Dismissed

Ameer Sulthan v. State Bank of India

DRT9 Oct 2024SA/6/2023

Case brief

AI extract

What is this about?

In this Securitization Application, minors challenging possession notices under the SARFAESI Act in proceedings against their uncle and grandmother sought to identify secured assets and fix property boundaries. The Tribunal dismissed the application, holding it was collusive and that the secured asset was properly demarcated separately from the applicants' property.

What did the court decide?

Application dismissed with compensatory costs of Rs. 25,000 awarded to defendants 1 and 2.

Ameer Sulthan versus State Bank of India — 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 9^th DAY OF OCTOBER, 2024

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

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S.A No. 6 of 2023

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Between

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Ameer Sulthan, S/o. Muhammed Nabeel, Aged 12 years, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642, Represented by his father Mohammed Nabeel, S/o. Ummer Haji, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642.

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Shan Rahman, S/o. Muhammed Nabeel, Aged 12 years, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642, Represented by his father Mohammed Nabeel, S/o. Ummer Haji, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642.

--- Applicants

SA No.6 of 2023

And

The State Bank of India, Mongam Branch, Malappuram – 673 642.

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The Authorized Officer ARM Branch, Ernakulam, Representing for Mongam Branch, State Bank of India, Malappuram – 673 642.

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Majid Ummer, S/o. Ummer Haji,

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Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor,

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Malappuram -673 642.

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Maimoona, W/o. Ummer, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642.

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--- Defendants

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This Securitization Application coming on 11.09.2024 for final hearing before me in the presence of Ms. M.A. Jinsamol, Advocate appearing for the Applicants and Mrs. Thankom Mukundakrishnan, Advocate appearing for the defendants 1 and 2 and defendants 3 & 4 having been set exparte and upon hearing arguments of learned Counsels for the applicant and Defendants 1 and 2 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 04.01.2023 seeking to pass an order directing the 1^st and 2^nd defendants to identify the secured asset and to fix the boundary of applicant’s property and adjacent property of 3^rd and 4^th defendants and to set aside Annexures–A3 and A6 notices and to declare that Annexure-A6 proceedings is not binding on the applicants’ property including the residential building in it and to allow the cost of the proceedings from the defendants 1 and 2.

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Page 2 of 8

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SA No.6 of 2023

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The applicants who are minors are represented by their father Mr. Muhammed Nabeel. The applicants are third parties to the proceedings initiated by the defendants 1 & 2 under the SARFAESI Act, 2002 and the Rules thereunder against the defendants 3 & 4. According to the applicants, they are the owners of the property having total extent of 4 Ares and 88 Sq.mtrs. in Re. Sy. No.78/3 which is situated in Morayoor Village, Kondotty Taluk, Malappuram District. When the Advocate Commissioner inspected their property and served copy of the notice Annexure – A3 dated 13.10.2022, they understood that the Chief Judicial Magistrate Court, Manjeri has appointed the Advocate Commissioner for taking physical possession of the property mortgaged by the defendants 3 & 4 due to default in repayment of the outstanding loan due. Subsequently, the Advocate Commissioner issued another notice Annexure – A6 informing the applicants that he would take possession of the property mentioned in the notice on the same day.

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It is submitted by the counsel for the applicants that the applicants are not parties to Annexures – A3 & A6 notices issued by the Advocate Commissioner and that they had not availed any loan from defendants 1 & 2 by mortgaging their property described in Annexure – A1 deed and that when the applicants obtained certified copy of the petition Annexure – A5 filed in CMP No.2246/2022 before the Chief Judicial Magistrate Court, Manjeri they noticed that the defendants 1 & 2 had given only Survey number in the description of the properties and not sub-division number and that the Chief Judicial Magistrate Court directed the Advocate Commissioner to attach the entire property in the survey number and that the property mentioned in Annexure – A5 petition and applicants’ property and adjacent properties are having no boundaries and that residential building is situated in both the properties in which the half portion of the residential building is situated in the applicants’ property and another half portion of the building is situated in defendants 3 & 4 property and that defendants 2, 3 & 4 have availed loan by mortgaging the applicants’ property also and that therefore Annexure–A3 and Annexure – A6 notices issued to take possession of the applicants property is illegal and is liable to be set aside.

