Dismissed

Woodmall Furniture v. South Indian Bank

DRT4 Sept 2023SA/12/2022

Case brief

AI extract

What is this about?

In a Securitisation Application, the Kerala Debt Recovery Tribunal dismissed the petitioners' challenge to the bank's action. The chairperson held that notices were served legally before the death of a guarantor co-applicant. Consequently, proceedings were not abated, and the order appointing an Advocate Commissioner for possession was legally sustainable.

What did the court decide?

Principal relief sought for illegally taking possession and awarding compensation was rejected.

Woodmall Furniture versus South Indian Bank — Execution and Attachment | 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 4^th DAY OF SEPTEMBER, 2023

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

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S.A No. 12 of 2022

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Between

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M/s Woodmall Furniture,

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Rep by its partners, CP: 4/72

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A to H, Kurukkolkunnu

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Vailathur, Cheriyamundam P.O.

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Abdul Nazar T., Partner of M/s Woodmall Furniture, Residing at Thazhethil House,

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Ponmundam P.O., Vailathur, Malappuram-676 106.

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Shamsudheen,

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Partner of M/s Woodmall Furniture, Residing at Thazhethil House,

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Ponmundam P.O.,

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Vailathur, Malappuram-676 106.

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Mohamed Rashid,

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Partner of M/s Woodmall Furniture, Kuriyodath House,

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Ponmundam P.O.,

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Vailathur, Malappuram-676 106.

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Kadiyamu Umma, Residing at Thazhethil House, Ponmundam P.O.,

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Vailathur, Malappuram-676 106.

--- Applicants

SA No.12 of 2022

And

The Authorized Officer, South Indian Bank Ltd., Regional Office Kozhikode, First Floor, Happy Towers, Vaikkom Mohammed Basheer Road, Mananchira P.O., Kozhikode – 673001.

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--- Defendant

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This Securitization Application coming on 04.07.2023 for final hearing before me in the presence of Mr. Jithendran, Advocate representing the Counsel on record for the Applicants and Ms.Devayani, Advocate for the Defendant and upon hearing arguments of learned Counsels for both the parties and upon perusing the material on records, this Tribunal delivered the following:

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O R D E R

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This Securitisation Application was filed on 10.01.2022 seeking to hold that the possession of secured assets of the applicants by the defendant Bank is illegal and to set aside all the steps taken by the defendant Bank under the SARFAESI Act, and order payment of compensation to the applicants for the losses sustained by the illegal act of the defendant Bank.

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The averments of the applicants in the SA in brief are as follows:

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The 1^st applicant is a partnership firm. Applicants 2 to 4 are the partners of the firm. 1^st applicant is dealing with import business of timber from Burma and African countries. 1^st applicant availed cash credit facility from defendant bank. For availing the loan, 5^th applicant mortgaged her land of 26.90 cents along with residential building measuring 1700 sq. ft. in Sy. No.182/4 in Cheriyamundam village, Tirur Taluk, Malappuram District.

¶33

The prime security for the loan is the company’s hypothecation of stock of the company in favour of the defendant Bank. Burma Government banned of the Timber export from their country. Due to this, applicants were facing some financial difficulties. The applicants had gone through lot of financial crisis after demonetization and introduction of GST. But in view of the outburst of Corona virus, the National Disaster Management Authority (NDMA) implemented

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Page 2 of 12

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SA No.12 of 2022

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lockdown measures. In this present scenario, the business of the applicants was badly affected. During this time, the applicants could not properly repay the instalments to the defendant bank. The defendant pasted the possession notice, Annexure-A1 in the building on 03.12.2021 under Section 13(4) of the SARFAESI Act, 2002. Though in Annexure-A1 it is stated that on 5.7.2021, a demand notice was issued to the applicants but demand notice was not received. Immediately after the receipt of the notice, applicants approached defendant bank and stated the circumstances that led to the default in making payment. No possession notices were issued to the applicants. Annexure-A1 notice was pasted in violation of the provisions of the requirements of the SARFAESI Act, 2002, 1^st applicant is the principal borrower and no actions has been taken against it. The applicants are not wilful defaulters. The applicants are entitled to get the benefit under the scheme and guidelines issued by the Reserve Bank of India.

