Dismissed

Dundigal Hans Raj v. Tirumala Co-Operative Urban Bank Ltd.

DRT21 Nov 2023SA/232/2022

Case brief

AI extract

What is this about?

This Securitization Application under the SARFAESI Act was filed to challenge a possession notice issued by the Respondent Bank. The Tribunal affirmed the Bank's right to recover dues and take physical possession, dismissing the application for lack of merit.

What did the court decide?

The Securitization Application for setting aside the possession notice is dismissed; pending interlocutory applications stand disposed.

Dundigal Hans Raj versus Tirumala Co-Operative Urban Bank Ltd. — Specific Performance | DRT (2023)

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IN THE DEBTS RECOVERY TRIBUNAL. I AT HYDERABAD DATED THIS THE 21ST DAY OF NOVEMBER, 2023

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PRESENT: GUMMADI GOPICHAND, PRESIDING oFFICER

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sA.No.232/2022

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Dundigal Hans Raj, S/o. Sri D. Bheem Raj, Male, aged about 54 years, Occ: Business, R/o. H.No.1-7-58, Temple Alwal, Bollaram, Secunderabad.

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Applicant.

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Versus

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M/s. Tirumal Bank (Tirumala Co-op. Urban Bank Ltd.) Rep. by its Authorized Officer, 1"t Floor, Tirumala Pride, Main Road, Opp. TMC, Malakpet, Hyderabad-36.

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Respondent.

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Sri Ch. Siua Reddy. Sri Mettu Sriruiuas Reddy.

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:ORDER:.

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This application is filed by the Applicant u/s.17 of the SARFAESI Act, 2OO2, challenging the Possession Notice dt.11.O8.2O22, issued u/s.13(4) of the SARFAESI Act, including the action of the Respondent Bank u/s.14 of the SARFAESI Act to take physical possession of the application schedule property, pursuant to Notice of the Advocate Commissioner dt.I3.O9.2O22, issued in Crl.M.P.No.46l2O22 on the file of Chief Metropolitan Magistrate, MedchelMalkajgiri District.

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The averments made in the application in brief are that,

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The Applicant availed loan of Rs 900/-^{in the} lear^{2014 from} "ry@

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the Respondent Bank P-y"ary@r%B\ application schedute property and hc- paid..'.th.#"'loan ffitatrhEgr\ regularly rilt 20 17 . Thereafter, due t. losses rd=f","ir,.a'ffini" br'S,"]n. .rr,d not pay the loan instalments iegr"rtartr. 4rhl#R.gUA"ae*tl1 nk classified the ' r--r I]

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loan account as NPA and*1i;sued Demqdgf{ptice dt.08.02.2018,

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. i,.:,r.^,i. .-:-: ,1e;;i.,)!, .i*rj ;rliy

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SA. No.2i2/2022

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u/s.13(2) of the SARFAESI Act, calling upon the Applicant to pay entire outstanding dues. The Applicant approached the Respondent Bank and sought for some time for payment of entire dues but, the Respondent Bank issued Possession Notice dt.18.04.2018 u/s,13(a) of the SARFAESI Act. Thereafter, the Respondent Bank obtained orders from the Ld. CMM and got appointed Advocate Commissioner for taking physical possession of the schedule property. Aggrieved by the said action, the Applicant preferred WP.No.40636 of 2O18 before the Hon'ble High Court for the State of Telangana, wherein the Hon'ble High Court vide order dt.O7.O2.2Ol9, granted interim stay on condition of deposit of 50% of the dues within two weeks from the date of receipt of the copy of the said orders by the Applicant. After receipt of the said copy on t2.O2.2O19, the Applicant deposited Rs.5,00,0OOl- on 25.02.2019 and Rs.2,03,950/- on 26.02.2019, being 50% of the amount due. However, the Hon'ble High Court has come to the conclusion that there was a delay in complying the interim order and dismissed the said writ petition on 20.08.2019 with an observation that the said orders shall not preclude the Applicant to take recourse to the statutory remedy available to him.

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ii) During the month of June, 20 19, the Applicant has approached the Respondent Bank with Demand Drafts for Rs.7,O3,950l- and requested the Bank to accept as one time settlement but the Bank demanded entire amount and thereafter obtained orders from the Ld. CMM in Cr1.M.P.No.49l2O2O to take physical possession of the schedule property. The Applicant challenged the said action of the Respondent Bank by filing SA.No.5O l2O2O, which was dismissed on 25.O5.2022.

