Dismissed

Imbichikoya P K v. South Indian Bank

DRT23 Nov 2023SA/369/2023

Case brief

AI extract

What is this about?

In a securitization application, applicants sought regularization of an overdue housing loan and monthly repayment installments. The Tribunal held it lacked the power to direct monetary regularization or set installments under Section 13(4) of the SARFAESI Act and dismissed the application.

What the court decided

AI extract

Imbichikoya P K versus South Indian Bank — Company and Corporate | 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 23^rd 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. 369 of 2023

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Between

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Imbichikoya P.K., S/o.Muhammed, Parakandi House, Perumbalil, Engapuzha Village, Puthuppadi, Kozhikode District -673 586.

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Sakkeena, W/o.Imbichikoya P.K., Parakandi House, Perumbalil, Engapuzha Village, Puthuppadi, Kozhikode District -673 586.

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And

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--- Applicants

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The Authorised Officer, South Indian Bank, 1^st Floor, Happy Towers, Vaikom Mohammed Basheer Road, Mananchira P.O., Kozhikode, Kerala -673 001.

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The Branch Manager, South Indian Bank, 1^st Floor, Happy Towers, Vaikom Mohammed Basheer Road, Mananchira P.O., Kozhikode, Kerala -673 001. --- Defendants

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SA No.369 of 2023

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This Securitization Application coming on 17.10.2023 for final hearing before me in the presence of Ms.Ann Olivia Vallavanadan, Counsel for the Applicants and Mr.Sijo George, Counsel for the defendants 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 18.07.2023 seeking to direct the defendants to regularize the overdue amount in loan account No.0412655000000461 and 0412652000000337 with the defendant bank and permit the applicants to repay the overdue amount in monthly instalments and direct the defendants 1 and 2 to accept the overdue amount in instalments and direct the defendants to recalculate the loan account taking into account the actual amount paid by the applicants in loan account No.0412655000000461 and 0412652000000337 with the defendant bank.

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The Counsel appearing for the applicants submitted that the entire proceedings initiated by the 1^st defendant are illegal and without authority and that the applicants are ready to repay the amount provided cooling time is granted to them and that the 2^nd defendant has not considered the amount repaid against the loan amount by the applicants and that the defendants may be directed to regularise the overdue amount and that the defendants may be directed to accept the overdue amount in installments to be prescribed by this Tribunal and that the defendants may be directed to recalculate the loan account taking into account the actual amount paid by the applicant in the loan account.

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The Counsel appearing for the defendants submitted that the since the applicants after having availed housing loan committed default in repayment of the outstanding loan due the loan account was classified as Non-Performing Asset and that the applicants did not send any objection/representation to the demand notice and that possession notice was issued and that it was served to the applicants and that it was affixed on the conspicuous part of the secured asset and that it was published in two leading newspapers and that pursuant to the order passed in Crl. MP 1521/2022 by the Chief Judicial Magistrate Court,, Kozhikode, Advocate Commissioner issued notice to the applicants informing them that he would take physical possession of the secured asset and that the defendants have complied with all the mandatory requirements contemplated under the SARFAESI Act, and the Rules made under and that the applicants are not entitled to get any of the reliefs sought for in the SA which deserves to be dismissed.

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Page 2 of 5

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SA No.369 of 2023

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Availment of housing loan to tune of Rs.53,50,000/- from the 2^nd defendant Bank upon creation of security interest over their immovable property situated in Sy. No.45/2022 of Kizhariyur village by deposit of title deeds and default in payment of the outstanding loan due is admitted by the applicants in the SA. Hence the loan account of the applicants came to be classified as Non-Performing Asset and demand notice, Annexure-B3 was served to the applicants calling upon them to pay the outstanding loan due within 60 days from the date of receipt of the notice. Admittedly the applicants did not send any objection/representation to the demand notice and also they did not adhere to the terms of the demand notice. Hence, possession notice, Annexure-A2 was issued for symbolically taking possession of the secured asset. The defendants have produced copies of Annexure-B8, postal receipts, B9 copy of photograph, B10 and B11 copies of paper publications in order to prove their contention that the possession notice was served to the applicants and that it was affixed on the conspicuous place of the secured asset and that it was published in two leading newspapers.

