Allowed

M s Thiru Travel Service v. M s Omkara Assets Reconstruction Company Limited

DRT2 Feb 2024SA/25/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal allowed the applicant's challenge against measures initiated by the respondent under Section 14 of the SARFAESI Act via a Co-operative Judge's order, setting it aside and permitting the respondent to proceed legally if the default persists.

What did the court decide?

The order of CJM in Crl.M.P. No. 7340 of 2022 dated 17.08.2022 set aside; interim order vacated; all IAs closed; respondent permitted to proceed further under SARFAESI Act.

M s Thiru Travel Service versus M s Omkara Assets… — Contract and Commercial Disputes | DRT (2024)

SA No.25 of 2023

01.02.2024

IN THE DEBTS RECOVERY TRIBUNAL-III, CHENNAI

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Dated this the 01^st day of February, 2024

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Present: Shri Ganapathi K.R.K. Presiding Officer

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SARFAESI APPLICATION No.25 of 2023

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M/s. Thiru Travel Service Rep by its Proprietor Mr. Raghu Kumar, No.52, Shop No.46, 1^st Floor, Ankur Plaza G.N. Chetty Road, T. Nagar, Chennai-600 070. 2. Mr. Raghu Kumar, S/o. Mr. Loaganathan No.5, Visya Flats, Kumudam Nagar, East Main Road, Moggalivakkam, Chennai-600 125. 3. Mrs. M. Indumathi W/o. Mrs. Raghu Kumar, No.5, Visya Flats, Kumudam Nagar, East Main Road, Moggalivakkam, Chennai-600 125. ….Applicants -Vs- M/s. Omkara Assets Reconstruction Company Limited, Rep. by its Authorized Officer, Mr. Rajesh B Jumani, Registered Office at No.9, M.P.Nagar, 1^st Street, Kongu Nagar Extension, Thiruppur-641 607. ….Respondent Counsels on record / appeared: Counsel for Applicant : M/s. V. Arul Counsel for Respondent : M/s. Ramalingam & Associates

SA No.25 of 2023

01.02.2024

ORDER

This SA is filed challenging the measures initiated by respondent institution under Section 14 of SARFAESI Act before Ld. CJM, Chengalpattu in Crl.M.P. No. 7340 of 2022 dated 17.08.2022 for recovery of a sum of Rs.84,59,987.45p

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Heard Ld. Counsels appearing for respective parties.

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Applicant has laid a challenge to the measures initiated under Section 14 by the secured creditor. Ld. Counsel appearing for applicant submits that, consequent upon declaration of the account as NPA in the year 2021, demand notice came to be issued on 20.04.2022 which was since acknowledged by applicants. It is further submitted that, for the reasons best known, respondent had caused paper publication of the demand notice on 13.05.2022 and directly proceeded to obtain physical delivery of the property by approaching Ld. CJM. It is demonstrated that the order of the L.d. C.J.M was passed in a mechanical way without verifying the facts or the documents filed before it. The finding of Ld. CJM that possession notice was issued on 13.05.2022 and also publication caused of the same is fallacious, when it is the express pleading of respondent that they had not issued any possession notice but had proceeded directly to seek the assistance of Ld. CJM for obtaining physical possession by following judgement of Standard Chartered Bank Vs Noble Kumar as held by the Hon’ble Supreme Court. It thus, concludes that the order passed by Ld. CJM was mechanical and not by considering the documents placed before it. Submitting so Ld. Counsel prayed for appropriate orders.

SA No.25 of 2023

01.02.2024

Whereas, Ld. Counsel appearing for respondent institution has filed their counter and typed set of documents evidencing their actions. Ld. Counsel for Respondent concedes to the infirmity and submits that owing to change of law, respondent may be permitted to withdraw the notice and initiate action against the borrowers, if the default persists. Permitted.

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In the circumstances as the actions of the secured creditor are not in accordance to law and the order obtained from Ld. CJM in Crl.M.P. No. 7340 of 2022 dated 17.08.2022 are improper, the same is here by set aside. Interim order, if any granted and subsisting till this date stands vacated and all other IAs, if any, pending stands closed. As respondent admitted that no symbolic Possession Notice is issued, it is obvious that possession is still with mortgagor / borrower and hence no order is being passed about the same. Respondent is permitted to proceed further in accordance to law under SARFAESI, if the default persists, since the demand notice issued has been admitted by applicants.

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With the above directions, this SA stands closed.

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A copy of the order be communicated to the parties concerned as per extant guidelines

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(Dictated to PS, transcribed by her, corrected, signed and pronounced by me in Open Court, on this the 01^st day of February, 2024)

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Sd/- (GANAPATHI K.R.K) PRESIDING OFFICER

M s Thiru Travel Service v. M s Omkara Assets Reconstruction Company Limited

Case brief

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M s Thiru Travel Service v. M s Omkara Assets Reconstruction Company Limited

Case brief

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