¶37

The defendant Bank approached the Chief Judicial Magistrate Court Manjeri by filing Crl. M.P. No.1908/2022, Annexure-A2 and affidavit, Annexure-A3 under Section 14 of the SARFAESI Act, for assistance of the court in taking possession of the properties scheduled therein. Chief Judicial Magistrate Court appointed an Advocate Commissioner to take possession of the applicants property. True copy of the Order dated 28.6.2022 by the Chief Judicial Magistrate Court Manjeri is produced as Annexure-A4. On 26.7.2022 Advocate Commissioner issued notice Annexure-A5 stating that he will be present in the secured asset and directed the applicants to be present at the time of inspection. On 16.2.2023 Advocate Commissioner issued notice, Annexure-A7 stating that he will be taking possession of the property on 21.3.2023.

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Having aggrieved by the action taken by the defendant by invoking under Section 13(4) of the SARFAESI Act, 2002 this appeal is being filed.

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The defendant came on record and filed Written Statement interalia contending as follows :

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The averments in S.A save those expressly admitted hereunder are all denied. The applicants have deliberately suppressed material facts with the intention to mislead this Hon'ble Tribunal.

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The 1^st applicant firm availed the following facilities from the branch of the South Indian bank Ltd (hereinafter ‘the bank’ ):- (i) Cash Credit GENERAL (CCOL) (0596083000000009) of Rs.1,30,00,000/-

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Page 3 of 12

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SA No.12 of 2022

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(ii) FSL-GEN NON EMI CPMPOUND (059665600000015) (ECGLS) of Rs.28,00,000/(iii) FSL-GEN NON EMI CPMPOUND (0596656000000025) (FITL) of Rs.7,50,000/-. The applicant Nos.2 to 5 were the guarantors to the aforesaid facilities. The said facilities were secured by hypothecation of current assets including stock, raw materials, assets etc of the 1^st applicant. The said credit facilities were further secured by equitable mortgage of land admeasuring 26.90 cents (10.89 Ares) along with residential building admeasuring 1700 sq.ft. (approximately) and all other usufructs and improvements thereon in Sy. No.182/4 situated in Cheriyamundam Villalge, Tirur Taluk, Malappuram district owned by applicant No.5 and more particularly described in Partition Deed No.1363/2007, Tirur SRO dated 07.04.2007.

¶45

Consequent to the default committed by the applicants, the loan accounts were classified as NPA on 30.04.2021. Demand notice dated 06.07.2021 produced as Annexure-B1 was received by the applicants. True copies of the postal receipts and postal track reports thereof are produced as Annexure-B1(a). The applicants did not submit any representations/objections against the said demand notices. Since the applicants failed to clear the liability, the authorized officer proceeded with issuance of possession notice on 03.12.2021, Annexure-B2. True copy of acknowledgment cards are produced as Annexure-B2(a). the possession notice was published in the Mathrubhumi, Malapuram edition and the New Indian Express, Malapuram Edition, AnnexureB2(b), papers having sufficient circulation in that locality, on 07.12.2021. The said possession notice was also affixed conspicuously in the secured asset. True copies of the photographs evidencing affixture is produced as Annexure-B2(c). The security interest is registered with CERSAI under security interest ID Nos.18800000. True copy of the CERSAI registration is produced as Annexure-B3.

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The contention that demand notice was not received is false and hence denied. The contention that proceedings are not initiated against principal debtor etc is misplaced and misconceived in the context of securitization measures. The allegation that actions taken by the Defendant against applicants are in violation of SARFAESI rules as well as norms and guidelines issued by the Reserve Bank of India is not correct and hence denied. Demand notice was also received by the applicants. The same is suppressed by the applicants herein to mislead this Hon'ble Tribunal. The possession notice was served, affixed and published in accordance with the Rules. The applicants are not entitled to the relief prayed for. This Hon'ble Tribunal may be pleased to dismiss the above S.A with costs.

