Dismissed

Masiya Afreen v. Can Fin Homes Ltd.

DRT31 Jan 2024SA/224/2022

Case brief

AI extract

What is this about?

In an application under Section 17 of the SARFAESI Act, 2002 challenging a sale notice, the Debts Recovery Tribunal, Jayanagar, IAT held that the respondent bank duly followed statutory procedures including issuance of demand, possession, and sale notices. The applicant failed to establish grounds to set aside the proceedings and was not entitled to re-delivery of the mortgaged property.

What did the court decide?

The applicant was not entitled to the re-delivery of the schedule property or revocation of the sale notice.

Masiya Afreen versus Can Fin Homes Ltd. — Banking and Recovery | DRT (2024)

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IN THE DEBTS RECOVERYTRIBUNAL.IAT HYDERABAD DATED THIS THE 31^ST DAY OF JANUARY,2C24 PRESENT: GUMMADI GOPICHAND, PRESIDING OFFICER

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SA.No.224/2c22

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Ms. MasiyaAfreen D/o Md. Afsar, aged 32 years, Occ:pvt. Service, R/o Building No.652, 2"d floor, Al-Kharj Road, Riyad, Kingdom of Saudi Arabia, Indian Address: R/ o # l2-l-922l9 1, MiskinshahBagh, Asif Nagar, Hyderabad Rep. by its cPA holder Mrs.Arifa Begum, W/o Md.Afsar, Occ:house wife, R I o # 12-1-922l9 1, MiskinshahBagh, Asif Nagar, Hyderabad

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..Applicant.

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Versus Can Fin Homes Ltd., Branch Address:5-9- 1 00, Doyen Trade House, Nampally, Hyderabad Rep. by its Authorized Officer

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..Respondent.

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Counsel for the Applicant

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Counsel for the Respondent

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Si Kranthi Kumar K. SnB.iV. Suamiji.

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.:ORDER:-

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This application is filed by the Applicant u/s. 17 of the SARFAESI Act,

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2OO2, challenging the Sale Notice dt.O8.O8.2O22 issued by the Respondent by fixing the auction of the application schedule property on 72.09.2022 the physical possession of the schedule property ent and for re-delivery of the same. --'-..i5.H. $a ,i_\ 2. The madiiir the * tion, in brief, are that: 31 JAt{ 202t rJ '"{i.""fj# r'.)-)'.

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SA.No.224/2022

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The Applicant availed housing loan of Rs.3300,000/_ from the Respondent in the year 20lg by executing necessary loan documents in favour of the Respondent. Due to financial crunch, there was delay in payment of some instalments by the Applicant. The Respondent has not issued any demand notice u/s 13(2) of the SARFAESI Act, 2OO2 or possession notice u/s l3(a) of the Act and notice prior to sale and without issuing any such notices and without affixing possession notice on the schedule property, straightaway issued sale Notice dt.08.08.2022 for conducting auction in respect of the schedule property on 12.09.2022. It fact, the authorities of the Respondent have also taken physical possession of the schedure property without following the procedure laid down under the provisions of Section 14 of the SARFAESI Act,2OO2. Hence, the SA.

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{/ &^

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The Respondent filed its Reply Statement denying all the adverse allegations made in the sA. The contentions of the Respondent are that, the Applicant availed Housing Loan of Rs.33,00,000/_ from the Respondent by mortgaging the application schedule property and thereafter committed default in the repayment of the loan amount. The Respondent initiated SARFAESI proceedings by issuing Demand Notice dt.O1.04.2o2t u/s. 13(2) of the Act to the Applicant and her GPA holder and the said notice was returned unserved and the same was published in Telugu, English newspapers and thereafter, Possession notice dt.25.06.2o2r was also issued through registered post but the same was returned unserved so, the possession notice was also published in daily newspapers and affixed on the schedule property. The Respondent has taken steps for taking physical

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possession of the schedule propert5r by way of appointment of commissioner. Challenging the said proceedings, the filed writ petition before the Hon'ble High Court of the Honble High Court granted conditional stay but t has not complied with the said orders passed by the 3'i ,:ltltffiF" Hon'ble Court. Al1 the required notices are duly published in the and got affixed on the schedule property. Thereafter, the

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SA.No.224/2022

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Respondent issued sale Notice dt.0g.0a.2o22 fixing auction of the schedule property on r2.o9.2o22 and the said notice was affixed on the schedule property and was also published in daily newspapers and before lixing the reserve price, the Respondent has obtained proper valuation of the schedule property from the approved valuer and thus the Respondent has followed the procedure raid down under the provisions of SARFAESI Ac, 2OO2 and Rules made thereunder and there are no merits in the SA. Accordingly, the Respondent Bank prayed for the dismissal of the SA.

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a. Heard both the Ld. Counsel.

