Dismissed

K Periasamy v. Indian Bank

DRAT5 Jul 2023REGULAR APPEAL/126/2019

Case brief

AI extract

What is this about?

Debt Recovery Appellate Tribunal dismissed an appeal challenging a lower tribunal's rejection of a securitisation application. The court held that a Sale Certificate is a ministerial, consequential act not challengeable under Section 17 of the SARFAESI Act, as the statutory measures had not been appealed within the limitation period.

What did the court decide?

Appeal dismissed; lower tribunal's order of 27.02.2019 affirmed.

K Periasamy versus Indian Bank — Banking and Recovery | DRAT (2023)

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RA (SA) 126/2019

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 5^th of July, 2023

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar

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CHAIRPERSON

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RA (SA) 126/2019

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[SA 346/2017 on the file of DRT, Madurai]

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Between

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Mr. K. Periasamy, S/o A. Karuppannasamy, No.127, Brinda Illam, Vaiyapuri Nagar,

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2^nd Cross, Karur-2. ……Appellant

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And

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The Authorised Officer,

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Indian Bank, Circle Office, No.5F, Bharathiar Salai, Jenne Plaza, 3^rd Floor, Contonment, Trichirapalli – 620 001.

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K. Nallammal, W/o Karuppannasamy,

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No.2 G, Thoranakkalpatty Village, Karattupalayam, Karur.

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K. Jamruth, W/o B.E. Kasim, No.50, Thiruvalluvar Street, R.M.S. Colony, Yedamalaipattypudur, Trichy – 620 012.

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S. Kuppusamy, S/o N. Selvam, Panduthakaranpudur, Sukaliyur (P.O.), Karur- 3.

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….. Respondent Counsel for Appellant : M/s. S.D.S. Phillip Counsel for Respondent No.1 : Mr. S. Rengasamy Counsel for Respondent No.4 : M/s. S. Bhargavan

RA (SA) 126/2019

ORDER

1. This Appeal is against Order dated 27.02.2019 of DRT, Madurai, in SA 346/2017.

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2. Brief facts leading to this Appeal are as follows:-

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Appellant herein filed SA 346/2017 to set aside and declare the Sale Certificate issued in favour of Respondents

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2 and 3 in pursuance of Sale Notice dated 29.04.2009 as

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null and void and that Appellant is entitled for possession of Schedule properties by restoring the same.

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First Respondent resisted Application on various grounds.

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On a consideration of contentions and rival contentions

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of both parties, Tribunal below dismissed said Securitisation

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Application, aggrieved by which, present Appeal is preferred.

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RA (SA) 126/2019

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3. Advocate for Appellant filed Written Arguments and

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reiterated the same at the time of oral submissions.

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4. Advocate for first Respondent submitted arguments refuting the submissions of Appellant’s Advocate. Main contention of Appellant is that Order of Tribunal below is contrary to law, and contrary to provisions of SARFAESI Act, 2002. Advocate for Appellant mainly contended that Tribunal below erred in holding that Appellant cannot challenge the correctness of Sale Certificate having not challenged Sale Notice dated 29.04.2009. He further submitted Tribunal below also erred in holding that Appellant cannot raise contentions concerning correctness of Valuation Report and reserve price having not challenged Sale Notice dated 29.04.2009. He submitted, the main contention of Appellant is that reserve price fixed for two items of property brought for sale, are apparently incorrect. He submitted, for a larger extent, less reserve price is fixed,

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RA (SA) 126/2019

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and that itself, is sufficient to accept the contentions of Appellant.

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5. On the other hand, Advocate for first Respondent submitted, the correctness of valuation and reserve price, would become relevant, if Sale is challenged, and submitted, time limit to challenge the Sale is already over by the date of filing SA, and now only, the correctness of Sale Certificate is challenged, which is not available under Section 17 of SARFAESI Act, 2002. He submitted, under Section 17 of SARFAESI Act, 2002, only measures can be challenged and issuance of Sale Certificate or its Registration, is not a ‘measure’, therefore, the very Securitisation Application is not maintainable. It is submitted, Tribunal below rightly dismissed Securitisation Application, and there are no grounds to interfere with the same.

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RA (SA) 126/2019

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6. I have perused the material papers, impugned Order

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and Written Submissions of Appellant.

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7. Entire Written Submissions is about the merits of the case, namely finding fault with Section 13(4) Notice, finding fault with Sale Notice and finding fault with the conduct of Sale. But, Securitisation Application is not filed challenging these measures. In fact, in the grounds of Appeal, Appellant contended that Appellant is taking appropriate steps for setting aside the Sale. When such is the stand of Appellant, the points relevant in conduct of Sale, cannot be agitated here. Further, as rightly pointed out by Advocate for first Respondent, time limit for challenging Possession Notice, Sale Notice, and Sale, is already over, and under the guise of this Securitisation Application, Appellant wants to raise contentions in respect of time barred reliefs, which cannot be permitted.

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RA (SA) 126/2019

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8. As already referred to above, the main relief in Securitisation Application is to set aside the Sale Certificate issued in favour of Respondents 2 and 3. It is not in dispute that Respondent No.2 is none other than the mother of Appellant. When Appellant contended that he is taking steps to challenge the Sale, and if he succeeds in that, Sale Certificate will automatically go. Further, under Section 17 of SARFAESI Act, 2002, only measures can be challenged, and issuance of Sale Certificate or Registration of Sale Certificate, is not a ‘measure’ under Section 13(4) of SARFAESI Act, 2002. Measures indicated under Section 13(4) of SARFAESI Act, 2002, are, taking possession of secured asset, selling secured asset, leasing secured asset, etc. When secured asset was brought for Sale, and sold in public auction, issuance of Sale Certificate is only a consequential to Sale. In fact, it is settled proposition of law, issuance of Sale Certificate is only a ministerial act. It is also settled proposition of law, without challenging main action, a party cannot be permitted to challenge only consequential action. Tribunal below has elaborately

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RA (SA) 126/2019

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considered the contentions and rival contentions of both

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parties. Appellant, except reiterating the same contentions, has not brought any material to show that the relief claimed in Securitisation Application falls within ‘measures’ pointed out in Section 17 of SARFAESI Act, 2002.

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9. One of the contentions raised on behalf of Appellant is

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that Tribunal below erred in saying that Appellant is not an aggrieved party, because the mistakes in Sale Certificate is in no way concerned with Appellant, and the aggrieved party would be Auction Purchasers, namely Respondents 2 and 3. I do not find any wrong in the findings of Tribunal below, because Respondents 2 and 3, who are the Auction Purchasers, have never raised any objection as to the correctness of particulars or details mentioned in Sale Certificate. If really there are any wrong particulars or details in Sale Certificate, affected parties would be the Auction Purchasers, but not the Appellant. So, viewed in

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RA (SA) 126/2019

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any angle, the contentions of Appellant are not acceptable,

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and there are no merits in the Appeal.

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10. In view of foregoing observations and discussions, it is held that Tribunal below rightly dismissed the Securitisation Application and there are no grounds to interfere with the well reasoned Order dated 27.02.2019.

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11. In the result, Appeal RA (SA) 126/2019 is dismissed. Both parties shall bear their own costs. All pending IAs, if any, stand closed.

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[Dictated to Athistamani, PS, transcribed by her, corrected, signed and pronounced by me in open court, this 5^th of July, 2023]

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[ Justice S. Ravi Kumar]

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K Periasamy v. Indian Bank

Case brief

What is this about?

What did the court decide?

K Periasamy v. Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

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