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Page 4 of 12

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SA No.12 of 2022

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The defendant filed additional Written Statement dated 20.06.2023 contending as follows :

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The defendant Bank proceeded with further measures and initiated Sec.14 proceedings as Crl. M.P. No.1908 of 2022. Pursuant to the same, the applicants filed an amendment petition as I.A. No.1711 of 2022 along with stay petition as I.A No.1772 of 2022. This Hon'ble Tribunal was pleased to grant a conditional stay till 21.10.2022 with respect to the petition schedule mentioned property, subject to payment of Rs.21,89,350/- directly to the respondent on or before 22.09.2022 as 1^st instalment and another sum of Rs.21,89,350/- directly to the respondent on or before 21.10.2022 as 2^nd instalment. On 03.04.2023, it was recorded that the conditions was not complied by the applicants.

¶51

The CJM Court by Annexure-A4 order dated 28.06.2022 had appointed the Advocate Commissioner to take physical possession of the secured property. The Section 14 proceedings are in accordance with the provisions of the SARFAESI Act and the Rules there under. The Sec.14 petition (Annexure-A2) is duly supported by an affidavit (Annexure-A3), which is compliant with the requirements under the 1^st proviso to Section 14. The securitisation measures initiated are in accordance with the provisions of the Act and the Rules thereunder.

¶52

The death of the 5^th applicant cannot invalidate the said proceedings, since the legal heirs only have to step into the shoes of the 5^th applicant. The above SA is liable to be dismissed with costs.

¶53

The point arising for consideration is as to whether the applicants are entitled to get the reliefs sought for in this S.A.

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Point: Availment of various credit facilities by the 1^st applicant firm from the defendant Bank and applicants 2 to 5 being the guarantors to the aforesaid credit facilities upon hypothecation of current assets including stock, raw materials, assets etc. of the 1^st applicant Firm and also upon creation of security interest by equitable mortgage of land admeasuring 26.90 cents (10.89 Ares) along with residential building admeasuring 1700 sq. ft. (approximately) and all other usufructs and improvements thereon in Sy. No.182/4 situated in Cheriyamundam villalge, Tirur Taluk, Malappuram district owned by applicant No.5 is admitted by the applicants in the SA.

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The default in repayment of the outstanding loan due is also admitted by the applicants in the SA, hence the loan account of the applicants came to be classified as NPA on 30.4.2021. Demand notice

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Page 5 of 12

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SA No.12 of 2022

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dated 6.7.2021, Annexure-B1 was served to the applicants calling upon them to repay the outstanding loan due within 60 days from the date of receipt of the notice. The defendant has produced AnnexureB1 (a) true copies of postal receipts and postal track reports to show that the demand notice was served to the applicants. Hence the contention of the applicants that demand notice was not received by them does not hold good. Admittedly, the applicants did not respond to the terms of the demand notice and they also did not send any objection/ representation to the demand notice.

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Hence the defendant was constrained to issue possession notice dated 3.12.2021 Annexure-B2, in respect of the secured asset. The defendant has produced Annexure-B2 (a) true copies of acknowledgment cards to prove his contention that possession notice was served to the applicants. Hence the averment of the applicants that no possession notices were not served to them does not hold good.

¶60

The defendant has produced true copies of paper publications in respect of possession notice in Mathrubhoomi, Malappuram edition and the New Indian Express, Malappuram edition, as Annexure-B2(b) to prove his contention that possession notice was published in two leading newspapers having wide circulation in Malappuram district. A perusal of Annexure-B2(c) photographs shows that the possession notice was affixed on the conspicuous part of the secured asset. Hence the averment of the applicants in the SA that possession notice was pasted in violation of the provisions of SARFAESI Act, 2002 is liable to be rejected.

