Dismissed

Haridas Narayana pillai v. Gic Housing Finance Ltd.

DRT21 Nov 2024SA/129/2024

Case brief

AI extract

What is this about?

The Tribunal dismissed the applicant's securitization application challenging an order appointing an Advocate Commissioner for taking possession of immovable property. The court upheld the possession process.

What did the court decide?

Securitization application dismissed. No costs awarded.

What the court decided

Haridas Narayana pillai versus Gic Housing Finance Ltd. — Banking and Recovery | DRT (2024)

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Fair Order

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IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

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DATED THIS 21^st DAY OF NOVEMBER, 2024

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

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S.A No. 129 of 2024

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Between

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Haridas Narayana Pillai, S/o. Narayana Pillai, Cherulozhathil House, House No.8/550-1, Near Tony’s Eye Hospital, Bank Junction, Aluva P.O Ernakulam – 683 101.

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--- Applicant

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And

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GIC Housing Finance Ltd., Represented by its Authorized Officer, Branch Office, 1^st Floor, Elias Chambers, Banarjee Road, Ernakulam, Kochi – 682 018.

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GIC Housing Finance Ltd., Represented by its General Manager, Registered Office at National Insurance Building, 6^th Floor, No.14, Jamshedji Tata Road, Church Gate, Mumbai-400 020.

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--- Defendants

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SA No.129 of 2024

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This Securitization Application coming on 18.09.2024 for final hearing before me in the presence of Mr. Abu Mathew, Advocate appearing for the Applicant and Mr. Gibi C. George Advocate representing Advocate Latha Susan Cherian counsel on record for the defendants and upon hearing arguments of learned Counsel 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 09.02.2024 seeking to set aside Annexure-A4 order passed in MC No.824/2023 on the file of Chief Judicial Magistrate Court Ernakulam and A7 Advocate Commissioner notice and all steps and measures initiated thereunder by the 1^st defendant for taking possession of the properties described therein and to allow cost of this proceedings.

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The applicant has admitted the availment of a housing loan for a sum of Rs.73,00,000/-from the 1^st defendant finance Limited upon creation of security interest over his land comprised in Re. Sy. No.42/16 of Aluva kara, Aluva Taluk, Ernakulam District as the collateral security for the availment of the aforesaid credit facility. The applicant has also admitted his default in repayment of the outstanding loan due to the 1^st defendant Finance Ltd. Hence the loan account of the applicant came to be classified as Non-performing Asset and demand notice dated 03.07.2019 was issued to the applicant calling upon them to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. The applicant neither sent any objection/representation to the demand notice nor did he clear off his liability due to the 1^st defendant. Therefore the defendants issued Possession Notice dated 06.11.2019 for symbolically taking physical possession of the secured asset.

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Thereafter the defendants approached the Chief Judicial Magistrate Court Ernakulam and filed application Annexure-A2 and affidavit Annexure-A3 under Section 14(1) of the SARFAESI Act, 2002. Order dated 02.03.2023, Annexure-A4 came to be passed in MC No. 824/2022 appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued notice dated 03.11.2023, Annexure-A5 to the applicant informing him that he would take physical possession of the secured asset on 30.11.2023. Admittedly, physical possession of the secured asset was not taken on the aforesaid date. Therefore, the Advocate Commissioner again issued another notice dated 20.01.2024, Annexure-A7 to the applicant informing him that he would take physical possession of the secured asset on 6.2.2024. The applicant

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Page 2 of 6

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SA No.129 of 2024

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having aggrieved against the aforesaid measures filed the above SA seeking for the reliefs stated supra.

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It is averred by the applicant in the SA that no valid security interest has been created in favour of the 1^st defendant Finance Ltd. and that there was no due classification of the loan account as NPA since there was no outstanding due payable to the loan account and that 1^st defendant is not an Authorized Officer in terms of Rule 2 (a) of the Security Interest (Enforcement) Rules 2002 and that in AnnexureA1 letter the outstanding amount is mentioned as Rs.2,82,3105/- in August 2018 and that in Annexure-A2 application, the outstanding amount is mentioned as Rs.55,53,264/- and that the above difference of the amount is not explained in Annexure-A2 application and that taking possession of the property by invoking of the provision under Section 14 of the SARFAESI Act, 2002 is illegal and that therefore the defendants are not entitled to proceed against the secured asset on the basis of Annexure-A4 order and that hence the SA may be allowed as prayed for.

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It is the contention of the defendants in their written statement that the averment of the applicant that he remitted an amount of Rs.55 Lakhs till 2018 is incorrect and that since he committed default, his loan account was classified as NPA and that the judgment of the Hon'ble High Court of Kerala in W.P. (C) No.23896/2017 directing the applicant to pay the overdue amount in eight equal monthly installments was not complied with. It is further contended by the defendants that the applicant filed W.P.(C) No.38549/2023 challenging Annexure-A5 notice before the Hon'ble High Court of Kerala praying to permit him to pay the total amount due in installments and that the order passed directing the applicant to pay Rs.8,00,000/- within a period of one month was not complied with and that application in W.P. (C) No.38549/2023 filed seeking extension of time for payment was dismissed by the Hon'ble High Court of Kerala and that no exorbitant interest is charged and that the applicant has created valid mortgage over his immovable property and that the 1^st defendant is the Authorized Officer as per Rule 2 (a) of Security Interest (Enforcement) Rules 2002 and that the total amount due in August 2018 will be different due to accrual of interest and that there are no valid grounds raised in the SA warranting interference by this Tribunal and that hence SA may be dismissed with cost to this defendants.