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Per contra, the counsel appearing for the defendants 1 & 2 submitted that the applicants have no locus standi to challenge the proceedings imitated by the defendants 1 & 2 against the secured asset for recovery of the dues from the defendants 3 & 4 and that the applicants are the nephews of 3^rd defendant and the grand children of the 4^th defendant and that this SA has been filed in collusion with the defendants 3 & 4 to stall the SARFAESI measures initiated by the defendants 1 & 2 and that the sister of the 4^th defendant has filed SA No.735/2023 on the same lines before this Tribunal and that the

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Page 3 of 8

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SA No.6 of 2023

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secured asset belonging to the 4^th defendant is covered by the Deed No.4430/2006 of SRO Kondotty measuring 4.45 Ares of land with residential building in Re. Sy. No.78/3 in Murayoor Village, Malappuram District.

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It is further submitted by the counsel for the defendants 1 & 2 that they are proceeding against the secured asset only and that the 4^th defendant transferred the property owned by him to the applicants immediately after availment of the loan and that the land transferred to the applicants is lying adjacent to the secured asset and that the secured asset is in possession of the 4^th defendant and that the Advocate Commissioner never informed the applicants that he would take possession of their property and that he never served any notice to the applicants.

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It is further submitted by the counsel for the defendants 1 & 2 that the Advocate Commissioner with the assistance of the Taluk Surveyor identified, measured and demarcated the secured asset as per direction of this Tribunal and that the Advocate Commissioner filed an Annexure – B4 interim report before the Chief Judicial Magistrate Court, Manjeri and that the secured asset has been properly identified and demarcated and that the secured asset is not covered by the property of the applicants including half portion of the residential building as contended by the applicants and that the applicants who are the third parties have no locus standi to challenge Annexure – B5 Order passed in Crl.M.P No. 22464/2022 and that the SA which is not maintainable is liable to be dismissed with compensatory costs to the defendants 1 & 2.

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The contention of the defendants 1 & 2 with regard to the relationship of the applicants with the defendants 3 & 4 is not refuted or denied by the applicants. When the applicants claim that half portion of their building is situated in the property of the defendants 3 & 4, it is for them to produce relevant material before this Tribunal to prove their above claim. Therefore, the prayer sought for by the applicants to direct the defendants 1 & 2 to identify the secured assets and to fix the boundary of the applicants’ property and the adjacent property of defendants 3 & 4 is unsustainable. However, the defendants 3 & 4 sought the direction of this Tribunal to direct the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Manjeri to identify, measure and demarcate the secured asset with the assistance of the Taluk Surveyor. As per direction of this Tribunal, the Advocate Commissioner visited the secured asset after having served notice to both the parties and identified, measured and demarcated the secured asset with the assistance of the Taluk Surveyor and filed his interim report with location sketch which is produced as Annexure – B5 alongwith the written statement of defendants 1 & 2.

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Page 4 of 8

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SA No.6 of 2023

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It is seen from perusal of Annexure – B4 interim report that the Advocate Commissioner perused the title deed No.4430/2006 of SRO Kondotty belonging to the 4^th defendant and ascertained the extent of\ his property with the help of the Taluk Surveyor. In Annexure – B4 interim report the Advocate Commissioner has clearly mentioned as follows :

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“A-B-C-D-A in the plan is the schedule property in Crl.M.P No.2246/2022 and as per Title Deed No.4430/2006 of SRO Kondotty. The parts (The building in the schedule property is a two storied House) of the house in the schedule property is marked with red colour cross lines. The parts of the house is not included in the schedule property and situated in the remaining property is marked with light green cross lines.”