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iii) The Respondent Bank, t of 50% of the outstanding *Ur dues by the Appli 'ge interest on interest and penal interest. So,'flqe Appli#lbt ffit^requEd qu the Respondent Bank to reduce the unexplained -debit,amoq4t of Eq1O,+S,OOO/- and to accept the batance ani,ouht J lJtt!t,J[1[uu.t jjto*..a. ctosure of the +rl ll l. 'i'"\ 1-1'-r5'.f,

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SA.No.232/2022

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account. But, the Respondent Bank demanded the Applicant to^pay Rs.16,39,063 as on 01 .O7.2022.

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iv) The Respondent Bank again obtained the orders of appointment^of Advocate Commissioner dated 11.O8.2O22 from the Ld. CMM to take physical possession of the schedule property and in pursuance of the same, the Advocate Commissioner issued notice dt.13.09.2022^{to the} Applicant for taking physical possession of the schedule^property. Even though there are tenants in the schedule property, the Respondent Bank / Advocate Commissioner failed to issue notice to them. Hence the SA.

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The Respondent Bank filed its Reply Statement denying all the^adverse ailegations made in the SA. The contentions of the Respondent^{Bank, in} brief, are as under:-

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i) The Applicant after availing the loan of Rs.14,50,000/-^on 29.LL.2014, committed default in repayment of the^{loan amount and} the loan account was classified as NPA by the Respondent^Bank.The Demand Notice u/s.13(2) was issued on O8.02.2Ot8 calling^uponthe Applicant to pay entire dues of Rs.14,O7,867 l- but the Applicant failed to pay the same. Sb, the Respondent Bank issued^Possession Notice dt.18.04.2018 u/s.13(a) of the SARFAESI Act and took symbolic possession of the schedule property and thereafter^obtained orders from the Ld. CMM, Cyberabad, RR Districtⁱⁿ Crl.M.P.No.606l2Ol8, for taking physical^{possessionof the schedule} property. Chatlenging the same, the Applicant filed WP.No.4O636 of 2018 along with IA.No.1 of 2018 seeking stay of the said action^{of the} Bank before the Hon'bie High Court and the Hon'ble High Court granted condition": "::, "%# not complied by the Applicant and finally the in dismissal, vide order dt.20.08.2019. #vt*

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ii) The Respondent Bank JoA'HEil l#3n ofd from the Ld. I ,bt

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Additional Senior Civil ffiHffi litan Magistrate,

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SA.No.232/2022

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Cybderabad, RR District in Cr1.M.P.No.49/2O2O, for taking^physical possession of the schedule property, challenging which the Applicant filed SA.No.SO l2O2O before this Tribunal and the said SA^was dismissed by this Tribunal vide order dt.25.05,2o22. The Applicant approached the Respondent Bank and submitted a^letter dt.10.08.2022, requesting the Bank to receive a sum^of Rs.11,01,566.52 ps., and to close the account as against the^total dues of 16,39,0631 - stating that there are some unexplained deductions amounting to Rs.6,48,0OOl-, to which the^Respondent Bank sent its reply dt.22.O8.2O22, enclosing therewith the statement of account.

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iii) As the Applicant failed to pay the outstanding dues, the Respondent Bank filed Cr1.MP.No.46i 2022 on the file of Ld. CMM and obtained Warrant of Commission dt.1 I .O8.2022 for taking^{physical possession} of the schedule property, challenging which the Applicant^{filed the} present SA.

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Heard arguments.

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Now, the points that arise for consideration are,-

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i) Whether the Applicant has estabiished any valid^grounds for^setting aside the action of the Respondent Bank to take physical^possession of the schedule property pursuant to the Advocate Commissioner's notice dt.13.09.2022, issued in Cr1.M.P.No.46/ 2022 on the^{Iile of Ld.} Prl. Sr. Civil Judge-cum-Chief Me Magistrate, Malkajgiri District?

