heard on 05.04.2024 in the presence of Advocate Shrihari.P for the applicants and Advocates Kuruvilla Mathew represented Advocate Varghese C Kuriakose for the defendants and stood over to this day for consideration, the Tribunal delivered the following:

¶15

O R D E R

¶16

This order relates to maintainability of the SA which was filed by the applicants after the final disposal of the SA.No.302/2017 filed by the applicants challenging the securitization proceeding initiated by the defendants.

¶17

During hearing, learned counsel for the applicants contended that after disposal of the previous SA bearing

¶18

SA.No.304/2023

¶19

¶20

SA.No.302/2017 filed by the applicants, the defendants obtained a fresh order from the Chief Judicial Magistrate Court, Kottayam under Section 14 of the SARFAESI ACT vide Annexure A4 which is not in accordance with the law. Hence the applicants have filed this SA challenging the order passed by the Chief Judicial Magistrate Court, Kottayam in M.C.No.230/2023 and the notice issued by the Advocate Commissioner to take physical possession of the secured asset. There is no legal bar to file fresh application under Section 17(1) of the SARFAESI act challenging such subsequent cause of action. Hence the SA is maintainable.

¶21

On the other hand learned counsel for the defendants contended that due to default committed by the applicants the securitization measure was initiated against them. An application under section 14 of the SARFAESI Act was filed earlier before the Chief Judicial Magistrate Court, Kottayam bearing CMP No.1040/2017 to take physical possession of the secured asset. An Advocate Commissioner, appointed by the Chief Judicial Magistrate, issued notice to take physical possession of secured asset which was challenged by the applicants in SA.No.302/2017 contending that the secured asset is agricultural land and securitization measure is not sustainable. After hearing the parties, this Tribunal came to a conclusion that the secured asset is not agricultural land and the securitization measure in respect of the secured asset has no illegality or defects by the final judgment dated 07.01.2023. Further it was held in the judgment that during argument stage the learned counsel for the applicants did not raise any other illegality or irregularity in respect of securitization proceeding. Hence this Tribunal did not interfere with the securitization measure and the SA was dismissed on merit. As the case was sub-judice before this Tribunal the defendants could not take further step in taking physical possession of the secured asset. After disposal of the case fresh application bearing M.C.No.230/2023 was filed by the defendant before Chief Judicial Magistrate Court, Kottayam under Section 14 of the SARFAESI ACT to take physical possession of the secured asset which is in continuation of earlier application filed before the Chief Judicial Magistrate to take possession of the secured asset. The judgment passed by this Tribunal has attained finality and the applicants cannot challenge the securitization measure afresh on

¶22

SA.No.304/2023

¶23

¶24

the same grounds. No fresh cause of action arose to file the present SA. Hence the present SA is not maintainable and the same may be dismissed.

¶25

On careful consideration of the submissions of both sides and the material available on record, it appears that previously the applicants have filed SA.No.302/2017 claiming that the secured asset is agricultural land and hence as per Section 31(i) of the SARFAESI ACT the securitization proceeding is not maintainable. In the said case the measure taken under Section 14 of the SARFAESI ACT was also challenged. But during the argument stage no contention was raised regarding any illegality or irregularity in such measure. It was held in the judgment dated 07.01.2023 passed in SA.No.302/2017 in paragraph No.10 that the secured asset is not agricultural land and the applicants cannot claim the secured asset as agricultural land in view of his own declaration. It was also held that no other illegality or irregularity is pointed out by the applicants to interfere with the securitization measure. The judgment passed by this Tribunal is not challenged by the applicants in any other forum and hence the same has attained finality.

¶26

Question arises whether the subsequent application filed under Section 14 of the SARFAESI ACT before the Chief Judicial Magistrate Court, Kottayam would create any fresh cause of action to file the present case?

