Dismissed

Shafi Adattil v. Can Fin Homes Ltd.

DRT13 Jul 2023RA/5/2023

Case brief

AI extract

What is this about?

This tribunal dismissed a review petition filed under Order 47 Rule 1 CPC challenging an order dismissing an affirmative relief application in a SARFAESI matter. The court held the petitioner's own passport copy disproved his claim that he was abroad when the demand notice was served, concluding the petition was devoid of merits.

What did the court decide?

The review petition No.5/2023 was dismissed as it was found to be devoid of merits and the petitioner did not approach the Tribunal with clean hands.

Shafi Adattil versus Can Fin Homes Ltd. — Insolvency and Bankruptcy | DRT (2023)

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Fair Order

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IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

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DATED THIS 13^th DAY OF JULY, 2023

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER

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RP No.5/2023 in SA No.72/2023

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Between

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Mr. Shafi Adattil, S/o. Abdul Rahman, A1 Mas, Pookad, Chemanchery, Kozhikode – 673 304.

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--- Petitioner/Applicant

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And

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Can Fin Homes Ltd. KT Commercial Complex, First Floor, Jail Road, Puthiyara, Kozhikode, Kerala – 673004, Represented by its Authorised Officer

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--- Respondent/Defendant

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This review petition coming on 12.07.2023 for hearing before me in the presence of Mr. Bijumon E. A., Advocate for the Petitioner/Applicant and Mr. C. Ajith Kumar, Advocate for the Respondent/Defendant and upon hearing arguments of learned counsels for the parties and upon perusing the material records, this Tribunal delivered the following:

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RA No.5/2023 in SA No.72/2023

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O R D E R

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RA No.5/2023 in SA No.72/2023 :- This review petition has been filed praying to review the final order dated 24.05.2023.

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The review petitioner filed SA No.72/2023 praying to set aside Annexure – A6 Advocate Commissioner notice, Annexure – A8 Section 13(2) notice under SARFAESI Act and Annexure – A9 possession notice. This Tribunal after having heard both sides’ counsels, dismissed the above SA on 24.05.2023.

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The counsel appearing for the review petitioner drew the attention of this Tribunal to the Para 6 of its order submitting that this Tribunal has observed that the demand notice sent to the applicant and the co-borrower was returned unserved and that Annexure – B2 demand notice produced by the defendant contains signature of the applicant and co-borrower and therefore this Tribunal rejected the contention of the applicant that the demand notice was not served to him. The counsel for the review petitioner further submitted that at the time of issuance of the demand notice, the petitioner was not in India and that he had been abroad and that therefore, he could not have signed for receipt of the demand notice and that he filed memo alongwith copy of Passport of the petitioner to show that he had been abroad on the date of issuance of the demand notice and that this Tribunal did not give any finding in respect of the memo and the contents of the copy of the passport.

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The Counsel appearing for the respondent submitted that this review petition is not at all maintainable since there is no error apparent on the fact of the record and that this Tribunal has rightly rejected the contention of the applicant that demand notice was not served to him. The counsel for the respondent also cited three judgments of the Hon’ble Supreme Court in support of his above submission.

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This review petition has been filed by the petitioner seeking to consider the contention of the petitioner/applicant that since the demand notice was not served to him, Annexure – A6 Advocate Commissioner's notice and Annexure – A8 Section 13(2) notice and Annexure – A9 possession notice are liable to be set aside.

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The argument of both sides’ counsels was heard on 19.04.2023. The counsel appearing for the petitioner did not advance argument that at the time of issuance of the demand notice, the review petitioner had been abroad. There is also no specific plea raised in the SA in this regard. However, the counsel for the review petitioner filed a memo alongwith

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Page 2 of 3

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RA No.5/2023 in SA No.72/2023

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photocopy of passport of the petitioner stating that the passport would prove that the review petitioner was not in station on the alleged date of receipt of demand notice by him and his wife. Since his memo was filed only on 23.05.2023 just one day prior to passing of order in SA on 24.05.2023 this Tribunal had no occasion to refer to the memo in its order dated 24.05.2023. It is pertinent to mention that there is no proof for the service of copy of the memo to the counsel for the respondent. In any event, a perusal of the copy of the passport of the review petitioner would reveal the fact that the review petitioner left India only on 09.07.2019. Therefore it goes without saying that he had been in India till 08.07.2019. Hence, his own document belies and disproves his averment that he was out of station on the date of service of demand notice. The review petitioner has not approached this Tribunal with clean hands. There are no valid reasons and merits to review the order of this Tribunal dismissing the SA No.72/2023 on 24.05.2023.

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In view of the forgoing reasons, this review petition No.5/2023 which is devoid of merits, stands dismissed.

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Dictated to Steno, taken down, transcribed, typed by her, corrected and pronounced by me in the Open Court, on this the 13^th day of July, 2023.

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[Su. WILLYAHM] PRESIDING OFFICER

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Page 3 of 3

Shafi Adattil v. Can Fin Homes Ltd.

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Shafi Adattil v. Can Fin Homes Ltd.

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