Dismissed

Sumam Kuruvila George v. Federal Bank

DRT22 Oct 2024SA/469/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed a Securitization Application challenging the recovery proceedings initiated under SARFAESI Act. It held there were no procedural irregularities in the CJI Court's order appointing a Commissioner and found the demand notice served by publication was valid, granting no relief to the applicant.

What did the court decide?

The Securitization Application stands dismissed. No costs.

Sumam Kuruvila George versus Federal 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 22^nd DAY OF OCTOBER, 2024

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

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SA No.469/2023

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Between

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Sumam Kuruvila George, W/o. Binu George Inchikkal, Inchikkal House, Kalichanadukom, Nileswar, Kasargode -671 314.

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--- Applicant

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And

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The Federal Bank Limited, Represented by its

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Authorised Officer,

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LCRD Division, Kannur, Aditya Tower, 3^rd Floor,

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Kannur -670 002.

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Authorised Officer,

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The Federal Bank Limited, LCRD Division, Kannur, Aditya Tower, 3^rd Floor, Kannur -670 002.

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--- Defendants

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This Securitization Application coming on 30.09.2024 for final hearing before me in the presence of Ms. Jayalakshmy, Advocate representing Mr. Philip T. Varghese, Counsel appearing for the Applicant and Mr. Santhosh Kumar K., 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:

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SA No.469/2023

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O R D E R

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This Securitisation Application was filed on 04.09.2023 seeking to issue appropriate directions to the defendants not to disrupt the peaceful possession of the applicants in the property pursuant to Annexure – A4 and Annexure – A1 notice and to declare the entire proceedings initiated by the defendants under SARFAESI Act as per Annexure – A3 petition resulting in Annexure – A4 order as illegal and to grant other reliefs and to allow costs and compensation to the applicants.

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The applicant has admitted the availment of housing loan of sum of Rs.45,00,000/- on 17.06.2015 alongwith her husband from the 1^st defendant bank upon creation of security interest over their immovable property which is the SA subject matter of the property. The applicant has not specifically averred in the SA as to whether repayment towards outstanding loan due was being made regularly. However, it is revealed from the perusal of the written statement of the defendants that since the applicant and her husband defaulted in repayment of loan due, the loan account was classified as NPA.

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Hence, demand notice dated 27.12.2024 Annexure-B1 was issued to the applicant and her husband. According to the defendants, the demand notices sent to both of them were returned unserved. Annexure – B2 returned postal covers indicate that Demand Notice were returned with postal remark as ‘not known. The defendants have produced Annexure – B3 copies of newspapers publication and Annexure – B4 copy of photographs in order to show that Demand Notice were published in two newspapers one in Malayala Manorama Edition dated 10.08.2022 and Hindu Edition (English) dated 10.08.2020 and that it was affixed. Therefore, it is evident that Demand Notice shall be deemed to have been served on the applicant and her husband. Indisputably, the applicant neither sent any objection/representation to the demand notice nor did she clear off her liability due to the defendant bank.

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Therefore, the defendants issued Annexure–B5 possession notice dated 04.02.2023 for taking physical possession of the secured asset. The applicant has averred in the SA that she received the possession notice. But according to the defendants, possession notice sent to the applicant and the co-borrower were returned with postal endorsement “addressee not known”. In order to prove their case, the defendants have produced copy of returned postal cover as AnnexureB9. A perusal of the same shows that the possession notice was not

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Page 2 of 5

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SA No.469/2023

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served to the applicant and the co-borrower. Hence, the averment of the applicant that she received the possession notice appears to be doubtful.

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Since the applicant and the co-borrower failed to pay their liability due to the 1^st defendant bank. The defendants filed application and affidavit Annexure A3 before the Chief Judicial Magistrate Court, Kasargode. Order dated 04.07.2023 Annexure – A4 came to be passed in Crl. M. P. No.2069/2023 appointing Advocate Commissioner for taking physical possession of the secured asset. The Advocate Commissioner issued notice dated 09.08.2023 Annexure–A1 to the applicant and other co-borrower informing them that she would take physical possession of the property on or before 25.08.2023.

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The counsel appearing for the applicant submitted that the Chief Judicial Magistrate Court, Kasargod ought to have held that Sub Section 4 of Section 13 of the SARFAESI Act, 2002 confers the rights upon the secured creditor to take possession of the secured asset of the borrower only if he fails to discharge his liability within the period specified and that the Chief Judicial Magistrate Court failed to note that application and affidavit filed in Crl. M. P. No. 2069/2023 is irregular and improper and that date of classification of account as NPA and the total amount outstanding are not stated in the application or the affidavit and that therefore, SA may be allowed as prayed for.

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Per contra, the counsel appearing for the defendant submitted that the defendants have complied with statutory requirements in respect of the filing of petition and affidavit in Crl. M. P. No. 2069/2023 and that they produced all relevant documents including the account statement alongwith the application and affidavit and that therefore, no irregularity has been committed in respect of the filing of affidavit and applicant in respect of Crl. M. P. No. 2069/2023 and that there is no illegality in the order passed by the Chief Judicial Magistrate Court, Kasargod and that order appointing Advocate Commissioner and issuance of the notice by the Advocate Commissioner is valid and that therefore, the SA may be dismissed with costs to these defendants.

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In Annexure – A3 application and affidavit, it is clearly stated that both the respondents (the applicant and the co-borrow) after having availed housing loan of Rs.45,00,000/- committed default in repayment of the financial assistance granted to them. It is seen from perusal of Annexure – A4 order that the Chief Judicial Magistrate

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Page 3 of 5

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SA No.469/2023

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Court, Kasargod after having perused the contention of the petition, affidavit and documents filed in support of the petition and affidavit and having satisfied over the same, passed order appointing Advocate Commissioner to take physical possession of the secured asset. Hence, this Tribunal does not find any procedural irregularity or infirmity either in Annexure–A3 application and affidavit or AnnexureA4 order.

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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.

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In the result, SA No.469/2023 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 22^nd day of October, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 4 of 5

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SA No.469/2023

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

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Sl. No.	Date	Particulars
1.	09.08.2023	True copy of Advocate Commissioner's notice	Annexure-A1
2.	04.02.2023	True copy of possession notice issued by the defendants under Section 13(4) ofSARFAESI Act	Annexure-A2
3.	24.05.2023	True copy of petition filed as CMP No.2069/2023 alongwith the affidavit under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court,Kasargod	Annexure-A3
4	04.07.2023	True copy of Order passed by the Chief Judicial Magistrate Court, Kasargod in CMP No.2069/2023	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.	27.12.2024	True copy of the Demand Notice.	Annexure-B1
2.	---	True copy ofthereturned postalcover	Annexure-B2
3.	10.08.2022	True copy of the Newspaper Publication of Demand Notice in Malayala Manorama andin TheIndian Express	Annexure-B3
4.	----	True copy of the photograph of affixture ofdemandnotice	Annexure-B4
5.	04.02.2023	True copy ofthe possession notice	Annexure-B5
6.	06.02.2023	True copy ofthe postal receipts	Annexure-B6
7.	----	True copy of the photographs of affixture ofpossession notice	Annexure-B7
8.	----	True copy of the Newspaper publication ofthe possession notice	Annexure-B8
9.	----	True copy ofthereturned postalcover	Annexure-B9

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 5 of 5

Sumam Kuruvila George v. Federal Bank

Case brief

What is this about?

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Sumam Kuruvila George v. Federal Bank

Case brief

What is this about?

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