Dismissed

M D Abdulla v. South Indian Bank

DRT9 Jan 2024SA/34/2023

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed a securitization application challenging the bank's NPA classification and physical possession measures under the SARFAESI Act, finding the applicant failed to prove procedural irregularities or explain why regularization relief was unavailable.

What did the court decide?

Securitization Application No. 34 of 2023 was dismissed with no costs awarded to either party.

M D Abdulla versus South Indian Bank — Contract and Commercial Disputes | 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 JANUARY, 2024

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

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S.A No. 34 of 2023

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Between

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M.D. Abdulla, S/o. Ibrahim, Residing at Berka House, Bevinja, Chengala P.O., Kasaragod District-671541.

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--- Applicant

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And

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The South Indian Bank Ltd. Kasaragod Branch, Golden Arcade, Near New Bus Stand, Kasaragod-671 121, Represented by its Chief Manager.

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The Authorised Officer/ Chief Manager, The South Indian Bank Ltd. Kasaragod Branch, Golden Arcade, Near New Bus Stand, Kasaragod-671 121.

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--- Defendants

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This Securitization Application coming on 03.11.2023 for final hearing before me in the presence of Mr. Renjish S. Menon, Counsel for the Applicant and Ms.Devayani Nair, Advocate represented the Counsel for the defendants and upon hearing arguments of learned counsels for all the parties and upon perusing the material on records, this Tribunal delivered the following:

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SA No.34 of 2023

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O R D E R

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This Securitisation Application was filed on 18.01.2023 seeking to declare that the classification of the loan account of the applicant into a Non-Performing Asset account by the defendants and all further actions taken by the defendants including the proceedings initiated under the SARFAESI Act, 2002 which culminated in Annexure-A1 and A3 is illegal and unsustainable under law and direct the defendants to regularize the loan accounts by allowing the applicant to pay the defaulted arrears in 10 equated monthly installments.

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The availment of credit facilities from the 1^st defendant Bank upon creation of equitable mortgage over the property which belongs to Mr.M.D.Faiz, son of the applicant, having an extent of 65 cents in Re.Sy.No.123/2/Pt situated in Chengala Village, Kasaragod District is admitted by the applicant. The applicant has conveniently omitted to mention in the SA as to whether he was prompt in respect of repayment of the outstanding loan due to the 1^st defendant Bank. However, it is revealed from the perusal of the written statement of the defendants that since the applicant defaulted in repayment of the outstanding loan due, his loan accounts were classified as NPA on 29.06.2021.

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Demand notice dated 09.11.2021, Annexure-B1 was served to the applicant calling him to repay the outstanding loan due within 60 days from the date of receipt of the notice. The applicant sent objection dated 10.01.2022, Annexure-B1(a) to the 2^nd defendant, who sent reply dated 28.01.2022, Annexure-B1(b) to the applicant. Possession notice dated 05.03.2022 was issued for symbolically taking possession of the secured asset. According to the defendant, the possession notice was published in Madhyamam newspaper dated 10.03.2022 and The New Indian Express newspaper edition dated 10.03.2022 and it was conspicuously affixed on the secured asset.

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The defendants have averred in their written statement that since the son of the applicant, who had availed credit facilities from the 1^st defendant Bank, defaulted in repayment of the outstanding loan due, his loan account was classified as NPA and that demand notice, Annexure-B2 was served to him and that for the objection, Annexure-B2(a) sent by the son of the applicant, reply, AnnexureB2(b) was sent to him and that Possession Notice dated 05.03.2022 was served. According to the defendants both the aforesaid notices were not challenged by the applicant and his son.

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Page 2 of 4

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SA No.34 of 2023

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On petition, Annexure-B3 filed under Section 14 of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court, Kasaragod by the 2^nd defendant, Order Annexure-A1 came to be passed appointing Advocate Commissioner for taking physical possession of the secured asset. Pursuant to the above order, the Advocate Commissioner issued Annexure-A3 notice to the applicant and his son and other co-obligants informing them that Possession of the property will be taken on 16.01.2023.

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One of the reliefs sought for by the applicant in the SA is to declare the classification of the loan account of the applicant as NPA is illegal and unsustainable under law. The applicant has not specifically averred in the SA as to what is the procedural irregularity in respect of the classification of his loan account as NPA.

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The other reliefs sought for by the applicant is to regularize the loan account by permitting the applicant to pay the defaulted arrears in 10 equated monthly instalments. The applicant has nowhere averred in the SA that he approached the 1^st defendant bank for regularization of his loan account and that his request was not considered by the 1^st defendant bank. In any event, this relief for regularization of the loan account of the applicant does not fall under the measure contemplated under Section 13 (4) of the SARFAESI Act, 2002. Hence this relief sought for by the applicant is unsustainable.

¶25

Apart from the aforesaid two reliefs, the applicant has not sought for any relief in respect of the measures under Section 14 of the SARFAESI Act, 2002, though he has filed copy of Order AnnexureA1 passed in CMP No.1589/2022 by the Chief Judicial Magistrate Court, Kasaragod appointing Advocate Commissioner to take physical possession of the secured asset. It is also not the contention of the applicant that the details contemplated under proviso (i) to (ix) to the provisions of Section 14(1) of SARFAESI Act, 2002 were not furnished in the petition, Annexure-B3 filed by the 2^nd defendant in CMP No.1589/2022. It is also not the contention of the applicant that the order, Annexure-A1 passed in CMP No.1589/2022 suffers from any infirmity or procedural irregularity. The applicant has miserably failed to prove his case so as to get the reliefs sought for in the SA.

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In the result, S.A No. 34 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 9^th day of January, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 3 of 4

SA No.34 of 2023

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

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Sl. No.	Date	Particulars
1.	16.07.2022	True copy of the order in CMP No.1589 of 2022 on the files of the learned Chief Judicial Magistrate Court,Kasaragod.	Annexure-A1
2.	15.09.2022	True copy of the judgment in W.P (C) No. 29334/2022 on the files of the Hon'bleHighCourt of Kerala.	Annexure-A2
3.	30.12.2022	True copy of the notice issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate in CMP No.1589/2022.	Annexure-A3

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List of documents filed by the Defendant Bank along with the Written Statement

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SL. No.	Date	Particulars
1.	09.11.2021	True copy ofthe demandnotice.	Annexure-B1
2.	10.01.2022	True copy ofthe objection	Annexure-B1(a)
3.	28.01.2022	True copy of the reply of the authorised officeralongwith A/c card.	Annexure-B1(b)
4.	25.11.2021	True copy ofthe demandnotice.	Annexure-B2
5.	10.01.2022	True copy ofthe objection	Annexure-B2(a)
6.	28.01.2022	True copy of the reply of the authorised officeralongwith A/c card.	Annexure-B2(b)
7.	---	True copy of Section 14 petition together withaffidavit.	Annexure-B3

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 4 of 4

M D Abdulla v. South Indian Bank

Case brief

What is this about?

What did the court decide?

M D Abdulla v. South Indian Bank

Case brief

What is this about?

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