¶61

On application Annexure-A2 along with the affidavit, AnnexureA3 filed by the defendant before the Chief Judicial Magistrate Court, Manjeri, Order dated 28.6.2022, Annexure-A4 came to be passed in Crl. M.P. No.1908/2022 appointing Advocate Commissioner for taking physical possession of the secured asset. Pursuant to the above order the Advocate Commissioner issued Annexure-A5 notice dated 05.08.2022 to the applicants informing them that he would visit the secured asset on 26.07.2022. The applicants filed IA No.1712/2022 seeking to stay all further proceedings pursuant to Annexure-A5 Advocate Commissioner notice. This Tribunal after having heard both sides’ Counsels granted ad-interim stay subject to payment of a sum of Rs.21,89,350/- each in two instalments within the stipulated period. Admittedly, the applicants did not comply with the above conditional order in letter and spirit. Hence subsequently the Advocate Commissioner issued another notice dated 16.02.2023, Annexure-A7

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Page 6 of 12

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SA No.12 of 2022

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to the applicants informing them that he would take possession of the secured asset on 21.3.2023.

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The applicants have produced true copy of death certificate, Annexure-A6 stating that 5^th applicant died on 29.09.2022.

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The representing Counsel for the Counsel on record for the applicants submitted that even though there are two secured assets, defendant has proceeded against the second item of the properties which is the residential house and that the defendant has not impleaded the legal heirs and that Section 14 measures were initiated at the time when the 5^th applicant was dead and that therefore the order Annexure-A4 passed under Section 14 of the SARFAESI Act, 2002 stood abated against the 5^th applicant and that in Annexure-A2 affidavit all the details with regard to the loan are not stated and that therefore order Annexure-A4 is liable to be set aside.

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The Counsel appearing for the defendant submitted that all the details as required under Section 14(1) of the SARFAESI Act, 2002 have been stated in the affidavit, Annexure-A3, and that 5^th applicant died only on 29.09.2022 and that but Annexure-A4 order was passed on 28.06.2022 prior to the death of the 5^th applicant and that Annexure-A4 order was not abated and that therefore the death of 5^th applicant cannot invalidate the proceedings of Annexure-A4 order and that the other applicants have failed to bring the legal heirs of the 5^th applicant on record in the SA and that on this ground alone this SA is not maintainable and that the conditional order passed by this Tribunal while granting ad-interim stay in IA No.1772/2022 was not complied with by the petitioners and that therefore the SA is liable to be dismissed with cost.

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It is not in dispute that the secured asset which is shown as Schedule-B in the demand notice, Annexure-B1, comprises of land admeasuring 26.90 cents and the residential building admeasuring 1700 sq.ft. Thus it is evident that both the land and the building situated therein have been jointly secured by way of deposit of title deeds and that there are no first and second items of the secured assets as submitted by the side of the applicants. In any event, the provisions of Section 13(4) of the SARFAESI Act, 2002 confers power upon the secured creditor to take possession of the secured assets of the borrower, whether it is a residential property or non residential property. Hence this Tribunal does not find any force in the submission of the representing Counsel for the applicants and that even though there are two secured assets, the defendants have

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Page 7 of 12

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SA No.12 of 2022

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proceeded only against the second item of the properties which is the residential house.

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In S.Suhaina Banu and others vs. Indian Bank and others [W.P. No.27230 of 2009 of the Hon’ble High Court of Madras] relied on by the side of the applicants, the facts of the case is in a nutshell as follows : The respondents 3 to 5 had availed credit facility from the respondent Bank by offering the subject property of the deceased guarantor as security. As the borrower defaulted in repayment, the respondent Bank initiated proceedings under the SARFAESI Act, 2002 and issued demand notice to both the guarantors and the same was served. Subsequently, the mother of the petitioners died on 23.11.2008. As the terms of the demand notice was not complied with by her, the respondent Bank affixed possession notice in the property. The notice was issued showing the name of the deceased as the owner of the property and not in the name of the petitioners therein. The respondent Bank thereafter approached the Chief Metropolitan Magistrate, Egmore, Chennai by filing application under Section 14(1) of the SARFAESI Act, 2002 and the same was ordered on 26.8.2009 by appointing Advocate Commissioner to take physical possession of the properly. The above proceedings were challenged by way of writ petition by the petitioners before the Hon’ble High Court of Madras.