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The person who issued Annexure-A1 letter is designated as the Authorized Officer of the 1^st defendant Finance Ltd. The applicant did not raise any objection by sending letter to the 1^st defendant Finance Ltd. The applicant did not send any objection/representation to the 1^st defendant Finance Ltd. for the Demand Notice stating that the classification of his loan account as NPA is illegal. In Annexure-A1

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Page 3 of 6

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SA No.129 of 2024

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letter, the outstanding amount is mentioned Rs.25,23,906/- as on 01.01.2018 whereas the outstanding amount mentioned in AnnexureA2 application and A3 affidavit is Rs.55,53,264/- as on 09.08.2022. It appears that the applicant has failed to notice that the aforesaid difference of amount is due to accumulation of accrued interest.

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It is seen from the perusal of Annexure-A6 copy of interim order and Annexure-D2 judgment passed by the Hon'ble High Court of Kerala that the applicant failed to comply with none of the directions of the Hon'ble High Court of Kerala in respect of payment of the amount to the 1^st defendant finance Ltd.

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It is also not the contention of the applicant in the SA that the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14(1) (b) of the SARFAESI Act, 2002 was not complied with by the defendants in respect of filing of the affidavit in MC No. 824/2022. It is also not the contention of the applicant that the learned Chief Judicial Magistrate, Ernakulam passed order without having perused the contents of the affidavit and the documents filed in support of the affidavit and having satisfied over the same. Without challenging the aforesaid measures, challenging Annexure-A5 and A8 notices issued by the Advocate Commissioner are unsustainable, since these notices are not the measures.

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A perusal of Annexure-A3 affidavit shows that all the statutory requirements contemplated under Clause (i) to (ix) to the provisos of Section 14 (1) (b) of the SARFAESI Act, 2002 were complied with by the defendants. Annexure-A4 order shows that the learned Chief Judicial Magistrate Ernkaulm after having perused the contents of the affidavit and the documents filed in support of the affidavit and after having satisfied over the same, passed order appointing Advocate Commissioner to take physical possession of the secured asset. This Tribunal does not find any procedural irregularity in respect of filing of affidavit Annexure-A3 or any infirmity in Annexure-A4 order passed in MC No. 824/2022. Therefore this Tribunal holds that the applicant is not entitled to get the reliefs sought for in this SA.

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Resultantly, this S.A No.129 of 2024 stands dismissed. No costs.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and

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pronounced by me in the open court on this the 21^st day of November, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 6

SA No.129 of 2024

S C H E D U L E

District : Ernakulam Sub District : Aluva Taluk : Aluva Village : Aluva West Kara : Aluva Re.Sy. No. : 42/16 Old Sy. No. : 226/4-1 Extent : 2.80 Ares Municipality : Aluva Tenure : Residential, Janmam.

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Description

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All that piece and parcel of 2.80 Ares of property comprised in Re. Sy.No.42/16 (Old Sy. No.226/4-1) of Aluva West Village, Aluva Taluk, Ernakulam District together with all improvements thereon and the building standing thereon more particularly described in the Sale Deed No.4032/2012 dated 08.11.2012 of Aluva SRO.

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Boundaries

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East : Municipality Road. North : Property belonging to T.K. John West : Property of Eliamma South : Property belonging to Susheela

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 5 of 6

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SA No.129 of 2024

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

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Sl.	Date	Particulars
No.
1.	22.02.2018	True copy of the letter along with Closing StatusReport as on31.08.2018	Annexure-A1
2.	---	True copy of the application in M.C. No.824 of 2022 on the file of the Chief Judicial Magistrate CourtErnakulam.	Annexure-A2
3.	---	True copy of the affidavit filed by the 1^st defendant bank before the Chief Judicial Magistrate Court Ernakulam in MCNo.824of2022.	Annexure-A3
4.	02.03.2023	True copy of the order passed by the Chief Judicial Magistrate Court Ernakulam in MCNo.824of2022.	Annexure-A4
5.	13.11.2023	True copy of the notice issued by the Advocate Commissioner.	Annexure-A5
6.	21.11.2023	True copy of the interim order passed by the Hon'ble High Court of Kerala in WP(C)No.38549 of2023.	Annexure-A6
7.	20.01.2024	True copy of the notice issued by the Advocate Commissioner.	Annexure-A7
8.	05.02.2024	True copy of the letter submitted by the applicant to the defendant.	Annexure-A8

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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.	---	Copy of the relevant pages of WP (C) No.38549/2023 (withoutExhibits)	Annexure-D1
2.	22.02.2024	Copy of judgment passed by the Hon'ble High Court of Kerala in WP (C) No.38549/2023.	Annexure-D2
3.	---	Copy of statement of account in respect oof loanaccount ofthe applicant.	Annexure-D3

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 6 of 6

Haridas Narayana pillai v. Gic Housing Finance Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

Haridas Narayana pillai v. Gic Housing Finance Ltd.

Case brief

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What the court decided

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