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Now, the points that arise for consideration are,_

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Whether the Applicant has establisled ang ualid ground for setting aside the proceedings initiated bg tte Respond.ent und.er the SARFAES/ Act,2002 including the Sale Notice dt.08.08.2022, issued bg the Respondent?

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i, Wheth-er the Applicant is entitled for re-deliuery of the schedule

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property?

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iii) To tr.that relieJ?

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Points No.lll & lll):-

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During the course of arguments, Ld. Counsel for the Applicant and Ld. counsel for the Respondent reiterated their respective versions as stated supra.

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puted facts of the case are that the Applicant availed 4f i., of Rs.33,00,000/-from the Respondent by mortgaging property in favour of the Respondent and after availing f .inlt'm",6 Appiicant committed default in repayment of the loan e loan account of the Applicant became NpA.

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5A.No.224/2022

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As the Applicant has been contending that she has not received either demand notice or the possession notice allegedly issued by the Respondent, the initial burden lines on the Respondent to prove that they have duly issued the said notices to the Applicant. In order to establish the same, the Respondent has filed certain material documents along with the Reply statement liled by them. As per the said documents, it is clear that the Respondent has issued Demand Notice dt.o1.04.2021 u/s 13(2) of the SARFAESI Act, 2002 and sent the same to the Applicant by registered post but the said notice was returned unserved with the endorsement "addressee left'. So the Respondent published the said notice in daily newspapers dated 15.04.2021 .lt is not the contention of the Applicant that the address mentioned on the postal cover does not belong to the Applicant so, in view of the publication of the demand notice in the newspapers, it can be implied that the Applicant is having knowledge of the demand notice issued by the Respondent calling upon her to repay the outstanding dues within 60 days. As there is no response from the Applicant to the said demand notice, the Respondent proceeded u/s.13(4) of the SARFAESI Act by issuing Possession Notice dt.25.O6.2O21 and the said notice was sent to the Applicant by registered post and the same was also returned unserved. So, the said possession notice was published in English, Telugu and Urdu daily newspapers dt.29.06.2021 and also got affixed on the schedule property as prescribed under Rule 8(1)&(2) of the Security Interest (Enforcement) Rules, 2OO2. Thereafter the Respondent issued Pre-Sale Notice dt. 14. 07 .2022 and the said notice was also published in English, Telugu and Urdu daily newspapers. Thereafter, the

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t .'f

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ndent issued Sale Notice dt.OB.O8.2022 and the said notice was Applicant by registered post and affixed on the schedule d also published in English, Telugu and Urdu dt.o8.oa.2o22. As per the documents filed by the 3^{1 JlilR3g+io,,deF} it is also clear that challenging the steps initiated by the for taking physical possession of the schedule^property of the SARAFAESI Act, 2OO2, the Applicant filed

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SA.No.224/2022

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W.P.No.l917 122 on the file of Hon'ble High Court of Telangana at Hyderabad and the Hon'ble High Court granted stay on condition of depositing 25%o of the arrears within a period of four weeks from the date of order but the Applicant has not complied with the said order. So the iiling of writ petition by the Applicant clearly indicate s that the Applicant is well aware of the proceedings initiated by the Respondent under the provisions of SARFAEI Act, 2OO2 against the schedule property for taking physical possession of the schedule property. The above said material documents filed by the Respondent clearly prove that the Respondent has duly followed the procedure laid down under the SARFAESI Act and the Rules, 2OO2, while issuing the demand notice, possession notice, prior to sale notice and sale notice against the schedule property.

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So, considering all the circumstances, I hold that the Respondent has duly followed the procedure laid down under the SARFAESI Act and Rules, 2002, while proceeding against the application schedule property towards recovery of the outstanding dues from the Applicant. In fact, the Applicant is having knowledge of the notices issued by the Respondent under the provisions of SARFAESI Act, 2OO2. So, the Applicant has failed to establish any ground for setting aside the proceedings initiated by the Respondent under the SARFAESI Act against the schedule property so, the present SA filed by the Applicant is liable to be dismissed. Hence in the circumstances, the Applicant is not entitled for re-delivery of the schedule propert5r as the Respondent has duly followed the procedure laid down under the provisions of SARFAESI Act and Rules, 2002 in taking physical possession of the schedule pro Accordingly, these points are answered against the A of the Respondent Bank.

Polnt No.lllllr

tO.No.224/2022

In the result, the present Securitization Application is dismissed. Consequently, the Interlocutory Applications, pending if any, shall stand disposed of. No order as to costs.

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Communicate a copy of this order to the parties concerned.

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(Dictated to the P.A, transcibed bg her, corrected, signed and pronounced bg me in the open couri on this the 31sa dag of January,2024).

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sd/(G. GOPICHAND) PRESIDING OFFICER

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Masiya Afreen v. Can Fin Homes Ltd.

Case brief

What is this about?

What did the court decide?

Masiya Afreen v. Can Fin Homes 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

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Case details

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