Dismissed

G Tamil Prasanth and T Lalitha v. Aptus Value Housing Finance India Ltd.

DRT13 Jul 2023SA/224/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal dismissed the SARFAESI application filed by borrowers challenging physical possession taken by the financial institution. The tribunal held that applicants fraudulently obtained interim orders by suppressing facts regarding actual possession and misuse of processes, vacating all interim relief.

What did the court decide?

SA dismissed; interim orders vacated; costs of Rs.25,000 directed to be paid to Police Welfare Fund.

G Tamil Prasanth and T Lalitha versus Aptus Value Housing… — Execution and Attachment | DRT (2023)

¶1

¶2

S.A. 224 of 2023 13.07.2023

¶3

IN THE DEBTS RECOVERY TRIBUNAL- III, CHENNAI

¶4

Dated this the 13^th day of July, 2023

¶5

Present: Shri Ganapathi K.R.K. Presiding Officer

¶6

SARFAESI APPLICATION No. 224 of 2023

¶7

1. G.Tamilprasanth
S/o Govindasamy
D.No.1/307C, B.Agraharam Anjehalli
Pennagaram Taluk
Dharmapuri District
2. T.Lalitha
W/o Tamilprasanth
D.No.1/307C, B.Agraharam Anjehalli
Pennagaram Taluk Dharmapuri District	… Applicants
Vs.
The Chief Manager
Aptus Value Housing Finance India Limited
Dharmapuri Main Branch
Dharmapuri	… Respondent
Counsels on record / appeared:
Counsel for Applicants Counsel for Respondent	: M/s. K.Nagarajan : M/s. V.P.Parivallal

¶8

ORDER

¶9

This SA is filed challenging the measures initiated by respondent institution under Section 14 of SARFAESI Act before Ld.CJM, Dharmapuri in Crl.M.P. No. 1642 of 2023 dated 28.02.2023 for recovery of a sum of Rs.15,79,205/-

¶10

¶11

S.A. 224 of 2023 13.07.2023

¶12

Heard Ld.Counsels appearing for the respondent financial institution along with the Authorised Officer who is present in the court hall.

¶13

This is a challenge made by applicants herein suppressing the facts for obtaining favourable interim orders from this Tribunal.

¶14

The brief facts of the case are that applicants had availed loan facilities from the respondent financial institution at Dharmapuri. Owing to the default of the borrowers / applicants, respondent financial institution herein had invoked their SARFAESI actions. Despite acknowledging notices, as borrowers did not upgrade their loan account, respondent financial institution had approached Ld.CJM in Crl.M.P.No.1642 of 2023 and obtained order for taking physical delivery of the property. Since resistance was anticipated from the borrowers, police assistance was duly obtained and physical possession of the property has been taken during March 2023 and premises was handed over to the secured creditor by advocate commissioner appointed for the purpose. However, much to the surprise of secured creditor, the defaulting borrowers had broken open the seal put up by the advocate commissioner, and forcefully entered into the said premises.

¶15

Later, after entering into the said premises, they approached this Tribunal, pleading therein that respondent financial institution has obtained orders from Ld.CJM for taking physical delivery of the possession of the property and are attempting to take physical possession of the property when the borrower intends to settle the outstanding dues to the respondent financial institution. It is also submitted that without the warrant being issued or served upon them, officials of the respondent financial institution, have

¶16

¶17

S.A. 224 of 2023 13.07.2023

¶18

barged into their home, which is a residential house and that they were thrown out of their home and have forcefully locked the house while their belongings are all inside and made them, their children and aged inmates of the house as shelter less. Initially the SA could not be numbered for want of maintainability, at which point of time, Ld.Counsel for applicants, one Mr.Nagarajan has pleaded vehemently at the bench that his clients, i.e., applicants herein had deposited 20% of the outstanding amount in a sum of 3 lakhs and also submitted that borrowers are thrown on to the road without any shelter and prayed for redelivery of the property as permissive possession. Although this Tribunal was not initially considering the said appeal by the Ld.Counsel, for ordering redelivery, compliance of deposit of 20% is reported and submitted that borrowers are also willing to remit yet another sum of Rs.5 Lakhs within time granted by the Tribunal and kept on praying vehemently every day for over a week seeking redelivery of the property.

¶19

Meanwhile, notices to respondent financial institution were ordered and it is again wrongfully canvassed before the court that respondents refused receipt of notices from the Tribunal and also had talked in differently with the borrowers. Since Ld.Counsel for applicants, had himself filed a written memo, Tribunal keeping in mind, the payment of Rs.3 Lakhs and also undertaking to pay further sum of Rs.5 Lakhs by applicants, ordered for redelivery of the property and in case there is resistance by respondent, has directed the local Inspector of police to assist applicants in taking redelivery of the property, marking a copy of the order to the Superintendent of Police, Dharmapuri, for appropriate instructions. A certified copy of the proceedings sheet was also issued to the Ld.Counsel for applicants for obtaining redelivery of the property.

