Dismissed

Basheer P M v. Piramal Capital and Housing finance Ltd.

DRT12 Jun 2024SA/115/2023

Case brief

AI extract

What is this about?

In this Securitization Application, the Debt Recovery Tribunal dismissed the applicants' plea to set aside the Advocate Commissioner notice under the SARFAESI Act. The Tribunal found the secured asset to be non-agricultural, accepted service of demand notices, and held the applicants failed to challenge the prior order for physical possession necessary to sustain their writ challenge.

What did the court decide?

Application SA No.115 of 2023 stands dismissed. No costs awarded to the defendant.

Basheer P M versus Piramal Capital and Housing finance Ltd. — Banking and Recovery | DRT (2024)

¶1

Fair Order

¶2

IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

¶3

DATED THIS 12^th DAY OF JUNE, 2024

¶4

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

¶5

S.A No. 115 of 2023

¶6

Between

¶7

Basheer P.M., S/o. Muhammed, Palakkadan House, Varappetty P.O., Varappetty Village, Kothamangalam Taluk, Ernakulam – 686 691.

¶8

Safiya Basheer, W/o. Basheer, Palakkadan House, Varappetty P.O., Varappetty Village, Kothamangalam Taluk, Ernakulam – 686 691. --- Applicants

¶9

And

¶10

Piramal Capital & Housing Finance Ltd. (Formerly known as Dewan Housing Finance) Corporation Ltd. Having its Registered office at Unit No-601, 6^th Floor, Piramal Amiti Building, Piramal Agastya Corporate Park, Kamani Junction, Opp. Fire Station, LBS Marg Kurla (West) Mumbai-400 070 and having its Branch office at Dhiraj Baug,

¶11

SA No.115 of 2023

¶12

Building ‘A’ Ground & 1^st Floor, Besides Axis Bank, Opp. Monalisa Building, Agra Road, Hari Niwas Circle, Naupada, Thane (West) -400 602, Represented by Authorized Officer.

¶13

--- Defendant

¶14

This Securitization Application coming on 01.03.2024 for final hearing before me in the presence of Mr. Bristow, Advocate representing the Counsel on record for the Applicants and Ms.Muhiseena V.Z., Advocate representing the Counsel on record 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:

¶15

O R D E R

¶16

This Securitisation Application was filed on 06.03.2023 to pass an order declaring that the measures initiated by the defendant under the SARFAESI Act, 2002 against the applicants and the secured asset is illegal and to set aside Annexure-A1 notice issued by the Advocate Commissioner and to pay the cost of the proceedings.

¶17

The applicants have averred in the SA that the 1^st applicant availed the housing loan from the defendant finance corporation. But it is revealed from the perusal of the written statement filed by the defendant, both applicants availed two non-housing loans on 31.07.2017 upon creation of equitable mortgage by deposit of title deed.

¶18

The default in repayment of the outstanding loan due is admitted by the applicants in the S.A. Hence the loan accounts of the applicants came to be classified as NPA. The defendant has produced copy of Demand Notice dated 28.11.2018, Annexure-B1(a) along with copy of postal receipts Annexure-B1(b) and copy of postal track report, Annexure-B1(c) to prove its contention that Demand Notice was served to the applicants. The defendant has also produced copy of photograph Annexure-B1(d) and copies of paper publications, Annexure-B1(e) and B1(f) to show that the above Demand Notice was affixed on the conspicuous part of the secured asset and published in newspapers.

¶19

Page 2 of 7

¶20

SA No.115 of 2023

¶21

According to the defendant, another Demand Notice dated 24.01.2020, Annexure- B2(a) was issued to the applicants calling upon them to pay the outstanding loan amount of Rs.1,77,70,704 within a period of 60 days from the date of receipt of notice. The defendant has produced copy of postal receipts, Annexure-B2(b) and copy of postal track report, Annexure-B2(c) to prove its contention that Annexure-B2(a) Demand Notice was received by the applicants, hence the contention of the applicants that Demand Notice was not served to them is absolutely incorrect.

¶22

It is the contention of the applicants that the secured asset is the agricultural property and that therefore SARFAESI measures cannot be initiated against the agricultural property. The rival contention of the defendant is the secured asset is not an agricultural land and that no agricultural activities were carried on in the secured asset and that it is a residential house of the applicants. The applicants have not produced any documents to substantiate their contention that the secured asset is agricultural property. It is clearly mentioned in Annexure-B3, copies of possession certificates pertaining to the properties of the applicants that the lands are dry lands. Therefore, the contention of the applicants that the secured asset is agricultural property does not hold good.

¶23

The defendant has produced copy of CERSAI search report dated 02.12.2019, Annexure-B4 to disprove the contention of the applicants that the security interest has not been registered with CERSAI.

¶24

The applicants have averred in the S.A that the property mentioned in the schedule of Annexure-A2 is not correct. The defendant has countered the above averment of the applicant contending that the schedule of Annexure-A2 application was prepared in accordance with the sale deed No.1720/2005 Pothanikkad SRO. However, the applicants have not specifically averred in the SA as to what is the correct boundary of the properties according to them.