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In the location sketch, the part of the house which is not included in the scheduled property which is the secured asset is shown lying outside the marked portion of A-B-C-D. Therefore, it is clearly established that the secured asset and the property of the applicants have been separately identified. Therefore the contention of the applicants that their property has been included in the secured asset for taking physical possession is absolutely incorrect and baseless.

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This Tribunal finds considerable force in the submission of the counsel for the defendants 1 & 2 that this SA has been filed in collusion with defendants 3 & 4 so as to stall the measures initiated by the defendants 1 & 2 for taking physical possession of the secured asset.

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In view of the foregoing reasons, this Tribunal holds that the applicants are not entitled to get the reliefs sought for in this SA.

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In the result, S.A No.6 of 2023 stands dismissed with compensatory costs of Rs.25,000/- (Rupees Twenty Five Thousand only) to the defendants 1 & 2.

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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 9^th day of October, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 5 of 8

SA No.6 of 2023

S C H E D U L E

District	: Malappuram
Sub District	: Kondotty
Taluk	: Kondotty
Village	: Morayoor
Desham	: Ozhukkoor
Panchayath	: Morayoor
Re. Sy. No.	: 78/3
Sub Division	: 3 and 4
Block	: 57
Extent	: 4 Ares 88 sq. mt.

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Description

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All these peace and parcel of property consisting of 4 Ares and 88 square meters of land and half portion of a residential building therein with all other improvements thereon situated in Re. Sy. No.78/3, having sub division 3 and 4 situated in Morayoor Village, Kondotty Taluk, Malappuram District which was registered as Document No.193/1/2019 in Kondotty Sub Registrar Office, Malappuram District.

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Boundaries

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North : Property of Majid Ummer South : Property of Thazhathethil knowingly as Melethil Parambu. East : Property of Thazhathethil knowingly as Karattu Chalil parambu. West : Balance property of Majid Ummer and No.2 of this Document No.1931/1/2019 which was registered In Kondotty Sub Registrar Office, Malappuram.

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 6 of 8

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SA No.6 of 2023

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

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Sl.	Date	Particulars
No.
1.	20.05.2019	True copy of Document No.1931/1/2019 which was registered in Kondotty SRO, Malappuram in the name of applicants.	Annexure-A1
2.	---	True English translation of Annexure- A1	Annexure-A1(a)
3.	30.05.2022	True copy of receipt issued from the Village Office for payment of tax for the propertyinthe year2022-2023.	Annexure-A2
4.	---	True English translation of Annexure- A2	Annexure-A2(a)
5.	13.10.2022	True copy of notice given by the Advocate Commissioner in Crl. MP No.2246/2022.	Annexure-A3
6.	25.11.2022	True copy of the judgment in W.P.(C) No. 33634/2022 of Hon'ble High Court of Kerala	Annexure-A4
7.	---	True copy of Crl. MP No.2246/2022 filed before Chief Judicial Magistrate CourtManjeri.	Annexure-A5
8.	04.01.2023	True copy of the Advocate Commissioner notice in Crl. MP No.2246/2022 filed before Chief Judicial Magistrate CourtManjeri.	Annexure-A6

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List of documents filed by the defendants 1 & 2 along with the written statement

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Sl. No.	Date	Particulars
1.	12.03.2019	True copy of the possession certificate	Annexure-B1
2.	03.04.2019	True copy of the tax receipt with Englishtranslation.	Annexure-B2
3.	---	True copy of building tax receipt.	Annexure-B3
4.	28.10.2023	True copy of the report of the Advocate Commissioner in Crl. MP No.2246/2022 of the Chief Judicial Magistrate CourtManjeri.	Annexure-B4

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Page 7 of 8

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SA No.6 of 2023

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5.	27.07.2022	True copy of the order of the Chief	Annexure-B5
		Judicial Magistrate Court Manjeri in
		Crl.MP No.2246/2022.

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 8 of 8

Ameer Sulthan v. State Bank of India

Case brief

What is this about?

What did the court decide?

Ameer Sulthan v. State Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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