Dismissed

Abdul Nazar v. Urban Co. operative Bnak Ltd.

DRT15 Oct 2024SA/516/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed the applicant's securitization application challenging the bank's possession proceedings. The Court held the applicant failed to comply with High Court directions to repay dues and that regularization is not a relief under the SARFAESI Act.

What did the court decide?

The Securitization Application stood dismissed with no costs awarded.

Abdul Nazar 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 OCTOBER, 2024

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

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S.A No. 516 of 2023

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Between

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Abdul Nazar, S/o. Ali, Residing at Palakkavalappil House, Pookkayil Bazar P.O., Malappuram – 676 107.

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--- Applicant

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And

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The Tirur Urban Co-operative Bank Ltd., Tirur Main Branch,

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Urban Bank Building,

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City Junction, Tirur P.O.,

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Tirur, Malappuram-676 101.

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The Authorized Officer,

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The Tirur Urban Co-operative Bank Ltd., Tirur Main Branch, Urban Bank Building, City Junction, Tirur P.O., Tirur, Malappuram-676 101.

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--- Defendants

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This Securitization Application coming on 26.09.2024 for final hearing before me in the presence of Mr. Tony Thomas Inchiparambil, Advocate for the Applicant and Mr. Venkideswaran S. 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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SA No.516 of 2023

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O R D E R

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This Securitisation Application was filed on 19.09.2023 seeking to set aside Annexure-A1 notice issued by the Advocate Commissioner and to declare that Annexure-A2 order passed by the Chief Judicial Magistrate Court, Manjeri is not in accordance with the provisions of the SARFAESI Act and to declare that Annexure-A3 application filed by the defendant bank is incorrect and to allow the applicant to upgrade the overdraft facility by paying the defaulted interest and also to permit him to regularise the term loan after paying the outstanding amount.

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The applicant has admitted the availment of credit facility from the 1^st defendant bank. Annexure-B1 is the loan application dated 20.08.2019 submitted by the applicant to the 1^st defendant bank. Annexure-B3 is the cash credit bond executed by the applicant in favour of the 1^st defendant bank. A perusal of Annexure-B2 copy of the mortgage deed and Annexure-B4 copy of memorandum of title deeds produced by the defendants shows that the applicant has created equitable mortgage over his land admeasuring 16 cents in Re.Sy.No.145/2 of Porur Desom, Tirur Village, Malappuram District and residential building bearing Door No.1/1 of Tirur Municipality by deposit of title deed in favour of the 1^st defendant bank for the aforesaid availment of credit facility.

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The applicant has not averred in the SA as to whether he regularly repaid the outstanding amount to the 1^st defendant bank. But it is seen from the perusal of the written statement of the defendants that since the applicant defaulted in repayment of the outstanding loan due, his loan account was classified as NPA on 01.04.2020 and that demand notice dated 27.12.2021 Annexure-B6 was issued to the applicants calling upon them to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. The defendants have produced copy of the postal acknowledgement card Annexure-B7 in order to show that the Demand Notice was served on the applicant. Indisputably, the applicant neither sent any objection/representation to the demand notice nor did he clear off their liability due to the defendant bank.

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Since the applicant failed to respond to the terms of the Demand Notice, possession notice dated 14.03.2022, Annexure-B8 was issued for symbolically taking physical possession of the secured asset. In Annexure-B8 the applicant has put his signature in token of receipt of the possession notice. The defendants have produced copy of photograph, Annexure-B9 and copies of paper publications Annexure-B11 and B12 in order to prove their contention that

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Page 2 of 6

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SA No.516 of 2023

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possession notice was conspicuously affixed on the secured asset and that it was published in two leading newspapers one in Malayala Manorama edition dated 19.03.2022 and one another in Deshabhimani edition dated 19.03.2022. Hence the contention of the applicant that possession notice was not issued and that nonissuance of the possession notice was not mentioned in Annexure-A3 application and affidavit is absolutely incorrect. Annexure-B5 proves the registration of security interest for the secured asset with the CERSAI.

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The defendants approached the Chief Judicial Magistrate Court Manjeri and filed application and affidavit Annexure-A3 under Section 14 (1) of the SARFAESI Act, 2002. Order, Annexure-A2 came to be passed on 26.07.2023 in MC No.333/2023 appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued Annexure-A1 notice dated 12.09.2023 informing the applicant that he would take physical possession of the secured asset on 21.09.2023. The applicant having aggrieved against the above measures has filed this SA seeking for the reliefs stated supra.

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The applicant having failed to send objection/representation to the Demand Notice is not entitled to contend now that no document is produced by the defendants to support their contention that he committed default in repayment of the outstanding loan due and that classification of loan account is against the RBI guidelines.