¶25

The applicants have not placed any material before this Tribunal to substantiate their averments that exorbitant rate of interest and penal interest has been charged.

¶26

Page 3 of 7

¶27

SA No.115 of 2023

¶28

The main relief sought for by the applicants in the SA is to set aside Annexure-A1 notice dated 16.02.2023 issued by the Advocate Commissioner. The applicants have not challenged the order of the learned Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam for taking physical possession of the secured asset. Without challenging the above order, challenging Annexure-A1 Notice dated 16.02.2023 issued by the Advocate Commissioner is unsustainable.

¶29

In Annexure-A2 application, which was originally filed in MC No.125/2020 before the Chief Judicial Magistrate Court Ernakulam, all the details as required under Clause (i) to (ix) to the provisions of Section 14(1) of SARFAESI Act, 2002 were furnished. It is also not the contention of the applicants that the details required under the above said provisions of the SARFAESI Act, 2002 were not furnished in Annexure-A2. It is also not the contention of the applicants that the learned Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam passed order for taking physical possession of the secured asset without having perused the contents of the application and having satisfied over the same.

¶30

The applicants have failed to establish their case so as to get the reliefs sought for in the S.A. which deserves to be dismissed.

¶31

In view of the foregoing reasons, this Tribunal holds that the applicants are not entitled to get the reliefs sought for in this S.A. In the result, S.A No.115 of 2023 stands dismissed. No costs.

¶32

Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 12^th day of June, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 4 of 7

SA No.115 of 2023

S C H E D U L E

District : Ernakulam Sub District : Pothanikkad Taluk : Kothamangalam Village : Varapetty Desom : Varapetty Limit : Varapetty Grama Panchayat Tenure : Sarkar Pattom, Purayidam Re Sy Block No. : Nil Re Sy. Sub Div. No. : Nil Sy & Sub Div No. : 337/1 Extent : 25.10 Ares

¶40

Description

¶41

All that part and parcel of the property admeasuring a total extent of 25.10 Ares comprised in Sy. Nos.337/1 of Varapetty Village, Kothamangalam Taluk with building and company building of Varapetty Grama Panchyat, which is obtained by virtue of Sale Deed No.1720/2005 of Pothanikkad SRO.

¶42

Boundaries

¶43

North : Kaithodu South : Private Pathway East : Road West : Pathway

(Su. WILLYAHM)

PRESIDING OFFICER

Page 5 of 7

SA No.115 of 2023

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

¶49

Sl. No.	Date	Particulars
1.	16.02.2023	True copy of the notice issued by the Advocate Commissioner to the applicants.	Annexure-A1
2.	---	True copy of M.C. No.125/2020 of the Court of Special Additional Chief Judicial Magistrate (MPs &MLAs)	Annexure-A2

¶50

List of documents filed by the defendant along with the written statement

¶51

Sl. No.	Date	Particulars
1.	28.11.2018	True copy of the Demand Notice underSec.13(2) ofthe SARFAESI Act.	Annexure-B1(a)
2.	---	True copy of postal receipts with respect to Demand Notice dated 28.11.2018 under Sec.13(2) of SARFAESI Act.	Annexure-B1(b)
3.	---	True copy of postal track report with respect toAnnexure-B1(a)notice.	Annexure-B1(c)
4.	---	True photograph of affixture of DemandNotice,Annexure-B1(a).	Annexure-B1(d)
5.	---	True copy of publication of Annexure- B1 DemandNoticein vernaculardaily	Annexure-B1(e)
6.	---	True copy of publication of Annexure- B1 DemandNoticein Englishdaily	Annexure-B1(f)
7.	24.01.2020	True copy of DemandNotice	Annexure-B2(a)
8.	---	True copy of postal receipts with respect toAnnexure-B2(a)notice.	Annexure-B2(b)
9.	---	True copy of postal track report with respect toAnnexure-B2(a)notice	Annexure-B2(c)
10.	---	True copy of the possession certificate issued by Village officer covering the secured asset.	Annexure-B3

¶52

Page 6 of 7

¶53

SA No.115 of 2023

¶54

11.	02.12.2019	True copy ofCE	RSAIsearch report	Annexure-B4
12.	03.11.2021	True copy	of Certificate of	Annexure-B5
		Incorporation	pursuant to name
		change issued Companies,Mu	by the Registrar of mbai.

¶55

(Su. WILLYAHM) PRESIDING OFFICER

¶56

Mj/

¶57

Page 7 of 7

Basheer P M v. Piramal Capital and Housing finance Ltd.

Case brief

What is this about?

What did the court decide?

Basheer P M v. Piramal Capital and Housing finance Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Thakur Agro Industries through Its Prop Nilesh Ashok Thakur versus Canara Bank

Mathai versus Union Bank of India

Karnataka Bank Limited versus Ms Star Caters

Hdfc Bank Ltd., versus Muppala Janardhan

State Bank of India versus Coastal Breeding Farm Pvt. Ltd.

Nawabu Deen versus Canara Bank