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The Hon’ble High Court of Madras after having heard both sides’ Counsels held as follows:

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“The object of provisions of Section 13(2) of the SARFAESI Act, 2002 is mainly to require the borrower/ guarantor by notice in writing to discharge in full his liabilities to the secured creditor, failing which the secured creditor shall be entitled to exercise all or any of the rights under Section 13(4) of the SARFAESI Act, 2002. The proceedings initiated against a person while he was alive would automatically stand abated immediately after his/her demise and that the only course open to the respondent Bank is to initiate proceedings by issuance of fresh notice to the legal heirs of the borrower/ guarantor, as the legal heirs of borrower/guarantor will have an opportunity to discharge their liability in 60 days. Affixture of possession notice by showing the name of the deceased guarantor as the owner of the property cannot be sustained on the facts of the case, as the notice was neither delivered on the legal heirs nor was affixed showing the names of the legal heirs on the conspicuous place of the property and that therefore the

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Page 8 of 12

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SA No.12 of 2022

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respondent Bank has not complied with the provisions of Section 13(4) of the SARFAESI Act, 2002”.

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The facts of the present case before us are entirely different from the facts of the case discussed in the above cited judgment. Demand notice Annexure-B1 was served to all the applicants including the deceased 5^th applicant and it was received by her as evidenced from the perusal of copy of postal track consignment, Annexure-B1(a). Possession notice, Annexure-B2 was also served to the deceased 5^th applicant as evidenced from the perusal of Annexure-B2(a), true copy of postal acknowledgment card. Annexure-A2 petition and AnnexureA3 affidavit were filed by the defendant before the Chief Judicial Magistrate Court, Manjeri on 22.6.2022. Annexure-A4 Order was passed by the Chief Judicial Magistrate Court, Manjeri on 28.6.2022. First Advocate Commission notice, Annexure-A5, was issued on 26.7.2022. The date of death of the 5^th applicant is 17.3.2023 as per Annexure-A6 copy of death certificate produced by the applicants. Thus it is evident that on the date of issuance of Annexure-B1 demand notice and Annexure-B2 possession notice, on the date of filing Annexure-A2 and A3 before the Chief Judicial Magistrate Court, Manjeri, on the date of passing Annexure-A4 order and on the date of issuance of Annexure-A5 Advocate Commissioner notice, the 5^th applicant was alive. Therefore, the measures initiated by the defendants under Section 13(4) of the SARFAESI Act, 2002 and the measures under Section 14 of the SARFAESI Act, 2002 are legally sustainable not only against the applicants 1 to 4 but also against the deceased 5^th applicant.

¶79

The Advocate Commissioner issued another notice, AnnexureA7 on 16.2.2023. Admittedly, it was issued after the death of the 5^th applicant. It is not either the case or the contention of the applicants 1 to 4 that the death of the 5^th applicant was duly intimated in writing to the defendant. When such intimation was not sent to the defendant there is no possibility for the defendant to approach the Chief Judicial Magistrate Court, Manjeri seeking to direct the Advocate Commissioner to issue notice to the legal heirs of the deceased 5^th applicant.

¶80

The provisions of Order 22 Rule 3 of the Civil Procedure Code 1908, reads as follows:

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“ 3. Procedure in case of death of one of several plaintiffs or of so plaintiff – (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies

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Page 9 of 12

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SA No.12 of 2022

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and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

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(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.”

