Dismissed

Bushara Aseez v. Authorised Officer South Indian Bank

DRT5 Feb 2024SA/447/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicant's Securitization Application seeking to set aside Notices under Sections 13(2) and 13(4) of the SARFAESI Act. The Tribunal held the applicant failed to challenge the notices within the statutory timeline and that payments were duly credited.

What the court decided

AI extract

Bushara Aseez versus Authorised Officer South Indian Bank — Arbitration | 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 5^th DAY OF FEBRUARY, 2024

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

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S.A No. 447 of 2023

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Between

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Smt. Bushara Aseez, W/o. Aseez Tharavattath, Tharavattath House, Thiruvallur P.O, Vatakara, Kozhikode -673541.

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--- Applicant

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And

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The Authorised Officer, (Under the SARFAESI Act, 2002) South Indian Bank, Regional Office, Kozhikode 1^st Floor, Happy Towers, Vaikkom Mohammed Basheer Road Mananchira (PO), Kozhikode-673001.

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The Senior Manager, South Indian Bank, Vatakara Branch, Arkay Building, Near HOP Edodi, Vatakara, Kozhikode-673101.

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The Branch Manager, South Indian Bank, Vatakara Branch, Arkay Building, Near HOP Edodi, Vatakara, Kozhikode-673101.

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--- Defendants

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SA No.447 of 2023

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This Securitization Application coming on 05.12.2023 for final hearing before me in the presence of Mr. Terry V.James, Advocate for the Applicant and Mr. Anto Thomas Adipuzha, Advocate 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:

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O R D E R

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This Securitisation Application was filed on 25.08.2023 seeking to call for the records leading to Annexure-12 notice dated 16.08.2023 of the Advocate Commissioner proposing taking physical possession of the schedule property on 02.09.2023 and to set aside the same and to set aside the records leading to notice dated 13.07.2021 under Section 13(2) of the SARFAESI Act, 2002 and to set aside recovery proceedings initiated without notice under Section 13(2) and 13(4) of the SARFAESI Act, 2002 and cost of these proceedings from the defendants.

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Availment of overdraft facility of Rs.10 Lakhs and term loan of Rs.10 Lakhs by the applicant and her husband from the 2^nd defendant bank upon creation of equitable mortgage over the property belonging to her husband situated in Re. Sy. No.152/9 in Thiruvallur Village, Kozhikode and default in repayment of the outstanding loan due is admitted by the applicant in the SA. Therefore, the loan accounts of the applicant and her husband came to be classified as Nonperforming Asset on 24.03.2021 with effect from 29.11.2020. The receipt of the recall notice dated 13.4.2021, Annexure-A2 and subsequently the demand notice dated 13.7.2021, Annexure-A3 is admitted by the applicant. It is not in dispute that neither the applicant nor her husband did send any objection/representation to Annexure-A3 demand notice.

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It is the contention of the applicant that after receipt of Annexure-A3 notice, her husband made payments of Rs.13,000/Rs.87,000/-, Rs.30,000/- Rs.13,000/- Rs.38,700/- and Rs.24,800/totalling to Rs.2,06,500/- to the 3^rd defendant bank. In support of her above claim, she has produced Annexure-A4, copy of challan receipt. The applicant has also averred in the SA that a sum of Rs50,000/was paid on 03.01.2023 thereafter and that the challan for the above said payment is not available. According to the applicant, the aforesaid payments were not given credit to the loan accounts of the applicant. The above contention of the applicant is stoutly refuted by the defendants in the written statement contending that the amounts remitted by the borrowers were properly credited to the loan accounts and that they had not settled the outstanding dues. A perusal of

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Page 2 of 5

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SA No.447 of 2023

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copies of statement of accounts pertaining to overdraft facility, Annexure-B1 and term loan facility, Annexure-B2 shows that the payments made by the applicant and her husband were given credit to the loan account and that still a sum of Rs.11,29,243.27 towards the overdraft facility as on 12.09.2023 and a sum of Rs.9,76,623.24 towards Term Loan facility as on 12.09.2023 is the outstanding loan dues.

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Possession notice dated 15.03.2022, Annexure-B5 was issued for taking symbolic possession of the secured asset. The receipt of the possession notice was admitted by the applicant in the S.A. The contention of the defendants in the written statement that AnnexureA5 possession notice was not challenged by the applicant within time is neither denied nor refuted by the applicant.