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A perusal of copy of affidavit, Annexure-A3 shows that all the details such as availment of credit facility by the applicant from the 1^st defendant bank upon creation of security interest over his immovable property by deposit of title deeds, default in repayment of the outstanding loan due, classification of loan account as NPA, issuance of Demand Notice to the applicant, non-submission of objection/ representation to the Demand Notice, repayment to the tune of Rs.40,00,000/- by the applicant, huge balance due to the 1^st defendant bank, the outstanding due as on the date of filing of the affidavit, ie., 21.07.2023, Rs.30,64,898/-, secured asset being free of any tenancy hold right and description of the secured asset are furnished. Admittedly, in Annexure-A3 affidavit the extent of the secured asset is mentioned as 6 cents and in the application the extent of the property is mentioned as 16 cents. In Annexure-B4 copy of memorandum of title deed also the extent of property is mentioned as 16 cents. Thus it is evident that the extent of the secured asset is 16 cents and that due to inadvertent mistake or typographical error, the extent of land is mentioned as ‘6’ instead of ‘16’ in Annexure-A3 affidavit. The applicant has not pointed out in the SA as to what prejudice was caused to him on account of wrong mentioning of the

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Page 3 of 6

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SA No.516 of 2023

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extent of the land as stated above. Hence this Tribunal does not find any force in the above contention of the applicant.

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A perusal of Annexure-B2 order shows that the learned Chief Judicial Magistrate Manjeri after having perused the contents of the affidavit and after having satisfied over the same passed order in MC No. 333/2023 appointing Advocate Commissioner to take physical possession of the secured asset. This Tribunal does not find any infirmity or procedural irregularity in the above order.

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The applicant filed WP(C) No.9292/2022 before the Hon’ble High Court of Kerala praying to permit him to pay off the amounts outstanding to respondent bank in easy installments. Annexure-B3 judgment came to be passed directing the applicant to pay a sum of Rs.5,00,000/- on or before 30.03.2023 and the balance outstanding amount along with future interest and costs in 11 equal monthly installments. Indisputably, the applicant did not comply with the above direction. One of the reliefs sought for by the applicant in the SA is to permit the applicant to upgrade the overdraft facility by paying the defaulted interest and to regularize the term loan. The applicant having failed to comply with the above direction of the Hon’ble High Court of Kerala is not entitled to seek such relief. Further, the above relief sought for by the applicant is not a measure contemplated under Section 13 (4) of the SARFAESI Act, 2002. It is for the applicant to approach the 1^st defendant bank for such relief.

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The applicant has miserably failed to establish his case, so as to get the reliefs sought for in the SA.

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In the result, S.A No.516 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 October, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 6

SA No.516 of 2023

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

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Sl. No.	Date	Particulars
1.	12.09.2023	True copy of the Advocate Commissioner notice issued to the applicant.	Annexure-A1
2.	26.07.2023	Certified copy of order in MC No.333 of 2023 by the Chief Judicial Magistrate CourtManjeri.	Annexure-A2
3.	21.07.2023	Certified copy of application along with affidavit filed before the Chief Judicial Magistrate Court Manjeri by the defendant bank.	Annexure-A3

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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.	---	Copy of loan application with translation.	Annexure-B1
2.	09.09.2019	Copy of the mortgage deed with translation.	Annexure-B2
3.	09.09.2019	Copy of cash credit bond.	Annexure-B3
4.	---	Copy of memorandum of deposit of title deeds	Annexure-B4
5.	---	Copy of CERSAI registration acknowledgement.	Annexure-B5
6.	27.12.2021	Copy of Demand Notice .	Annexure-B6
7.	---	Copy of the postal acknowledgement card of Annexure-B6DemandNotice	Annexure-B7
8.	14.03.2022	Copy of possession notice duly acknowledgedwithtranslation.	Annexure-B8
9.	---	Copy of the photograph of possession notice affixed onthe secured asset.	Annexure-B9
10.	01.08.2019	Copy of property tax receipt issued by Tirur Municipality.	Annexure-B10
11.	19.03.2022	Copy of newspaper publication of possession notice in Malayala Manoramadailywithtranslation.	Annexure-B11

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SA No.516 of 2023

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12.	19.03.2022	Copy of newspaper publication of possession notice in Deshabhimani dailywithtranslation.	Annexure-B12
13.	07.03.2023	Copy of judgment of Hon’ble High Court of Kerala in WP(C) No. 9292 of 2022 filed by theapplicant.	Annexure-B13
14.	---	Copy of petition MC No. 333 of 2023 filed before the CJMCourt,Manjeri.	Annexure-B14
15.	26.07.2023	Copy of order of Chief Judicial Magistrate Court Manjeri in MC No. 333 of2023.	Annexure-B15
16.	02.09.2023	Copy of Advocate Commissioner notice forsiteinspection.	Annexure-B16
17.	12.09.2023	Copy of Advocate Commissioner notice fortaking possession.	Annexure-B17
18.	---	Copy of statement of loan account with banker’s certificate.	Annexure-B18
19.	08.11.2023	Copy of certificate detailing amount due to the bank.	Annexure-B19
20.	---	Copy of RBI Master Circular on classification of assets during COVID pandemic period.	Annexure-B20

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 6 of 6

Abdul Nazar v. Urban Co. operative Bnak Ltd.

Case brief

What is this about?

What did the court decide?

Abdul Nazar v. Urban Co. operative Bnak Ltd.

Case brief

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What did the court decide?

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