Dismissed

Abdul Rasack M P v. Hdfc Bank

DRT24 Jun 2024SA/138/2023

Case brief

AI extract

What is this about?

Securitization Application filed by a borrower challenging notices issued for taking physical possession of mortgaged property under the SARFAESI Act. Debts Recovery Tribunal examined compliance of the recovery measures and the pendency of the application before deciding whether to quash the notices and dismiss the petition.

What did the court decide?

Securitization Application No. 138 of 2023 stands dismissed without any costs.

Abdul Rasack M P versus Hdfc Bank — Company and Corporate | 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 24^th DAY OF JUNE, 2024

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

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S.A No. 138 of 2023

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Between

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Abdul Rasack M.P., S/o. Abdurahiman, Meecheri Pakedeeri House, Thuvvur P.O., Malappuram -679 327.

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--- Applicant

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And

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Housing Development Finance Corporation Limited (HDFC Ltd) HDFC House, P.B. No.1667, Ravipuram Junction, M.G. Road, Kochi-682015, represented by its Authorized Officer.

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The Branch manager, Housing Development Finance Corporation Limited (HDFC Ltd) Malappuram Branch, Malappuram P.O., Opp. Police Station, Malappuram – 676 504.

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--- Defendants

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This Securitization Application coming on 07.06.2024 for final hearing before me in the presence of Mr. Thomastine K. Augustine, Advocate for the Applicant and Mr. Saju N.A., Advocate 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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SA No.138 of 2023

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O R D E R

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This Securitisation Application was filed on 16.03.2023 seeking to set aside the entire proceedings initiated by the defendants under the provisions of SARFAESI Act, 2002 in respect of mortgaged properties of the applicant as shown in Annexure-A3 notice dated 03.03.2023, Annexure-A5 notice dated 15.06.2023 and Annexure-A8 notice dated 08.12.2023 issued by the Advocate Commissioner and allow the cost of this proceedings from the defendants.

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The following are the facts which are not in dispute by both the parties to this S.A. The applicant as the principal borrower and his wife and his mother as co-borrowers availed credit facility of Rs.36,00,000/- in the 1^st defendant Finance Corporation upon creation of security interest by deposit of title deeds of the immovable property measuring an extent of 5.55 Ares situated in Sy. No.13/19 at Thuvuur Village of Nilambur Taluk. Since the applicant committed default in repayment of the outstanding loan due, the loan account of the applicant came to be classified as NPA and Demand Notice dated 21.09.2017 was issued to the applicant calling upon him to pay the outstanding loan due within a period of 60 days from the date of receipt of the 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 Finance Corporation.

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The applicant filed W.P.(C) No.33694/2018 before the Hon'ble High Court of Kerala challenging the above Demand Notice. Writ Petition was disposed of directing the applicant to pay Rs.7.5 Lakhs as on 23.11.2018, the applicant did not comply with the above order. Hence, physical possession of the secured asset was taken on 17.10.2019. Subsequently, the applicant filed a review petition, RP No.990/2019 before the Hon'ble High Court of Kerala seeking to review the judgment passed in W.P.(C) No.33694/2018. Since the applicant remitted Rs.14,25,000/- the above review petition was disposed of by way of order, Annexure-A1 and the possession of the secured asset was restored to the applicant. Since the applicant committed default again after paying only two instalments towards the loan account, fresh Demand Notice was issued to the applicant. The defendants filed fresh application, Annexure-A4, under Section 14 of the SARFAESI Act, 2002 in Crl. MP No.2323/2021 before the Chief Judicial Magistrate Court, Manjeri. Order came to be passed appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued notice dated 03.03.2023, Annexure-A3 to the applicant and other co-borrowers informing them that he would visit the secured asset to take possession of the same on 18.03.2023. Since the Advocate

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Page 2 of 6

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SA No.138 of 2023

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Commissioner was unable to take possession of the secured asset on the stipulated date, another notice dated 15.06.2023 was issued by the Advocate Commissioner for taking physical possession of the secured asset on 05.07.2023. Since physical possession of the property was not taken on the date, the Advocate Commissioner issued another notice dated 08.12.2023, Annexure-A8 informing the applicant that he would take physical possession of the secured asset on 22.12.2023. The applicant filed this S.A challenging Annexure-A3, A5 and A8 notices issued by the Advocate Commissioner.

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The applicant has produced copies of discharge certificate, Annexure-A2 and copy of ultra sound report, Annexure-A6 submitting that since he had to incur medical expenses for the treatment of his daughter and his wife, he could not pay of the outstanding loan due. The applicant having signed the necessary loan documents, agreeing to repay the loan amount without default is estopped from taking of the above plea for his inability to clear off his liability due to the 1^st defendant Finance Corporation.