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The applicant filed W.P (C) No.12098/2023 before the Hon'ble High Court of Kerala, which by its judgment dated 05.04.2023, Annexure-A7 directed the applicant to pay Rs.4,00,000/- on or before 30.04.2023 and to approach the Bank thereafter with a proposal for payment of balance amount. The payment of Rs.4,00,000/- made by the applicant was accepted by the 3^rd defendant bank. The applicant submitted letter dated 28.04.2023, Annexure-A8 to the 3^rd defendant bank requesting to regularize the term loan account and to pay the outstanding OD loan account in 12 monthly installments. The request of the applicant to clear the OD amount by installments was rejected by the 2^nd defendant as per Annexure-A10 letter. The applicant has also admitted in the SA with regard to dismissal of W.P.(C) No.16463/2023 challenging Annexure-A10 letter by the Hon'ble High Court of Kerala by its judgment dated 24.05.2023, Annexure-A11.

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On application and affidavit filed by the defendant in Crl. M.P. No.2117/2022 before the Chief Judicial Magistrate Court, Kozhikode, Order came to be passed appointing Advocate Commissioner for taking physical possession of the secured asset. Pursuant to the above order Advocate Commissioner issued notice dated 29.3.2023 to the applicant.

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The main relief sought for by the applicant in the SA is to set aside Annexure-A12 notice issued by the Advocate Commissioner for taking physical possession of the secured asset. The applicant has not produced copy of the petition and the affidavit filed by the defendants in Crl. M.P. No.2117/2022 and also copy of the order passed therein. It is also not the contention of the applicant in the SA that the details required under the proviso (i) to (ix) to the provisions under Section 14 of the SARFAESI Act, 2002 were not furnished in the affidavit filed in Crl. M.P. No.2117/2022. The applicant has also not stated in the affidavit as to whether the Order, Annexure-B8 passed

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Page 3 of 5

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SA No.447 of 2023

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by the learned Chief Judicial Magistrate, Kozhikode suffers from any infirmity or flaw. Advocate Commissioner issued notice pursuant to the direction given to him by the learned Chief Judicial Magistrate Kozhikode to take physical possession of the secured asset. Hence Annexure-A12 notice cannot be challenged in any manner, without challenging the measures in respect of the affidavit filed in Crl. MP No.2117/2022 and the order passed therein.

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The applicant did not send any objection/representation to the demand notice Annexure-A3. Therefore the applicant is not entitled to get the relief of setting aside the demand notice. Possession notice Annexure-A5 was issued on 15.o3.2022. The applicant without challenging the same within the period of 45 days from the date of issuance of the possession notice, is not entitled to challenge the same in the present SA which was filed on 25.8.2023. The applicant has failed to establish her case as to how she is entitled to get the reliefs sought for in the SA.

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In view of the foregoing reasons, this Tribunal holds that the applicant is not entitled to get the reliefs sought for in this SA. In the result, S.A No. 447 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 5^TH day of February, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 4 of 5

SA No.447 of 2023

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

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Sl. No.	Date	Particulars
1.	25.03.2021	True copy of notice issued by the 3^rd defendant to the applicant.	Annexure-A1
2.	13.04.2021	True copy of recall notice sent by 3^rd defendant to the applicant and her husband.	Annexure-A2
3.	13.07.2021	True copy of notice sent by the 1^st defendant under Section.13(2) of the SARFAESI Act, to the applicant and her husband.	Annexure-A3
4.	---	True copy of challan evidencing payment of Rs.13,000/-, Rs.87,000/-, Rs.30,000/-, Rs.13,000/-, Rs.38,700/- and Rs.24,800/- made by applicant/ husband to the defendant bank.	Annexure-A4
5.	15.03.2022	True copy of possession notice sent by the1^st defendant to the applicant.	Annexure-A5
6.	24.11.2022	True copy of sale notice issued by the 1^st defendant to the applicant.	Annexure-A6
7.	05.04.2023	True copy of judgment of the Hon'ble High Court of Kerala in W.P.(C) No.12098/2023.	Annexure-A7
8.	28.04.2023	True copy of letter of the applicant’s husband issued through the applicant to the 3^rd defendant.	Annexure-A8
9.	---	True copy of Tem Loan Pass sheet of the applicant issued by the defendant bank forthe period4.11.2017to 21.5.2023.	Annexure-A9
10.	09.05.2023	True copy of letter sent by the 2^nd defendant to the applicant.	Annexure-A10
11.	24.05.2023	True copy of judgment of the Hon'ble High Court of Kerala in W.P.(C) No.16463/2023.	Annexure-A11
12.	16.08.2023	True copy of notice of Advocate Commissioner.	Annexure-A12

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 5 of 5

Bushara Aseez v. Authorised Officer South Indian Bank

Case brief

What is this about?

What the court decided

Bushara Aseez v. Authorised Officer South Indian Bank

Case brief

What is this about?

What the court decided

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