Dismissed

Devi Kumaravelu W o Kumaravelu Kanthasamy v. Icici Bank Limited

DRT27 Apr 2023SA/554/2022

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed a SARFAESI application challenging a sale notice issued by ICICI Bank. The Tribunal found evidence of service was missing but held the application infructuous as the auction sale did not take place as scheduled, barring further challenge at that stage.

What did the court decide?

Application dismissed without costs; sale notice expenses not to be debited; interim orders, if any, vacated.

Devi Kumaravelu W o Kumaravelu Kanthasamy versus Icici Bank… — Specific Performance | DRT (2023)

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S.A. 554 of 2022 27.04.2023

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IN THE DEBTS RECOVERY TRIBUNAL-III, CHENNAI

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Dated this the 27^th day of April, 2023

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

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SARFAESI APPLICATION No. 554 of 2022

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Devi Kumaravelu

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W/o Kumaravelu Kanthasamy No.8, Ayyankulathustreet Kottucherry Karaikal Karaikal – 609 609 ….Applicant

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Vs.

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ICICI Bank Limited

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Rep.by its Authorised Officer DSMG – Mortgagors 2^nd Cross Street, West Wing, Plot No.24 South Phase, Industrial Estate Ambattur Chennai – 600 058 ….Respondent

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Counsels on record / appeared:

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Counsel for Applicant : M/s. T.Sai Krishnan, R.Saravanan, A.Adhi Chakravarthy & J.Dayana Counsel for Respondent : M/s. S.Suresh

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ORDER

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This SA is filed challenging the Sale Notice dated 23.11.2022 issued by respondent bank scheduling sale to 29.12.2022 for recovery of a sum of Rs.1,38,51,852.11p

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Heard Ld.Counsels appearing for both the parties.

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S.A. 554 of 2022 27.04.2023

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It is the case of applicant, who is running a Brick unit in the name and style of M/s Devi Bricks work, had availed financial assistance to the tune of Rs.1,03,00,000/- from respondent bank, during the year 2019 and offered her residential house as security for due repayment of the loan. It is the further case of applicant that though applicant was regular in repayment of instalments, due to Pandemic Covid-19 and the consequent nation-wide lockdown, applicant’s Brick unit business came to a standstill. In the meanwhile, applicant had requested for re-scheduling the repayment tenure. Without considering the same, respondent bank had initiated measures under SARFAESI and issued the subject impugned sale notice dated 23.11.2022 scheduling sale to 29.12.2022. It is also submitted that the demand notice date is not even mentioned in the sale notice, thereby raising doubts as to whether the said demand notice was issued at all, as claimed by respondent bank. It is submitted that no demand and possession notices were issued to the guarantors. It is further submitted that respondent bank had also obtained an order from Ld. CJM, Puducherry for taking physical possession of the property. Advocate commissioner had issued a notice dated 17.12.2022 to the applicant, intimating that possession of the property will be taken by the Advocate commissioner on 28.12.2022. It is submitted on behalf of applicant that the minimum value of the schedule mentioned property is Rs.2.5 crores, but however respondent bank had grossly undervalued the property and had fixed the reserve price only at Rs.1.3 crores. It is also submitted that the impugned auction sale notice was not affixed on the conspicuous place of the property. Ld.counsel for applicant submitted that applicant could not comply with second part of conditional order and prayed for passing necessary orders.

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S.A. 554 of 2022 27.04.2023

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Whereas, Ld. Counsel for respondent bank submitted that applicant approached respondent bank, during the year 2019, for Loan against property. Based on the request of applicant, respondent bank had sanctioned a sum of Rs.1.03 crores, repayable together with interest at the rate of 11% per annum in 120 EMIs of Rs.1,48,883/- each. It is further submitted that applicant along with her husband, availed another loan facility under Guaranteed Emergency Credit Line (GECL) for a sum of Rs. 19 Lakhs, repayable together with interest at the rate of 9.25% per annum in 36 EMIs of Rs.59,759/- each. It is submitted that applicant committed default in repayment of their monthly instalments. Despite repeated requests and demands, as applicant did not come forward to repay the dues, respondent bank had classified the loan account as NPA on 13.07.2021. Respondent bank issued Demand Notice under Section 13(2) of SARFAESI Act dated 15.10.2021 which was duly served. As applicant / borrowers did not come forward to clear the dues even after expiry of statutory period, respondent bank issued Symbolic Possession Notice dated 09.02.2022 claiming a sum of Rs.1,25,04,007/- which was duly served, affixed in the conspicuous place of the secured asset and published on 15.02.2022 in two leading newspapers (New Indian Express and Dinamani) as warranted under law. Thereafter, respondent bank filed petition under Sec.14 of the SARFAESI Act before Ld.CJM, Puducherry vide Crl.M.P.No.8818/2021, to take physical possession of the secured asset and obtained an order for the same.

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It is submitted that respondent bank had obtained a valuation report on 26.07.2022 in compliance of SIE rules but however applicant without any supporting documents falsely claimed the value of the property to be Rs.2.5 crores. It is further submitted that respondent bank issued a sale notice on 23.11.2022 fixing the sale on 29.12.2022 which

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S.A. 554 of 2022 27.04.2023

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was duly served, affixed in the conspicuous place of the secured asset and was also published in two leading newspapers (The New Indian Express and Dinamani) on 23.11.2022 as warranted under law. It is also submitted that no sale had taken place on the scheduled date in view of compliance of 1^st part of conditional order by applicant. Ld.Counsel for respondent bank submitted that there are no infirmities in the procedure adopted by them while initiating measures under the Act and prayed for passing necessary orders.

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On perusal of records, although it was averred by respondent bank in their counter that the demand notice was duly served to applicant and that the subject impugned sale notice was affixed in the conspicuous place of the secured asset, it was found that the proof of service of demand notice and the affixture of impugned sale notice was not furnished by respondent bank in their typed set of documents. No documents were filed to establish the same. However, since the sale was not held on the scheduled date, in view of compliance of 1^st limb of conditional order, this SA is liable to be dismissed as infructuous.

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The infirmities alleged by applicants are sale notice specific and since no sale had taken place, the said contentions are negatived.

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However, respondent bank represented by its Authorised officer, is directed to follow the rules and provisions of the act meticulously in their future SARFAESI actions, if the default of the borrower continues.

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S.A. 554 of 2022 27.04.2023

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Accordingly, SA stands dismissed, however without costs. Respondent bank is directed not to debit the subject impugned sale notice expenses to the borrower’s loan account, for not establishing its vires, while issuing the impugned sale notice, as warranted under law. Interim order, if any granted and subsisting till this day stands vacated and all other IAs, if any pending stand closed. Liberty be with respondent bank to proceed further in accordance to law, if the default of the borrower continues

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With the above directions, this SA stands disposed.

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

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(Dictated to Stenographer (DD), transcribed by her, corrected, signed and pronounced by me in Open Court, on this the 27^th day of April, 2023)

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Sd/-

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(GANAPATHI K.R.K) PRESIDING OFFICER

Devi Kumaravelu W o Kumaravelu Kanthasamy v. Icici Bank Limited

Case brief

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What did the court decide?

Devi Kumaravelu W o Kumaravelu Kanthasamy v. Icici Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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