¶86

In the present case, even though the 5^th applicant died as early as on 17.3.2023 no step was taken by the contesting applicants to implead the legal heirs of the 5^th applicant on record in the SA. It is pertinent to mention herein that the secured asset which physical possession is to be taken belongs to the 5^th applicant as averred in the SA. If it is so, the legal heirs of the 5^th applicant ought to have been impleaded in the SA without any delay. No reason or explanation has been tendered by the contesting applicants as to why the legal heirs of the 5^th applicant have not been impleaded in the SA. As per the above said provisions of Order 22 Rule 3 of the Civil Procedure Code, this SA itself shall stand abated as against the 5^th applicant. Hence the contention of the applicants 1 to 4 in the amended SA that since the 5^th applicant died on 29.9.2022 and the property was mortgaged by her, and her legal heirs were not impleaded, the proceedings against the dead person is illegal is devoid of merits.

¶87

It is seen from the perusal of Annexure-A2 petition and Annexure-A3 affidavit filed under Section 14 of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court, Manjeri that all the details as required under Section 14(1) (i) to (ix) of SARFAESI Act, 2002 such as availment of credit facilities by the 1^st applicant Firm, applicants 2 to 5 being the guarantors to the aforesaid credit facilities, creation of security interest over the immovable property by the 5^th applicant by deposit of title deed, default in repayment of outstanding loan due, classification of loan account as NPA on 30.04.2021, issuance of demand notice and service of the same to the applicants, failure of the applicants either to send reply or to repay the outstanding loan due, issuance of possession notice to the applicants, publication of possession notice in two leading news papers, the outstanding loan due as on the date of filing of the petition, registration of the security interest with CERSAI, the description of the secured assets both movable and immovable property, are clearly stated in the affidavit, Annexure-A3. It is seen from the perusal of

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Page 10 of 12

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SA No.12 of 2022

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Annexure-A4 order passed in Crl. M.P No.1908/2022 that the Ld. Chief Judicial Magistrate, Manjeri after having perused the petition and the affidavit and the documents passed order for taking physical possession of the secured asset. This Tribunal does not find any infirmity either in the affidavit, Annexure-A3 or in the order AnnexureA4.

¶91

In view of the foregoing reasons, this Tribunal holds that there is no procedural irregularity or illegality in respect of issuance of Annexure-B1 demand notice, Annexure-B2 possession notice, Annexure-A3 affidavit and Annexure-A4 Order and that therefore the applicants 1 to 4 are not entitled to get the relief sought for in the SA.

¶92

In the result, S.A No.12 of 2022 stands dismissed. No costs.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 4^th September, 2023.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 11 of 12

SA No.12 of 2022

List of documents filed by the Applicants along with the S.A.

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Sl. No.	Date	Particulars
1.	03.12.2021	True copy ofthe possession notice	Annexure-A1
2.	---	True copy of the Crl. MP No.1908/2022	Annexure-A2
3.	---	True copy of the affidavit	Annexure-A3
4.	28.06.2022	True copy of the Order	Annexure-A4
5.	05.08.2022	True copy of the notice issued by the Advocate Commissioner.	Annexure-A5
6.	17.03.2023	True copy of the death certificate	Annexure-A6
7.	16.02.2023	True copy of the notice issued by the Advocate Commissioner.	Annexure-A7

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List of documents filed by the Defendant Bank along with the Written Statement

¶102

SL. No.	Date	Particulars
1.	06.07.2021	True copy ofthe demandnotice	Annexure-B1
2.	---	True copies of the postal receipts and postaltrack reports thereof.	Annexure-B1(a)
3.	03.12.2021	True copy of the possession notice	Annexure-B2
4.	---	True copy of acknowledgment cards in respect ofthe same.	Annexure-B2(a)
5.	07.12.2021	True copy of paper publication in Mathrubhumi, Malappuram edition and the New Indian Express Malapuram editionpapers.	Annexure-B2(b)
6.	---	True copies of photographs evidencing the affixture ofthe same.	Annexure-B2(c)
7.	---	True copy of the CERSAI registration.	Annexure-B3

¶103

(Su. WILLYAHM) PRESIDING OFFICER

¶104

Mj/-

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Page 12 of 12

Woodmall Furniture v. South Indian Bank

Case brief

What is this about?

What did the court decide?

Woodmall Furniture v. South Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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