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ii) To what relieP

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)ii Point No.(i):'7 it )t" ll_ r'^a^i/d'L"F'lii,#' 6. nl,'o As can be seen rrom the pr"ti$s=i;=Effi"0, ::"'"" SA.No.50 12022 before this rrifri )uBtrrg he validity of the Demand Notice dt.08.02.2018, issu S.13(2), Possession Notice

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SA. No.232/2022

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dt.i8.04.2018, issued u/s.13(a) of the SARFAESI Act and also the action of the Respondent Bank to take physical possession of the schedule pursuant to the issuance of the Warrant of Advocate Commissioner dt.28.01.2O2O by the Ld. Chief Metropolitan Magistrate, Cyberabad, Ranga Reddy District in crl.M.P.No.49l2o2o. The said SA.No.S0 l2o2o was dismissed by this Tribunal vide order dt.25.05.2022, a copy of which has been filed by the Respondent Bank. This Tribunal while dismissing the said sA.No.SO 12022, held that the Respondent Bank has duly followed the procedure contemplated u/s.13(2), 13(4) and Sec.14 of the SARFAESI Act in issuing the Demand Notice dt.08.02.2018, Possession Notice dt.18.O4.2018 and also in taking steps before the Ld. CMM, Cyberabad, Ranga Reddy District for appointment of Advocate Commissioner for taking physical possession of the application schedule property. So, the Applicant is estopped from raising similar grounds in the present SA.

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It is the contention of the Applicant that, after dismissal of the said SA.No.SO l2o2o filed by him, he obtained a copy of the statement of account from the Respondent Bank and after verifying the same, he noticed that there is unexplained debit amount of Rs.6,48,000/- and so he requested the Respondent Bank vide his letters dt.27.06.2022 and 1O.O8.2O22, to reduce the said amount and receive the balance amount of Rs.11,01,566.52ps., and close the account but, the Respondent Bank, did not agree for the same and demanded the total outstanding dues. Per contra, the Respondent Bank contended that, the proposal of the Applicant for closure of the loan account by the Respondent Bank by accepting the amount of Rs.11,01,566.52ps., is without the un-debited interest and charges and the total outstanding dues with interest and charges was to the tune of Rs.16,39,063 as on O1.O7.2O22 and so the proposal of the Applicant fr t of the account for a meagre amount of Rs. 1 1,01, able to the Respondent Bank and so, the Re nt Bffi vidi$i\ plies dt.O7.O7.2022 and 22.O8.2O22 conveyed same and demanded t Applicant to pay entire outstanding dues. I pondence between the

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SA.No.232/2022

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Applicant and the Respondent Bank, which has been filed by the Respondent Bank in its material documents. I see nothing wrong on the part of the Respondent Bank in demanding the payment of total outstanding dues from the Applicant. Admittedly, the Applicant failed to pay the outstanding dues. So, the Respondent Bank approached the Ld. Prl. Sr. Civil Judge-cum-Chief Metropolitan Magistrate, Malkajgiri District, by filing Cr1.M.P.No.a6l2022 and obtained Warrant of Commission dt.ll .O8.2O22 for taking physical possession of the schedule property towards enforcement of security interest for recovery of its legitimate dues from the Applicant.

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So, in view of the facts and circumstances stated above, I find that the Applicant has miserably failed to establish any ground for setting aside the action of the Respondent Bank to take physical possession of the schedule property with the aid and assistance of the Advocate Commissioner appointed in Crl.M.P.No.46/2022 by the Ld. Prl. Sr. Civil Judge-cum-Chief Metropolitan Magistrate, Malkajgiri District. So, the present SA is devoid of merits and same is liable to be dismissed.

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Point No.(ti):-

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In the result, the present Securitization Application is dismissed. Consequently, the Interlocutory Applications, pending if any, shall stand disposed of. No order as to costs.

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Communicate a copy of this order to the parties concerned.

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(Dictated to the Priuate Secretary, transcribed bg him, corrected, signed and pronounced bg me in the open court on this the 21", daA of Nouember, 2023).

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sd/(G. GOPTCHANDI PRESIDING OFFICER

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1 il0t/

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Dundigal Hans Raj v. Tirumala Co-Operative Urban Bank Ltd.

Case brief

What is this about?

What did the court decide?

Dundigal Hans Raj v. Tirumala Co-Operative Urban Bank Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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