Dismissed

Sreeja Sajith v. Canara Bank

DRT10 Nov 2023SA/1/2023

Case brief

AI extract

What is this about?

This court dismissed an application under the SARFAESI Act challenging notices for possession, sale, and eviction. The debtor admitted loan default and the bank proved compliance with notice issuance, publication, and affidavit requirements.

What did the court decide?

The application seeking to set aside notices and direct regularization of the loan was dismissed; no costs awarded.

Sreeja Sajith versus Canara Bank — Banking and Recovery | 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 10^th DAY OF NOVEMBER, 2023

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

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S.A No.1 of 2023

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Between

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Sreeja, W/o. Sajith Sreekumar, Villath House, P.O. Cherukattupulam, Vaniyamkulam, Ottapalam Taluk, Palakkad District – 679 522.

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--- Applicant

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And

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The Authorized Officer/ Chief Manager, Canara Bank, J.R.J. Complex, Near Bus Stand, Main Road, P.O. Ottapalam, Palakkad – 679 101.

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Sajith Sreekumar, Villath House, P.O. Cherukattupulam, Vaniyamkulam, Ottapalam Taluk, Palakkad District – 679 522.

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(D2 is deleted from the party array as per proceedings dated 13.10.2023)

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--- Defendants

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SA No.1 of 2023

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This Securitization Application coming on 13.10.2023 for final hearing before me in the presence of Mr. P.Jayaram, Advocate for the Applicant and Ms. Thankom Mukundakrishnan, Advocate for the 1^st defendant and that the S.A claim as against D2 having been given up 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 28.12.2012 seeking to declare that Annexure-A1 to A3 notice and further proceedings are absolutely illegal in view of the non-compliance of Section 13 (3A) of SARFAESI Act, 2002 and to declare that the whole proceedings initiated by the defendant bank under SARFAESI Act, 2002 are null and void and to set aside Annexure-A1 to A3 notices and further proceedings for violation of the provisions of SARFAESI Act, 2002 and to direct the defendant bank to regularize, restructure and reschedule the applicant’s loan in order to re-pay the loan amounts in instalments spanning over a period of ten years from now.

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Availment of housing loan by the applicant and her husband from the 1^st defendant bank upon creation of security interest over the immovable property in the year 2012 and 2013 and the default in repayment of the outstanding loan due is admitted by the applicant in the SA. Hence the loan account of the applicant came to be classified as NPA and Annexure-A1 demand notice was issued to the applicant calling upon her to pay the outstanding loan due within 60 days from the date of receipt of the notice. The claim of the applicant that she sent reply to the demand notice is refuted by the 1^st defendant in his written statement. The applicant has not produced any material to prove her above claim. Since the applicant failed to respond to the terms of the demand notice, possession notice dated 17.06.2022, Annexure-B1 was issued for taking symbolic possession of the secured asset. The 1^st defendant has produced Annexure-B1, copy of the possession notice along with postal acknowledgment card and Annexure-B2 photographs in order to prove his averment that the possession notice was served to the applicant and that it was affixed on the conspicuous part of the secured asset. The 1^st defendant has also produced Annexure-B3 and B4, copies of paper publications to show that Annexure-B1 possession notice was published in the Hindu Daily dated 23.06.2022 and Desabhimani Daily dated 23.06.2022. Thus it is evident that the 1^st defendant has complied with all the mandatory requirements in respect of issuance of Annexure-B1 possession notice.

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Page 2 of 4

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SA No.1 of 2023

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One of the reliefs sought for by the applicant is to set aside Annexure-A2 sale notice dated 24.08.2022. In Annexure-A2 sale notice, sale had been proposed to be held on 29.09.2022. The applicant has not averred in the S.A as to whether sale was fructified pursuant to Annexure-A2 sale notice. The 1^st defendant also has not specifically averred in his written statement as to whether the secured asset was sold pursuant to issuance of Annexure-A2 sale notice. In any event, the applicant has not specifically averred in the S.A. as to whether issuance of sale notice is not in accordance with the provisions of the SARFAESI Act and the Rules made thereunder. Thus it is evident that the relief sought for by the applicant in respect of Annexure-A2 sale notice cannot be granted.

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The other reliefs sought for by the applicant in the S.A is to set aside Annexure-A3 dated 12.12.2022. The applicant has not produced the copy of the affidavit filed by the 1^st defendant under Section 14 of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court, Palakkad. She has also not produced the copy of the order passed in MC No.231/2022. She has produced only copy of Advocate Commissioner notice, Annexure-A3. It is also not the case of the applicant that the details as contemplated under the proviso (i) to (ix) of Section 14(1) of the SARFAESI Act, 2002 are not furnished by the 1^st defendant in the affidavit filed under Section 14(1) of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court, Palakkad and that the learned Chief Judicial Magistrate, Palakkad passed order without having perused the contents of the affidavit and without having satisfied with the same. The Advocate Commissioner issued notice Annexure-A3 pursuant to the direction given to him by the learned Chief Judicial Magistrate, Palakkad in MC No.231/2022 to take physical possession of the secured asset. Such Advocate Commissioner notice is not a measure and is also not challengeable in any manner. The applicant has miserably failed to prove her case that she is to get the relief sought for in the S.A.

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In view of the foregoing reasons, this Tribunal holds that the applicant is not entitled to get the reliefs sought for in this SA. In the result, S.A No.1/2023 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 10^th day of November, 2023.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 3 of 4

SA No.1 of 2023

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

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Sl.	Date	Particulars
No.
1.	03.03.2022	True copy of the notice issued to the applicant and her husband u/s 13(2) of the SARFAESI Act, 2002 by the respondent.	Annexure-A1
2.	24.08.2022	True copy of the e-auction sale notice issued by the respondent under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 putting to sale the security asset.	Annexure-A2
3.	12.12.2022	True copy of the notice issued by the Advocate Commissioner appointed by Chief Judicial Magistrate Court, Palakkad to take possession of the security asset/house & compound by dispossessing the applicant and her family.	Annexure-A3

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List of documents filed by the 1^st Defendant Bank along with the Written Statement

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SL. No.	Date	Particulars
1.	17.06.2022	Possession noticewith A/Dcards	Document-B1
2.	----	Photographs evidencing affixture of possession notice dt.17.06.2022	Document-B2
3.	23.06.2022	Publication of possession notice in The Hindu daily.	Document-B3
4.	23.06.2022	Publication of possession notice in Desabhimanidaily	Document-B4
5.	---	Account statements	Document-B5

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 4 of 4

Sreeja Sajith v. Canara Bank

Case brief

What is this about?

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Sreeja Sajith v. Canara Bank

Case brief

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