Dismissed

Mehamood Kiliyanni v. State Bank of India

DRT12 Sept 2024SA/413/2024

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal at Ernakulam dismissed the Securitization Application filed against three SBI defendants seeking to challenge the issuance of Notice of Demand, Notice of Possession, and appointment of an Advocate Commissioner under Section 14 of the SARFAESI Act, 2002.

What did the court decide?

Securitization Application No.413 of 2024 stands dismissed with no costs to the defendants.

Mehamood Kiliyanni versus State Bank of India — 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 12^th DAY OF SEPTEMBER, 2024

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

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S.A No. 413 of 2024

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Between

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Mehamood Kiliyanni, S/o. Kunjavaran, Kiliyanni House, Kodur P.O. Malappuram District-676 504.

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--- Applicant

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And

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The State Bank of India, Stressed Asset Recovery Branch-II, RS Building, M.G. Road, Ernakulam -682 011, Represented by its Chief Manager.

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The Authorized Officer, The State Bank of India, Stressed Asset Recovery Branch-II, RS Building, M.G. Road, Ernakulam -682 011.

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The Manager, State Bank of India, Main Branch, Malappuram, Malappuram – 676 505, Represented by its Branch Manager.

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--- Defendants

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SA No.413 of 2024

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This Securitization Application coming on 31.07.2024 for final hearing before me in the presence of Mr. P. Samsudin, Advocate for the Applicant and Mr. Rajesh Rajagopala Pillai, Advocate for the 1^st and 2^nd defendants and 3^rd defendant having been set exparte and upon hearing arguments of learned Counsels for both the parties and upon perusing the material on records, this Tribunal delivered the following:

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O R D E R

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This Securitisation Application was filed on 03.06.2024 seeking to set aside Annexure-A2 and A3 and to declare that the coercive actions initiated against the secured assets is contrary to the provisions of SARFAESI Act and illegal and to prohibit the defendants from proceeding with further steps to dispossess the applicants and family members of the secured assets.

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Availment of credit facilities to a tune of Rs.53,69,000/- from the 3^rd defendant bank upon creation of equitable mortgage by deposit of title deeds as per Annexure-D10 in respect of the immovable property belonging to the applicant in favour of the 3^rd defendant bank and default in repayment of the outstanding loan due is admitted by the applicant in the S.A. Hence the loan account of the applicants came to be classified as Non-performing Asset and demand notice dated 02.06.2023 Annexure-D1 was issued to the applicant calling upon him to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. The defendants 1 and 2 have produced Annexure-D1 copy of postal acknowledgment card to show that the Demand Notice was served on the applicant. The defendants 1 and 2 have also produced Annexure-D3 and D4 copies of paper publications and D5 copy of photograph in order to show that Demand Notice was published in Hindu Edition and Mathrubhoomi daily edition dated 03.08.2023 and that Demand Notice was affixed on the conspicuous part of the secured asset. Hence the contention of the applicant that he was not served with Demand Notice is absolutely incorrect. The applicant neither sent any objection/ representation to the demand notice nor did he clear off his liability due to the 3^rd defendant bank.

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Therefore, possession notice dated 03.11.2023 Annexure-D6 was issued for symbolically taking possession of the secured asset. The defendants have produced Annexure-D7 copy of postal acknowledgment card, Annexure-D8 copy of photograph and Annexure-D9 copies of paper publications in order to prove their contention that possession notice was served on the applicant and that it was affixed on the conspicuous part of the secured asset and that it was published in Mathrubhoomi edition and The Hindu edition.

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Page 2 of 6

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SA No.413 of 2024

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The defendants 1 and 2 filed application and affidavit AnnexureA1 under Section 14 of the SARFAESI Act, 2002 before the Chief Judicial Magistrate Court Manjeri. Annexure-A2 order came to be passed in MC No.317/2024 appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued Annexure-A3 notice to the applicant calling upon him to hand over the secured asset on 30.5.2024. The applicant having aggrieved against the aforesaid measures, filed this S.A.

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It is submitted by the counsel appearing for the applicant the amount due to the 3^rd defendant bank is Rs.64,29,916/- and that the worth of the secured asset is Rs.2.5 Crores and that the applicant requires a breathing time to pay the loan due and that the applicant is suffering from heart ailments and that he could not undergo expensive treatments for want of money and that Annexure-A2 order was passed without application of mind by the learned Chief Judicial Magistrate Manjeri and that therefore S.A. may be allowed.