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It is contended by the applicant that Annexure-A5 notice was issued without considering the pendency of the S.A before this Tribunal and also the stay order granted by this Tribunal and that the amount claimed in Annexure-A4 application is exorbitant and that penal interest has been charged and that applicant is ready to clear the entire loan amount within six months and therefore, the SA may be allowed as prayed for.

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Per contra, it is contended by the defendants that though the applicant has stated that he was ready to discharge his outstanding liability, there is no bonafide in his submission and that for the past three years, he did not make any payment and that the order of the Hon'ble High Court of Kerala directing the applicant to pay the overdue in the loan account in four equal instalments commencing from 24.12.2018 along with regular instalments was not complied with by the applicant and that the applicant was aware of the proceedings pending before the Chief Judicial Magistrate Court, Manjeri for taking physical possession of the secured asset and that therefore his contention that he received Annexure-A3 notice as a surprise is false and that the amount paid by him was given credit to his loan account and that pendency of the S.A before this Tribunal is not a valid ground to refrain the defendants from initiating measures for taking physical possession of the secured asset and that the actual amount payable by the applicant alone is mentioned in Annexure-A4 application and that interest is charged as per the agreed terms of the contract and the measures initiated by the defendants under Section 14 of the SARFAESI Act, 2002 is perfectly legal and that therefore SA is liable to be dismissed with costs to this defendants.

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Page 3 of 6

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SA No.138 of 2023

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The applicant has not specifically stated in the SA as to how the amount mentioned in Annexure-A4 application is exorbitant and that penal interest is charged. There is no bar for the defendants to approach the Chief Judicial Magistrate Court, Manjeri for taking physical possession of the secured asset during the pendency of the SA filed by the applicant before this Tribunal.

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Apart from the above contentions raised by the applicant, he has not averred anything in the S.A as to whether the requirements contemplated under Clause (i) to (ix) to the proviso of Section 14(1) of the SARFAESI Act, 2002 was not complied with by the defendants in Annexure-A4 application. However, a perusal of Annexure-A4 application shows that all details contemplated under Clause (i) to (ix) to the proviso of Section 14(1) of the SARFAESI Act, 2002 has been furnished. The applicant has not filed the copy of the order passed in Crl. MP No.2323/2021 by the learned Chief Judicial Magistrate Manjeri. The applicant has also not averred in the SA as to whether the order passed in Crl. MP No.2323/2021 is not in consonance with the mandatory requirements stipulated under Section 14(1) of the SARFAESI Act, 2002. The Advocate Commissioner issued AnnexureA3, A5 and A8 notices pursuant to the direction given to him in Crl. MP No.2323/2021 by the learned Chief Judicial Magistrate Manjeri to take physical possession of the secured asset. Without challenging the Order passed in Crl. MP No.2323/2021 by the learned Chief Judicial Magistrate Manjeri, the challenge made by the applicant in respect of Annexure-A3, A5 and A8 notices is unsustainable, since issuance of these notices is not the measure contemplated under Section 13(4) of the SARFAESI Act, 2002.

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The applicant has failed to establish his case so as to get the relief sought for in the S.A.

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In the result, S.A No.138 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 24^th day of June, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

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SA No.138 of 2023

S C H E D U L E

Description of Secured Asset

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Extent : 5.55 Ares Resurvey No. : 139/13 Village : Thuvvur Taluk : Nilambur District : Malappuram

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Boundaries

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East : Property hold by Kiliyath Marakkar North : Karuvarakundu Thuvvur PWD Road West : Property of Subramanyan South : Property of Kiliyath Hamza

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Page 5 of 6

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SA No.138 of 2023

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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.	29.10.2019	True copy of the order in RP No.990/2019 in WPC (No)33694/2018 of Hon'bleHighCourt of Kerala.	Annexure-A1
2.	28.07.2022	True copy of the discharge certificate issued from Malabar Hospital Pvt. Ltd. to the applicant’s daughter Nehrin M.P	Annexure-A2
3.	03.03.2023	True copy of the notice issued by the Advocate Commissioner in Crl. MP No.2323/2021 of Chief Judicial Magistrate Court,,Manjeri.	Annexure-A3
4.	---	True copy of the Crl. MP No.2323/2021 of Chief Judicial Magistrate Court,, Manjeri.	Annexure-A4
5.	15.06.2023	True copy of the notice issued by the Advocate Commissioner.	Annexure-A5
6.	14.04.2023	True copy of the Pelvic Ultrasound Report issued from Malabar Hospital Pvt.Ltd.,Manjeri.	Annexure-A6
7.	10.06.2023	True copy of the O.P. ticket issued from Malabar Hospital Pvt.Ltd.Manjeri.	Annexure-A7
8.	08.12.2023	True copy of the notice issued by the Advocate Commissioner.	Annexure-A8

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Abdul Rasack M P v. Hdfc Bank

Case brief

What is this about?

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Abdul Rasack M P v. Hdfc Bank

Case brief

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