Dismissed

Haseena K v. Idbi Bank

DRT25 Nov 2024SA/412/2023

Case brief

AI extract

What is this about?

This Securitization Application challenging possession and enforcement proceedings under the SARFAESI Act was dismissed. The Tribunal held the applicant was estopped from contesting interest rates, barred by time limits from challenging the possession notice, and failed to prove the secured asset was agricultural land.

What did the court decide?

No order as to costs. The Securitization Application is dismissed.

Haseena K versus Idbi Bank — Execution and Attachment | DRT (2024)

¶1

Fair Order

¶2

IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

¶3

DATED THIS 25^th DAY OF NOVEMBER, 2024

¶4

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

¶5

S.A No. 412 of 2023

¶6

Between

¶7

Haseena K., W/o. Basheer P.T., Pullithodika House, Ambileri, Kalpetta, Wayanad District-673121.

¶8

--- Applicant

¶9

And

¶10

The Manager, IDBI Bank Ltd. Kalpetta Branch, Wayanad Dist. 673 592.

¶11

The IDBI Bank Ltd., Rep. by its General Manager and Authorized Officer Manoj Kumar K., S/o. C.Nanu Retail Recovery, Regional Office, Panampilly Nagar, Ernakulam -682 036.

¶12

--- Defendants

¶13

SA No.412 of 2023

¶14

This Securitization Application coming on 21.10.2024 for final hearing before me in the presence of Ms. Archana, Advocate representing Ms. Celine Joseph, Counsel appearing for the Applicant and Ms. Keerthi K. Narayan, Advocate appearing for the defendants and upon hearing arguments of learned Counsels for both the parties and upon perusing the material on records, this Tribunal delivered the following:

¶15

O R D E R

¶16

This Securitisation Application was filed on 09.08.2023 seeking to declare that the entire proceedings initiated by the defendants against the applicant is vitiated by errors on the face of the record and to declare that the properties covered by Annexure-A2 are not liable to be proceeded by the defendants and to quash Annexure-A3 notice and all further proceedings thereto and to direct the defendants not to take physical possession of the properties mentioned in Annexure-A1 and Annexure-A2 and to direct the defendants to pay the cost of this proceeding to the applicant.

¶17

The applicant has admitted the availment of an agricultural KCC facility with a limit of Rs.50,00,000/- from the 1^st defendant bank upon creation of equitable mortgage over her immovable property comprising in Re.Sy.No.534/10, 536/13, 536/30 in Kalpetta village, Wayanad District, on 23.03.2017. The applicant has not specifically averred in the SA as to whether she was prompt in making repayment towards outstanding loan due. But the written statement of the defendants reveals the fact that since the applicant defaulted in repayment of the outstanding loan due, her loan account was classified as NPA as per RBI guidelines.

¶18

Demand notice dated 16.01.2023 Annexure-B1 was issued to the applicants calling upon her to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. Indisputably, applicant neither sent any objection/ representation to the demand notice nor did she clear off her liability due to the defendant bank.

¶19

Since the applicant failed to respond to the terms of the demand notice, Possession Notice dated 24.03.2023 Annexure-B3 was issued for taking physical possession of the secured asset. Annexure-B4 and B5 evidences the publication of the possession notice in Madhyamam daily and The New Indian Express daily. Thereafter, the defendants

¶20

Page 2 of 5

¶21

SA No.412 of 2023

¶22

approached the Chief Judicial Magistrate Court Kalpetta and filed Annexure-A1 application under Section 14 (1) of the SARFAESI Act, 2002. Order dated 12.05.2023, Annexure-A2 came to be passed appointing Advocate Commissioner for taking physical possession of the secured asset. The Advocate Commissioner issued notice dated 02.08.2023 Annexure-A3 to the applicant informing her that she would take physical possession of the secured asset on 11.08.2023. The applicant having aggrieved against the aforesaid measures, filed this SA seeking the reliefs stated supra.

¶23

According to the applicant, possession notice was not received by the applicant and hence subsequent procedures are unsustainable and secured asset is agricultural property and since secured asset is agricultural property, the defendants are not entitled to invoke the provisions of the SARFAESI Act and the Rules made thereunder and in respect of direct agricultural advances, compound interest and penal interest is charged and hence SA may be allowed.

