Dismissed

Sijo Joseph v. South Indian Bank

DRT1 Jul 2024SA/394/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal dismissed an application seeking to set aside a Possession Notice and an Advocate Commissioner notice issued under the SARFAESI Act. The tribunal found the applicant failed to prove default was non-existent or notices were invalid, and noted the challenge was filed outside the statutory period.

What did the court decide?

Vacated the request to set aside notices and awarded no costs.

Sijo Joseph versus South Indian Bank — 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 1^st DAY OF JULY, 2024

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

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S.A No. 394 of 2023

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Between

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Sijo Joseph, Varikkattukuzhiyil House, Thirumaradi P.O., Koothattukulam Via. Thirumaradi, Ernakulam -686 662.

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--- Applicant

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And

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The Authorized Officer, South Indian Bank Ltd.

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SIB Building, Infopark Road, Rajagiri Valley P.O.,

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Kakkanad, Kochi -682 039.

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The Branch Manager, South Indian Bank Ltd. Valiyakulangara Mini Towers, Near V-cinemas, M.C. Road, Koothattukulam,

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Ernakulam – 686 662.

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--- Defendants

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This Securitization Application coming on 13.06.2024 for final hearing before me in the presence of Mr. Varughese Cherian, Advocate for the defendants and the Counsel for the applicant having failed to appear and advance argument and upon hearing arguments of learned Counsel for the Defendants and upon perusing the material on records, this Tribunal delivered the following:

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SA No.394 of 2023

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O R D E R

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This Securitisation Application was filed on 07.07.2023 seeking to set aside Annexure-A3 Possession Notice and Annexure-A4 Advocate Commissioner notice and to direct the defendants to pay the cost of the proceedings to the applicant.

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The applicant has admitted the availment of credit facilities in the 2^nd defendant bank upon creation of equitable mortgage over his immovable property measuring 11.13 Ares including a building therein situated in Sy. No. 146/5A of Thirumaradi village, Ernakulam District. He has not specifically averred in the SA as to whether he regularly repaid the outstanding loan due. But his averment that loan accounts were regular till the advent of Covid-19 pandemic itself would show that he defaulted in repayment of the outstanding loan due. The defendants have also stated in the written statement that in view of default committed by the applicant, his loan account was classified as NPA.

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The applicant has not averred in the SA as to whether he received the Demand Notice from the 2^nd defendant bank. The defendants have produced copy of the Demand Notice dated 11.06.2021 Annexure-B1 contending that Demand Notice was served to the applicant and that since he failed to settle the loan accounts, Possession Notice dated 10.09.2021 was issued. The Possession Notice has been produced as Annexure-A3 by the applicant. The defendants have produced copies of photograph and paper publications as Annexure-B2 series to prove their contention that Possession Notice was affixed on the conspicuous part of the secured asset and that it was published in two leading newspapers. Hence the contention of the applicant that Possession Notice was not affixed and that it was not published is absolutely incorrect.

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The applicant has himself admitted creation of security interest over his immovable property. In Annexure-A3 Possession Notice, the same property is mentioned in the schedule. The applicant has not placed any material before this Tribunal to prove his averment that there is no clear and identifiable boundaries for the secured asset.

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The applicant has not specifically and clearly averred in the SA as to how the interest calculated is exorbitant and incorrect and that the amount mentioned in Annexure-A3 Possession Notice is also incorrect. Be that it may so, the Possession Notice was issued as early as on 10.09.2021, but the applicant did not file the SA challenging the Possession Notice within the period of 45 days from the date of receipt

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Page 2 of 4

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SA No.394 of 2023

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of Possession Notice. Hence the above challenge made by the applicant against the Possession Notice is unsustainable.

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The defendants filed application and affidavit under Section 14 of the SARFAESI Act, 2002 in MC No.52/2023 before the Chief Judicial Magistrate Court, Ernakulam, Order came to be passed appointing Advocate Commissioner for taking physical possession of the secured asst. Pursuant to the above order, the Advocate Commissioner issued notice dated 24.06.2023, Annexure-A4 to the applicant informing that he would take physical possession of the secured asset.

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The applicant has not produced copies of the application and affidavit filed by the defendants in MC No.52/2023. He has also not produced the copy of the order passed in MC No.52/2023. It is also not the contention of the applicant that the requirements contemplated under clause (i) to (ix) to the provisions of Section 14(1) of the SARFAESI Act, 2002 was not complied with by the defendants in respect of filing the application and affidavit and that order in MC No.52/2023 was passed by the learned Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam without having perused the contents of the affidavit and the documents and having satisfied over the same. Without assailing the aforesaid measures, the challenge made by the applicant in the SA against Annexure-A4 Advocate Commissioner notice is unsustainable.

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The applicant has failed to prove his case that he is entitled to get the reliefs sought for in the SA. Hence this Tribunal holds that the applicant is not entitled to get the reliefs sought for in the SA.

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In the result, S.A No.394 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 1^st day of July, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 3 of 4

SA No.394 of 2023

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

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Sl. No.	Date	Particulars
1.	27.05.2013	True copy of the certificate issued by Commercial Tax Department, Govt. of Kerala.	Annexure-A1
2.	16.04.2021	True copy of the letter issued by the 2^nd defendant to theapplicant.	Annexure-A2
3.	10.09.2021	True copy of Sec.13(4) notice under SARFAESI Act, 2002 issued by the 1^st defendant.	Annexure-A3
4.	24.06.2023	True copy of the notice issued by the Advocate Commissionerto the applicant	Annexure-A4

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List of documents filed by the defendants along with the written statement

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Sl. No.	Date	Particulars
1.	11.06.2021	True copy of Demand Notice	Annexure-B1
2.	10.09.2021	Copies of photos regarding the affixture and the publications in respect of Possession Notice.	Annexure-B2 series

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 4 of 4

Sijo Joseph v. South Indian Bank

Case brief

What is this about?

What did the court decide?

Sijo Joseph v. South Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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