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The defendants filed in Crl. MP No.1521/2022 before the Chief Judicial Magistrate Court, Kozhikode, Order came to be passed appointing Advocate Commissioner to take physical possession of the secured asset. Pursuant to the above order, Advocate Commissioner issued Annexure-A5 notice informing the applicants that he would take physical possession of the secured asset on 20.6.2023.

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The reliefs sought for by the applicants in the SA are not the measures as contemplated under the provisions of Section 13(4) of the SARFAESI Act, 2002. This Tribunal has no power to direct the secured creditor to regularize the overdue amount of the loan account of the borrower and also direct the defendants to accept the overdue amount in installments as prescribed by this Tribunal. The above relief sought for by the applicants in the SA are unsustainable and untenable.

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In view of the foregoing reasons this SA No.369 of 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 23^rd day of November, 2023.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 3 of 5

SA No.369 of 2023

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

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Sl. No.	Date	Particulars
1.	03.07.2023	True copy of the tax receipt bearing No.KL11021004224/2023 issued by the Village Officer, Kizhariyur with English translation.	Annexure-A1
2.	10.01.2022	True copy of the possession taking noticeissued by the1^st defendant.	Annexure-A2
3.	04.04.2023	True copy of the judgment in W.P (C) No. 1552/2022 of Hon'ble High Court of Kerala.	Annexure-A3
4.	04.04.2023	True copy of the order in R.P No.332/2023 in W.P (C) No. 1552/2022 oftheHon'bleHighCourt of Kerala.	Annexure-A4
5.	07.06.2023	True copy of the notice issued by the Advocate Commissioner in CMP No.1521/2021.	Annexure-A5
6.	06.12.2022	True copy of the pay in slip against the remittance in account No.0412652000000337 for an amount of Rs.3,00,000/-	Annexure-A6
7.	13.02.2023	True copy of the pay in slip against the remittance in account No.0412652000000337 for an amount of Rs.9,00,000/-.	Annexure-A7
8.	---	True copy of the bank statement for the period from 04.05.2019 to 26.06.2023 for account No.0412655000000461 issued by the defendant bank.	Annexure-A8
9.	----	True copy of the bank statement for the period from 23.05.2019 to 26.06.2023 for accountNo.0412652000000337.	Annexure-A9

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Page 4 of 5

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SA No.369 of 2023

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List of documents filed by the Defendants along with the Written Statement

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SL. No.	Date	Particulars
1.	16.05.2019	True copy of the confirmation of deposit of title deeds executed by the 1^st defendant.	Annexure-B1
2.	15.05.2019	True copy of the declaration from the mortgagor.	Annexure-B2
3.	14.06.2021	True copy of the demand notice under Sec.13(2) ofthe SARFAESI Act.	Annexure-B3
4.	24.06.2021	True copy of the postal receipts (2 Nos) in respect of demand notice 14.6.2021 issued to theapplicants.	Annexure-B4
5.	14.06.2021	True copy of the acknowledgement of the applicants in respect of demand notice.	Annexure-B5
6.	08.10.2021	True copy of the endorsement of guarantor	Annexure-B6
7.	10.01.2022	True copy ofthe possession notice.	Annexure-B7
8.	14.01.2022	True copy of the postal receipts evidencing dispatch of possession notice to the borrowers.	Annexure-B8
9.	---	True copy of photographs taken effectingaffixture.	Annexure-B9
10.	11.01.2022	True copy of the publication effected in Thenew Indian ExpressEnglishdaily.	Annexure-B10
11.	11.01.2022	True copy of the publication effected in Malayala Manorama daily with English translation.	Annexure-B11

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 5 of 5

Imbichikoya P K v. South Indian Bank

Case brief

What is this about?

What the court decided

Imbichikoya P K v. South Indian Bank

Case brief

What is this about?

What the court decided

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