¶24

It is the contention of the defendants that interest is charged as per the agreed terms of the loan agreement and that at the request of the applicant, the interest accrued during the period from 01.03.2019 to 29.02.2020 was converted as a Funded Interest Term Loan (FITL) of Rs.4,93,320/- for enabling the applicant to repay the same in convenient installments and that the applicant did not send any objection/representation to the Demand Notice raising the aforesaid issue. The further contention of the defendants is that possession notice was served on the applicant and that the applicant is not entitled to challenge the possession notice, since the SA was not filed within a period of 45 days from the date of issuance of the possession notice and that for approaching the Chief Judicial Magistrate Court for taking physical possession of the secured asset, issuance of possession notice under Section 13 (4) of the SARFAESI Act, 2002 is not mandatory and that there are no irregularities in Annexure-A2 order passed by the Chief Judicial Magistrate Court Kalpetta and that therefore SA is liable to be dismissed with cost to these defendants.

¶25

It cannot be disputed that the applicant has been enjoying the credit facilities since 2017 and that she was servicing the interest as per the agreed terms of the loan agreement. Hence this Tribunal does not find any force in the contention of the applicant that the rate of interest charged is exorbitant. Further the applicant having failed to raise the aforesaid issue by sending objection/representation to the Demand Notice is estopped from contending now that the rate of interest charged is exorbitant.

¶26

Page 3 of 5

¶27

SA No.412 of 2023

¶28

Possession notice was issued as early as on 24.3.2023. The applicant did not challenge the possession notice by filing the SA within the period of 45 days from the date of issuance of the possession notice. It is not in dispute that the SA was filed on 09.08.2023. Hence the applicant is not entitled to challenge the possession notice in this SA. Even assuming for argument’s sake that possession notice was not served to the applicant, issuance of possession notice is not at all required or mandatory for the defendants to approach the Chief Judicial Magistrate Court seeking assistance for taking physical possession of the secured asset.

¶29

The applicant has produced only copy of the application filed in CMP No.2821/2023 before the Chief Judicial Magistrate Court, Kalpetta. It is also not the contention of the applicant that the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14 (1) (b) of the SARFAESI Act, 2002 were not complied with in respect of filing of affidavit in CMP No.2821/2023. A perusal of Annexure-A2 order shows that learned Chief Judicial Magistrate Kalpetta after having perused the contents of the affidavit and the documents filed in support of the affidavit and having satisfied over the same, passed order appointing Advocate Commissioner to take physical possession of the secured asset. This Tribunal does not find any infirmity in the above order.

¶30

Though it is an admitted fact that the credit facility availed by the applicant from the 1^st defendant bank is the agricultural KCC facility, no material has been placed before this Tribunal to substantiate the claim of the applicant that the secured asset offered by her as the collateral security for the aforesaid said credit facility is the agricultural property. Hence, this Tribunal does not find any substance in the submission of the applicant that secured asset is agricultural property.

¶31

The applicant having failed to prove her case is not entitled to get the relief sought for in the SA.

¶32

In fine, this SA No.412 of 2023 stands dismissed. There shall be no order as to costs.

¶33

Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 25^th day of November, 2024.

¶34

(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 5

SA No.412 of 2023

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

¶39

Sl. No.	Date	Particulars
1.	06.04.2023	True copy of the application filed before the Chief Judicial Magistrate Court Kalpetta.	Annexure-A1
2.	12.05.2023	True copy of the order of Chief Judicial Magistrate Court Kalpetta in CMP No.2821/2023.	Annexure-A2
3.	02.08.2023	True copy of the notice for inspection issued by the Advocate Commissioner inCMP No.2821/2023.	Annexure-A3

¶40

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

¶41

Sl. No.	Date	Particulars
1.	16.01.2023	True copy of the Demand Notice issued by the 2^nd defendant.	Annexure-B1
2.	---	True copy of the postal acknowledgement card evidencing receipt oftheDemandNotice.	Annexure-B2
3.	24.03.2023	True copy of the possession notice issued by the 2^nd defendant	Annexure-B3
4.	---	True copy of the possession notice publishedin ‘Madhyamam’daily.	Annexure-B4
5.	---	True copy of the possession notice publishedin ‘New Indian Express’daily	Annexure-B5

¶42

(Su. WILLYAHM) PRESIDING OFFICER

¶43

Mj/

¶44

Page 5 of 5

Haseena K v. Idbi Bank

Case brief

What is this about?

What did the court decide?

Haseena K v. Idbi Bank

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

Coram

Case details

Similar cases

Indusind Bank Limited versus Aditi

Hemaben Prafulbhai Parekh versus Dcb Bank Limited

Ms Maimuna International a Partnership Firm versus State Bank of India

Union Bank of India (Corporation Bank) versus Jagdeep Singh

Harkirat Singh versus Punjab National Bank

Maa Sherawali Enterprises versus Dakshin Bihar Gramin Bank