¶27

As contended earlier in the previous case also the measure under Section 14 of the SARFAESI ACT was challenged and during argument the applicant did not raise any contention in respect of such measure. The Tribunal arrived at a conclusion that the applicants, having failed to point out any illegality or irregularity in such proceeding; no interference with the securitization measure is warranted. After disposal of the case the defendants filed a fresh application under Section 14 of the SARFAESI ACT seeking assistance of the court to take physical possession of the secured asset. In the facts and circumstances of the case it can be said that it is only continuation of the earlier proceeding and does not create any fresh cause of action to be challenged by the applicants in this proceeding. Further, in the SA the demand notice issued under Section 13(2) of

¶28

SA.No.304/2023

¶29

¶30

the SARFAESI ACT and the secured asset as agricultural land is raised, which is not permissible. Filing of applications by the borrower under the provision of the SARFAESI Act one after another on some plea or other is not the intention of the statute. In case such claim is entertained the purpose of legislative intention in introducing the SARFAESI ACT would be frustrated. No doubt the applicants may challenge subsequent proceeding initiated by the defendants after the measure under Section 14 of the SARFAESI ACT is over. Challenging the measure under Section 14 of the SARFAESI ACT which is continuation of earlier measure is not permissible.

¶31

In view of the foregoing reasons, it is conclusively held that the SA No.304/2023 is not maintainable and is hereby dismissed. Resultantly, all the pending IAs are also closed.

¶32

(Dictated to my steno, corrected and pronounced by me in the open Tribunal on this the 22^nd day of April, 2024)

¶33

[SOVAN KUMAR DASH] PRESIDING OFFICER

¶34

SA.No.304/2023

¶35

¶36

Documents on the part of the Applicants

¶37

Annexures	Date	Particulars of documents
Annexure-A1	28.11.2016	Certified copy of notice issued by the 1^st defendant.
Annexure-A2	02.05.2023	True copy of Section 14 application numbered as M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure-A3	02.05.2023	True copy of affidavit in M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure-A4	02.05.2023.	True copy of Section 14 order in M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure-A5	…	Certified copy of statement of account produced as document No.12 in Annexure A2 Section 14 application.
Annexure-A6	03.06.2023	True copy of notice issued by the Advocate Commissioner in M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure-	…	True English translation of Annexure A6
A6(A)		notice dated 03.06.2023 issued by the Advocate Commissioner in M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure A7	…	True copy of envelope relating to notice
		dated 03.06.2023 issued by the Advocate Commissioner in
		M.C.No.230/2023 on the file of Chief Judicial Magistrate, Kottayam.
Annexure A8	….	True print out postal track report relating to notice dated 03.06.2023 issued by the Advocate Commissioner in
		M.C.No.230/2023 on the file of Chief
		Judicial Magistrate, Kottayam.

¶38

Documents on the part of the Defendants

¶39

Annexures	Date	Particulars of documents
Annexure-	07.01.2023	True photostat copy of order in
B(1)(a)		SA.No.302/2017.
Annexure-	03.03.2017	True photostat copy of order in CMP
B(1)(b)		No.1040/2017 before the Chief Judicial Magistrate, Kottayam.
Annexure-		True photostat copy of application in CMP
B(1)(c)		No.1040/2017 before the Chief Judicial

¶40

SA.No.304/2023

¶41

¶42

Magistrate, Kottayam AnnexureTrue photostat copy of affidavit in CMP B(1)(d) No.1040/2017 before Chief Judicial Magistrate, Kottayam. AnnexureTrue photostate copy of title deed B(1)(e) pertaining to the property with translation.

¶43

[PRESIDING OFFICER]

¶44

SA.No.304/2023

¶45

¶46

IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

¶47

PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER

¶48

Dated this the 22^nd day of April, 2024

¶49

SA No.304/2023

¶50

Between

¶51

Amaya Simon & another … Applicants

¶52

And

¶53

The Authorised Officer, The Kaduthuruthy Urban Co-Operative Bank Ltd. & another. … Defendants

¶54

F I N A L O R D E R

Amaya Simon v. the Kaduthuruthy Urban Cooepartive Bank Ltd.

What the court decided

Amaya Simon v. the Kaduthuruthy Urban Cooepartive Bank Ltd.

What the court decided

A compact analysis

Statutes considered

Parties & counsel

Coram

Case details

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