¶20

¶21

S.A. 224 of 2023 13.07.2023

¶22

At this stage, respondent had put up appearance through their counsel along with their Authorised Officer and submitted the true facts of the case that whatever pleadings that were made in the SA are absolutely false and that physical delivery of the property has already been obtained by the orders of the competent Magistrate Court as early as in March 2023 and that applicants approached this Tribunal during the end of April and pleaded contrarily that respondent financial institution is yet to take physical delivery of the property, which led to passing of an order in favour of applicants by this Tribunal, when the factual matrix is totally different. Ld.Counsel for respondent financial institution has demonstrated the actions of the respondent financial institution and submitted that borrowers are very cantankerous and has been harassing the officials of the respondent financial institution by lodging false police complaints and making them subject to embarrassment before police. Ld.Counsel also submitted that several requests were made to applicants to regularize their loan account and on their persistent default, respondent financial institution is constrained to invoke SARFAESI actions and prosecute the same to their logical conclusion. Ld.Counsel submitted that taking undue advantage of the interim order obtained from this Tribunal fraudulently, applicants had broke open the locks by themselves, as against which action, respondent financial institution had approached the police and lodged a complaint thereupon. Applicants did not take the assistance of police although they were directed to by the orders of this Tribunal, since they know that police are aware of this subject issue, in view of complaints pending with them. Ld.Counsel further reiterated that respondent financial institution has filed its counter and typed set of documents after serving a copy on the other side counsel.

¶23

¶24

S.A. 224 of 2023 13.07.2023

¶25

The matter was originally moved on 13.04.2023 when it was represented that respondent financial institution was only contemplating to take physical possession of the property pursuant to orders of the Ld.CJM in Crl.M.P.No.1642 of 2023 dated 28.02.2023, for recovery of a sum of Rs.15,79,205. It was the case of applicants that they intended to negotiate with respondent financial institution for an amicable settlement of their loan and that, to prove their bonafides, they are willing to deposit 10% initially and a further 10% of the outstanding amount due and sought for stay of the operation of SARFAESI actions of respondent financial institution. As there was no caveat from respondent financial institution, interim order was caused by this Tribunal directing applicants to deposit 10% by or before 21.04.2023 and further 10% within next 4 weeks. It was ordered that on compliance of the first 10% payment, there shall be an order of status quo as on the date and time of compliance and on the compliance of the second part of conditional payment, there shall be a stay of all further actions under SARFAESI. The matter stood posted to 25.05.2023, while ordering notice to the respondents, returnable by said date and for applicants to report compliance thereupon. On 25.05.2023, matter stood reposted to 05.07.2023. Meanwhile, applicants had filed two IAs and moved the same before bench, in SIA No. 762 & 763 of 2023, one seeking to advance the matter from 05.07.2023 to any nearer date and the other to order for breaking open the premises, which was then alleged to have been taken physical possession of, despite applicants complying both the conditions of the interim order imposed by this Tribunal. It is represented to this Tribunal that despite stay orders being in force, in view of compliance by applicants, respondent financial institution has taken physical possession of the property, throwing away applicants and other in-mates from

¶26

¶27

S.A. 224 of 2023 13.07.2023

¶28

the home. As service of notice of the IAs was not done properly nor acknowledgements from the respondent financial institution filed in the IAs, notices were ordered to be served personally on respondent financial institution and posted the matter to 20.06.2023.

¶29

On 20.06.2023, it is reported by the Ld.Counsel for applicants that notices from the Tribunal are refused and also further that respondent financial institution has refused to accept notices from applicants and submitted that they were also not prepared to open the locks and deliver permissive possession to applicants herein. Applicants had in fact furnished photographs of the office of respondent financial institution and stated that they refused receiving orders / notices from this Tribunal. Believing the said representation and keeping in view the condition of applicants being out of their dwelling house, even after complying with 20% payment to their loan account, respondent was directed to hand over permissive possession to applicants and in case if they do not do so, have been granted police assistance from the jurisdictional police station for which appropriate letter was also forwarded to the Superintendent of Police, Dharmapuri for appropriate directions and posted the matter to 23.06.2023, for reporting compliance.

¶30

On 23.06.2023, there was no representation on behalf of applicants and respondent financial institution had put up appearance along with its counsel and the Authorised Officer. Counsel for respondent had filed counter and typed set of documents and demonstrated their entire actions and submitted that the property has been delivered to the respondent financial institution through Advocate Commissioner

¶31

¶32

S.A. 224 of 2023 13.07.2023

¶33

as early as in March 2023 and it is absolutely false for applicants to plead that respondent is still contemplating to take physical possession. It was then brought to the notice of this Tribunal, that there was multiple police complaints lodged by both the parties against each other and applicants having obtained an interim order from this Tribunal, fraudulently, had trespassed into the property and had broken open the locks.

