Dismissed

Joy Abraham v. South Indian Bank

DRT19 Dec 2023SA/431/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed the applicant's Securitization Application challenging the bank's possession notices and orders under the SARFAESI Act. Finding that the bank complied with mandatory statutory requirements including public notice and civil court orders, the Tribunal held the applicant failed to establish any illegality.

What the court decided

AI extract

Joy Abraham versus South Indian 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 19^th DAY OF DECEMBER, 2023

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

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S.A No. 431 of 2022

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Between

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Mr. Joy Abraham, 10/240 C (14/6), Vaveli House, Manjummel, Eloor, Ernakulam -683501.

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--- Applicant

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And

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The Authorised Officer, South Indian Bank Ltd Regional Office, Thrissur SIB Platinum Jubilee Building, 1^st Floor, Ayyanthole, Thrissur, kerala -680 003.

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--- Defendant

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This Securitization Application coming on 04.10.2023 for final hearing before me in the presence of Mr. Bijumon E.A., Advocate for the Applicant and Mr. Varughese Cherian, 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 25.08.2022 seeking to declare that the entire proceedings initiated by the defendant under SARFAESI Act, against property are illegal and against law and setaside the same including Annexure-A1 proceedings and to declare

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SA No.431 of 2022

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that Annexure-A3 order in M.C. and Annexure-A4 Advocate Commissioner’s notice are illegal and also direct the defendant bank to keep in abeyance the securitization proceedings against the property till loan accounts are regularized.

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The availment of credit facility from the defendant bank upon creation of security interest over the applicant’s immovable property situated in Re. Sy. No.33 of Eloor village, Paravur Taluk, Ernakulam District by deposit of title deeds and 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 NonPerforming Asset on 28.01.2018, Annexure-B3 demand notice was issued to the applicant calling upon him to pay the outstanding loan due within 60 days of the receipt of the notice. The applicant sent Annexure-B4 objection dated 02.08.2021 for the demand notice to the defendant. The defendant sent reply dated 10.08.2021, Annexure-B5 to the applicant. A perusal of Annexure-B4 and B5 shows that for the objection raised by the applicant, suitable reply was sent.

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The applicant has himself admitted in the SA that since he failed to repay the amount, the defendant issued possession notice dated 12.07.2022, Annexure-A1. The defendant has produced Annexure-B6 series, which are copies of photographs and paper publications in order to prove his contention that possession notice was affixed on the conspicuous part of the secured asset and that it was published in two leading newspapers. The defendant filed application under Section 14 of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court, Ernakulam. Thereafter the matter was transferred to the Additional Chief Judicial Magistrate Court, (MP’s and MLA’s), Ernakulam where the matter was taken on file as M.C. No.90/2023. Order Annexure-A4 came to be passed on 10.03.2023 appointing Advocate Commissioner to take physical possession of the secured asset. Pursuant to the direction given in M.C. No.90/2023, the Advocate Commissioner issued notice to the applicant.

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It is submitted by the counsel for the applicant that the defendant improved the rate of interest from 10% to 14% without intimating the applicant and that the demand notice was not served to other parties of the loan agreement and that the defendant did not act as per Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 in respect of issuance of Annexure-A1 possession notice and that the amount claimed in the petition filed under Section 14 of the SARFAESI Act, 2002 is improper and that therefore, Annexure-A1

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Page 2 of 5

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SA No.431 of 2022

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possession notice, Annexure-A3 order and Annexure-A4 Advocate Commissioner notice are liable to be set aside.

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The counsel appearing for the defendant submitted that the interest has been charged as per the terms and conditions of the loan agreements and that since the demand notice sent to the guarantor was returned, demand notice was affixed on the wall of the residence of the guarantor and that demand notice was also published in two leading newspapers and that the amount paid by the applicant has been credited to his loan account and that defendant complied with all the mandatory requirements as provided in Section 14 of the SARFAESI Act, 2002 and that therefore the SA is liable to be dismissed with cost to the defendant.

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The applicant has not produced any material before this Tribunal to substantiate his contention that the defendant improved the rate of interest from 10% to 14% without intimating the applicant. Hence this Tribunal does not find any force in the above submission of the counsel for the applicant.

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The defendant has produced Annexure-B2 series and AnnexureB3 series to substantiate his contention that since the demand notice sent to the guarantor namely, Mrs. Reena Dixon, was returned unserved, demand notice was affixed on the outer wall of the residence of the guarantor and that it was also published in newspapers.

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A perusal of Annexure-B6 series shows that Annexure-A1 possession notice was published in two leading newspapers one in regional language, “Mangalam” edition 18.07.2022 and “The Hindu” edition dated 18.07.2022. Thus it is evident that the defendant complied with the provisions of Rule 8(1) of Security Interest (Enforcement) Rules, 2002.

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Even though the applicant has contended in the SA that the amount claimed in the petition filed under Section 14 of the SARFAESI Act, 2002 is improper, he has not specifically averred as to how the amount mentioned in the said petition is improper. It is not the contention of the applicant that all the requirements contemplated under Clause (i) to (ix) to the provisions of Section 14(1) of the SARFAESI Act, 2002 was not complied with by the defendant in the petition filed in M.C. No.90/2023. He has also not produced the copy of the affidavit filed in M.C.No.90/2023. However, he has produced copy of the Order, Annexure-A4 passed in M.C. No.90/2023. A perusal of the same shows that the learned Additional Chief Judicial Magistrate Court, (MP’s and MLA’s), Ernakulam after having perused

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Page 3 of 5

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SA No.431 of 2022

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the contents of the affidavit and verified the documents produced in support of the affidavit, passed order appointing Advocate Commissioner to take physical possession of the secured asset. This Tribunal does not find any infirmity in the above order. The Advocate Commissioner issued notice to the applicant in order to comply with the direction given to him in M.C.No.90/2023 to take physical possession of the secured asset. Such notice cannot be challenged in any manner. The applicant has failed to establish his case that he is entitled to get the reliefs sought for in the SA.

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In the result, S.A No.431 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 19^th day of December, 2023.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 5

SA No.431 of 2022

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

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Sl. No.	Date	Particulars
1.	12.07.2022	True copy of the possession notice.	Annexure-A1
2.	25.02.2022	True copy of the notice of Acknowledgment ofdebt and security.	Annexure-A2
3.	10.03.2023	True copy of Order in MC No.90/2023 appointingAdvocate Commissioner.	Annexure-A3
4.	22.03.2023	True copy of Advocate Commissioner notice.	Annexure-A4

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

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SL.	Date	Particulars
No.
1.	---	Copy of statement of account pertaining to the subjectloan account of applicant	Annexure-B1
2.	16.07.2021	Copies of demand notice along with its postal receipts in respect of the same and acknowledgement card by the applicant and returned cover in respect of demand notice issued to the guarantor.	Annexure-B2 (series)
3.	---	Copy of photograph regarding the affixture of demand notice to the guarantor and also the publications in respect ofthe same.	Annexure-B3 (series)
4.	02.08.2021	Copy of objection issued by the applicant.	Annexure-B4
5.	10.08.2021	Copy of reply notice issued by defendant bank.	Annexure-B5
6.	---	Copies of photographs in respect of the affixture of possession notice dated 12.07.2022alongwith its publications	Annexure-B6 (Series)

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 5 of 5

Joy Abraham v. South Indian Bank

Case brief

What is this about?

What the court decided

Joy Abraham v. South Indian Bank

Case brief

What is this about?

What the court decided

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