Dismissed

Ashrafudheen K v. Urban Co. operative Bnak Ltd.

DRT15 Jan 2024SA/434/2023

Case brief

AI extract

What is this about?

TheDebtsRecoveryTribunaldismissedtheapplicant'sSecuritizationApplication challenging the nullity of an Advocate Commissioner notice and earlier SARFAESI measures. The court held the applicant was estopped from disputing property details and failed to prove procedural irregularities.

What did the court decide?

The Securitisation Application was dismissed; no relief was granted to the applicant.

Ashrafudheen K versus Urban Co. operative Bnak Ltd. — 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 15^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. 434 of 2023

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Between

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Ashrafudheen K., S/o. Muhammedkutty, Kodiyil House, Kadampuzha P.O Tirur Taluk, Malappuram-676553.

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--- Applicant

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And

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The Kottakkal Co-Operative Urban Bank Ltd., Represented by Authorised Officer/ Chief Executive Officer, No.1378, Head Office, Kottappady, Kottakkal Post, Malappuram – 676 503.

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--- Defendant

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This Securitization Application coming on 15.12.2023 for final hearing before me in the presence of Mr. Sebin Thomas, Advocate for the Applicant and Mr. B.Satheez Chandran, Advocate for the defendant 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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SA No.434 of 2023

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O R D E R

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This Securitisation Application was filed on 22.08.2023 seeking to declare Annexure-A7 notice and all the procedures taken before and thereafter as null and void and without any legal grounds.

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Availment of credit facility from the defendant bank and default in repayment of the outstanding due is admitted by the applicant in the SA. The applicant has not specifically averred in the SA with regard to creation of security interest over the immovable property by way of deposit of title deed in favour of the defendant bank for the aforesaid credit facility. However, he has averred in the SA that on the date of executing the loan agreement, the Officers of the defendant bank took the title deeds of 9.55 Ares of land and the residential house owned by him.

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Due to default in repayment of the outstanding loan due, SARFAESI measures were initiated by the defendant bank in respect of the secured asset. Issuance of Annexure-A3 publication sale notice is admitted by the applicant. However, it is the contention of the applicant that the details of the property shown in the sale deed of the applicant, Annexure-A5 and the details of the property shown in Annexure-A3 are different. The above averment of the applicant is stoutly refuted by the defendant contending that the boundaries were shown in Annexure-A3 as per the location sketch provided by the applicant and that the boundaries in Annexure-A5 and A3 are not different and that the description of the boundaries of the secured asset is clearly identifiable and that the applicant has not raised such objections in SA No.158 of 2018 and SA No.471/2022 and that once the applicant waived his statutory right for raising such objection, he is estopped from raising the same in this SA. A perusal of AnnexureA3 and A5 would show that the property mentioned in both documents is one and the same. Further, it is not the case of the applicant that the property mentioned in Annexure-A3 and A5 is not the subject matter of the SA. Moreover, the applicant without challenging the sale notice, is estopped from raising the same now. Further, the relief sought for by the applicant in the SA is not in respect of Annexure-A3, but in respect of A7 notice issued by the Advocate Commissioner.

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The applicant has not produced the copy of the affidavit filed by the defendant in M.C. No.263/2022 before the Chief Judicial Magistrate Court, Manjeri. He has also not produced the copy of the order passed in M.C. No.263/2022. It is also not the contention of the applicant that the details contemplated under the proviso (i) to (ix) to

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Page 2 of 4

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SA No.434 of 2023

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the provisions of Section 14(1) of the SARFAESI Act, 2002 are not furnished in the aforesaid affidavit and that the order passed by the learned Chief Judicial Magistrate Manjeri suffers from any infirmity or procedural irregularity. The Advocate Commissioner issued AnnexureA7 notice to the applicant pursuant to the direction given to him in M.C. No.263/2022 by the learned Chief Judicial Magistrate, Manjeri. Therefore Annexure-AA7 notice cannot be challenged in any manner. However, the applicant has failed to prove that all the procedures taken under Section 14(1) of the SARFAESI Act, 2002 are not in accordance with the provisions of the SARFAESI Act, and the Rules made there under.

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In view of the foregoing reasons and discussions, this Tribunal holds that the applicant is not entitled to get the reliefs sought for in this SA. In the result, S.A No. 434 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 15^th day of January, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 3 of 4

SA No.434 of 2023

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

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Sl. No.	Date	Particulars
1.	05.03.2022	True copy ofthe account statement	Annexure-A1
2.	10.11.2022	True copy of the payment receipt.	Annexure-A2
3.	09.03.2022	True copy of the paper publication	Annexure-A3
4.	09.03.2022	True copy of the translation of the paperpublication.	Annexure-A4
5.	18.12.2001	True copy of the sale deed in favour of theapplicant.	Annexure-A5
6.	18.12.2001	True copy ofthe translationofsale deed	Annexure-A6
7.	18.08.2023	True copy of the Advocate Commissioner notice.	Annexure-A7

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 4 of 4

Ashrafudheen K v. Urban Co. operative Bnak Ltd.

Case brief

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Ashrafudheen K v. Urban Co. operative Bnak Ltd.

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