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The counsel appearing for the defendants submitted that applicant after having availed the credit facilities for a tune of Rs.53,69,000/- committed default in repayment of the outstanding loan due and that his loan account was classified as NPA as per RBI guidelines and that even after receipt of Demand Notice and possession notice he failed to discharge his outstanding liability due to the 3^rd defendant bank and that therefore the defendants 1 and 2 approached the Chief Judicial Magistrate Court Manjeri for taking physical possession of the secured asset and that the learned Chief Judicial Magistrate Manjeri after having examined the documents and the affidavit and found that there is a prima facie case in favour of the defendants, appointed Advocate Commissioners to take physical possession of the secured asset and that the contention of that applicant that worth of the secured asset is Rs.2.5 Crores is incorrect and therefore the SA is liable to be dismissed with cost to the defendants.

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In Annexure-A1 affidavit which was filed in MC 317/2024 before the Chief Judicial Magistrate Court Manjeri, the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14 (1) of the SARFAESI Act, 2002 all the details such as availment of various credit facilities on different dates by the applicant from the 3^rd defendant bank upon creation of security interest over his immovable property, the details of the secured asset, default in repayment of the outstanding loan due, classification of loan account as NPA, issuance of Demand Notice to the applicant, failure of the applicant to send reply/objection to the Demand Notice and to repay the entire outstanding loan due, the total aggregate of outstanding amount of Rs.64,29,916/- as on today (on the date of filing of the affidavit), registration of the security interest with CERSAI are

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Page 3 of 6

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SA No.413 of 2024

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furnished. A perusal of Annexure-A2 order shows that the learned Chief Judicial Magistrate, Manjeri after having perused the documents filed along with the petition and after having satisfied over the same appointed Advocate Commissioner to take physical possession of the secured asset. Pursuant to the direction given to the Advocate Commissioner, he issued Annexure-A3 notice calling upon him to hand over the possession of the secured asset. This Tribunal does not find any procedural irregularity, such as non-compliance of the statutory requirements by the defendants in respect of filing of Annexure-A1 affidavit and petition in MC 317/2024 before the Chief Judicial Magistrate Court Manjeri and also any infirmity in AnnexureA2 order passed in MC 317/2024. The applicant has failed to prove his case so as to get the reliefs sought for in the S.A.

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In the result, S.A No.413 of 2024 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 12^th day of September, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 6

SA No.413 of 2024

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

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Sl. No.	Date	Particulars
1.	---	True copy of the petition in CMP 1161/2024 and supporting affidavit filed before the CJMCourt,Manjeri.	Annexure-A1
2.	29.02.2024	True copy of the order in MC No. 317/2024ofthe CJMCourtManjeri.	Annexure-A2
3.	27.05.2024	True copy of the notice issued by the Advocate Commissioner in CMP 1161/2024.	Annexure-A3
4.	---	True copy of the medical reports of the applicant.	Annexure-A4

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List of documents filed by the 1^st defendant along with the written statement

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Sl. No.	Date	Particulars
1.	02.06.2023	True copy of the Demand Notice		Annexure-D1
2.	---	True copy of the Acknowledgment card signed applicant.	postal by the	Annexure-D2
3.	03.08.2023	True copy of the Demand publishedin TheHinduDaily (E	Notice nglish)	Annexure-D3
4.	03.08.2023	True copy of the Demand published in Mathrubhumi (Malayalam)	Notice daily	Annexure-D4
5.	31.07.2023	True copy of the affixture repor with photograph evidencing affix the scheduled property.	t along ture on	Annexure-D5
6.	03.11.2023	True copy of the Possession Notic	e	Annexure-D6
7.	---	True copy of the Acknowledgment card evidenci receipt ofthePossession Notice.	postal ng the	Annexure-D7
8.	03.11.2023	True copy of the affixture repor with photograph evidencing affix the scheduled property.	t along ture on	Annexure-D8
9.	---	True copy of the Possession published in Mathrubhoomi & dailies.	Notice Hindu	Annexure-D9

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Page 5 of 6

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SA No.413 of 2024

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10.	16.02.2005	The memorandum	of deposit of title	Annexure-D10
		deeds evidencing	the creation of
		equitable mortgage	over properties
		havingatotalextent	of 7.28Ares.

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 6 of 6

Mehamood Kiliyanni v. State Bank of India

Case brief

What is this about?

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Mehamood Kiliyanni v. State Bank of India

Case brief

What is this about?

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