¶34

The matter is then reposted to 28.06.2023 on which day Ld.Counsel for applicants and Ld.Counsel for respondent financial institution along with their Authorised Officer were present in the court hall. Ld.Counsel for respondent as well as its Authorised Officer had submitted that applicants taking undue advantage of the interim order of this Tribunal, had trespassed into the property unlawfully. It is submitted that the Authorised Officer is not in possession of the property and that applicants are only in possession of the property. Per contra, Ld.Counsel for applicants submitted that, after passing over the matter he had a telephonic conversation with his client i.e., applicant herein and submitted that they are not in possession of the property and that it is the Authorised Officer only who is in possession of the property. As there

¶35

were rival claims, contradicting each other’s contentions, parties were directed to file their affidavits, affirming the same. Ld.Counsel for applicants had filed his own affidavit submitting the information he received / obtained from applicants herein, while the respondent financial institution’s Authorised Officer has filed his own affidavit submitting that he is not in possession of the property. On consideration of the rival claims, respondent financial institution was directed to take over the premises in terms of the orders of the Ld.CJM and also to take the assistance of jurisdictional police in a

¶36

¶37

S.A. 224 of 2023 13.07.2023

¶38

condition where they apprehend resistance from applicants herein. Matter is again reposted to 13.07.2023 for reporting compliance.

¶39

Today there is no representation for applicants and yet another counsel contemplated to represent applicants and submitted that he is awaiting vakalat from applicants and intended to file change of vakalat, which is refused. The matter is passed over during the 1st round of call work. During the 2nd round of call work when the matter is again called, Ld.Counsel for respondent financial institution had filed a memo evidencing the repossession of the house property with the help of police together with photographs and also submitted availability of video, if permitted to be filed. Ld.Counsel submits that photographs, evidence the harsh attitude of applicants herein, who were hurling un-parliamentary language on the police and also on the officials of the respondent financial institution, despite which respondent financial institution could repossess the house property with the help of police.

¶40

Ld.Counsel who contemplated to represent applicants, back tracked his submissions and stated that it is not to his knowledge about the lawlessness of applicants herein and therefore will not be interested to represent applicants. Whereas Ld.Counsel for respondent financial institution had prayed for appropriate orders, since he has also filed the dates and events bringing out the details of respondent financial institution’s SARFAESI actions till the date of repossessing the mortgaged property, as per the orders of Ld.CJM.

¶41

Perused the records and considered the submissions made on behalf of both the parties. It is evident that applicants had not come with clean hands to this Tribunal and

¶42

¶43

S.A. 224 of 2023 13.07.2023

¶44

have absolutely mislead this Tribunal into believing their submissions for obtaining false and wrongful orders contrary to the facts of the case. Applicants had been consistently misrepresenting and misleading the court to believe that they were all thrown on to the road unlawfully and that they required protection from the Tribunal against the actions of the respondent financial institution. Only after respondent financial institution had put up appearance and brought the facts of the case to the notice of the Tribunal, applicants had avoided approaching this Tribunal and their counsel had only appeared once and filed an affidavit and did not appear later on. Yet another counsel tried to make vociferous submissions quoting the provisions of Constitutional law for safeguarding the liberty of people and property, but was subdued when the affidavit of the earlier counsel was shared with him and immediately back tracked his submissions and stated that he will not be willing to advocate such applicants and also prayed not to consider any of the submissions made, although without holding any vakalat and only in the status of a representative counsel.

¶45

Considering the above factual matrix and set of situations that had prevailed, owing to the interim orders of this Tribunal, all interim orders are hereby vacated. As applicants had played fraud on this court, SA is dismissed and costs of Rs.25,000/- is ordered to be payable to the Welfare fund of Police station at Dharmapuri, for making even the police act differently, owing to the misrepresentations of applicants. All other IAs, if any pending stand closed. Respondent financial institution will be at liberty to proceed further in accordance to law if the default of the borrowers continues as they had established their procedure through their counter and typed set of documents, which are since demonstrated and found to be in accordance to law.

¶46

¶47

S.A. 224 of 2023 13.07.2023

¶48

Office is directed to forward a copy of this order to the concerned Police Station, Dharmapuri and Superintendent of Police, Dharmapuri for compliance of costs on applicants.

¶49

With the above directions, this SA stands disposed.

¶50

A copy of the order be communicated to the parties concerned as per extant

¶51

guidelines.

¶52

(Dictated to Stenographer (DD), transcribed by her, corrected, signed and pronounced by me through e- drt, on this the 13^th day of July, 2023)

¶53

Sd/-

¶54

(GANAPATHI K.R.K) PRESIDING OFFICER

G Tamil Prasanth and T Lalitha v. Aptus Value Housing Finance India Ltd.

Case brief

What is this about?

What did the court decide?

G Tamil Prasanth and T Lalitha v. Aptus Value Housing Finance India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Senthilvel Selvam versus Union Bank of India

Mrs a Dheepa versus Axis Bank

Union Bank of India versus M/S.Nag Yang Shoes Pvt.Ltd

State Bank of India versus Balasubramanian

Sri Kailash Traders Pvt. Ltd. versus Union Bank of India

Sankar Subramani versus The Authourised Officer Ms Idfc First Bank Limited