as correct. It is denied that the Respondent rightfully approached the Hon'ble Court of the Court of the Ld. CMM before which the Section 14 application was filed and obtained the impugned order dated Date of CMM order under Section 14 passed by the Ld. CMM under Section 14 of the SARFAESI Act, 2002 to take over possession of the Secured Asset, i.e., Description of the Secured Asset.
G.That the contents of paragraph (VIII) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the Applicants have made false, concocted and defamatory allegations against the Respondent with the sole intention of depriving the Respondent of its statutory right under the SARFAESI Act to take possession of the mortgaged property.
H.That the contents of paragraph (IX) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct.
I.That the contents of paragraph (X) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct.
J.That the contents of paragraph (XI) of the reply to grounds are wrong and denied, and the contents of the corresponding paragraph of the application are reiterated as correct. It is denied that the Securitization Application (S.A.) is a malafide attempt of the Applicants to deprive the Respondent of its statutory right to recover the debt under the SARFAESI Act, 2002. The Applicants have produced wrong and baseless facts before this Hon'ble Tribunal in order to wrongfully obtain relief from this Court, and have failed to produce any substantial evidence in support of their contentions. The present Securitization Application is therefore liable to be dismissed with exemplary costs.
6.That the contents of paragraph 6 of the reply on prayer are wrong and are hereby denied, and the contents of the corresponding paragraph of the Securitization Application are reiterated as correct. It is specifically denied that the relief prayed for by the Applicant is not maintainable, or that the Applicant has not approached this Hon'ble Tribunal with clean hands, or that the Applicant has misled this Hon'ble Tribunal by placing false and incorrect submissions on record. The relief prayed for by the Applicant is therefore liable to be allowed, with exemplary costs.
7.That the contents of paragraph 7 of the reply require no replication, and the contents of the corresponding paragraph of the Securitization Application are reiterated as correct.
8.That the contents of paragraph 8 of the reply require no replication, and the contents of the corresponding paragraph of the Securitization Application are reiterated as correct.
The contents of the prayer paragraph of the written statement are absolutely wrong and are specifically denied. The Respondent is not entitled to the relief claimed therein.
Any allegation made in the written statement which is not specifically denied herein is deemed to have been denied absolutely and specifically, and the absence of a specific denial shall not be construed as an admission on the part of the Applicant.
PRAYER:-
It is, therefore, most respectfully prayed that this Hon'ble Tribunal may kindly be pleased to allow the Securitization Application in favour of the Applicant and against the Respondent, as prayed for in the Securitization Application, in the interests of justice, equity and in the facts and circumstances of the case.
Pass such further order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case, in the interests of justice.
It is, therefore, most respectfully prayed accordingly.
Place of signingAPPLICANT
THROUGH
Name of Advocate
DATED:
Date of signing-------------------------
ADVOCATE
Mob. No. Advocate's mobile number
Email: Advocate's email address
BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL-II;
AT City of the Tribunal.
TSA NO. TSA number OF Year of the TSA number.
IN THE MATTER OF:-
Applicant's name: APPLICANT
VERSUS
Respondent's name.: RESPONDENT
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name Deponent's surname, R/o Deponent's address, do hereby solemnly affirm and declare as under:-
1.That I am the Applicant in the captioned proceedings and am, therefore, competent to swear this affidavit.
2.That the contents of the accompanying replication to the reply have been read over and explained to me in vernacular language, and having understood the same, I state that the facts stated therein are true to the best of my knowledge and belief and nothing material has been concealed therefrom. The facts stated in this affidavit are true to my knowledge, no part thereof is false and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:-
Verified at Place of verification on this Date of verification, day of Month of verification, Year of verification, that the facts stated in the above affidavit are true to my knowledge, no part thereof is false and nothing material has been concealed therefrom.
DEPONENT