Dismissed

Mr Beeran Ali v. South Indian Bank

DRT26 Nov 2024SA/523/2024

Case brief

AI extract

What is this about?

In a Securitization Application challenging recovery proceedings under the SARFAESI Act, the Debts Recovery Tribunal held that the defendant bank complied with statutory requirements for taking possession and denied the applicant's request for restructuring benefits outside the Act's framework.

What did the court decide?

The Securitization Application was dismissed with a direction that no costs be awarded.

Mr Beeran Ali versus South Indian 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 26^th DAY OF NOVEMBER, 2024

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

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S.A No. 523 of 2024

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Between

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Beeran Ali, S/o. Mohiyadheen, Kallungal House, Mannil Thodu, Chemmad, Tirurangadi, Malappuram-676 306.

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--- Applicant

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And

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The Authorized Officer, South Indian Bank, Regional Office, Kozhikode, 1^st Floor, Happy Towrs, V.M.B. Road, Manamchira, Kozhikode – 673 001.

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--- Defendant

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This Securitization Application coming on 22.10.2024 for final hearing before me in the presence of Mr. Vinod Jabbar, Counsel appearing for the Applicant and Mr. Jojo George, Advocate appearing 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.523 of 2024

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O R D E R

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This Securitisation Application was filed on 09.08.2023 seeking to declare that the initiation of the proceedings under Annexure-A3, A4 and A5 is null and void and to declare that the defendant is not entitled to take physical possession of the secured asset under Annexure-5 notice and to direct the defendant to consider the latest re-structure measures and the benefit being declared by the RBI as well as the Central Govt. of India and to extend the same benefit to the applicant too, in view of the COVID-19 pandemic situation and to direct the defendant not to include the expenses and the incidental charges on the applicant’s account and to direct to pay the cost of this proceedings to the applicant.

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The applicant has admitted the availment of a term loan of Rs.24,00,000/- and Rs.10,00,000/- in the year 2018 and 2019 respectively from the defendant bank upon creation of security interest by deposit of title deeds in respect of the immovable property belonging to his wife, Sameera Kallungal. Default in repayment of the loan due is also admitted by the applicant.

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According to the defendant, due to default in repayment of the outstanding loan due, the loan account was classified as NPA and Demand Notice dated 30.03.2023 Annexure-B1 in respect of mortgaged loan account and Demand Notice dated 11.09.2023 Annexure-B2 in respect of housing loan account were issued to the applicant and his wife and other guarantor 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 contention of the applicant is that Demand Notice was not served to them and it was not published and affixed. The defendant has produced copy of postal acknowledgement card Annexure-B3 to prove the delivery of the Demand Notice to the applicant. Annexure-A1 is stated to be the representation dated 25.05.2023 sent by the wife of the applicant to the defendant seeking some time to pay the overdue amount and to regularize the loan account. In Annexure-A1, the Demand Notice dated 30.03.2023 is referred to. Further, in Annexure-B1 Demand Notice both applicant and his wife have signed as a token of receipt of Demand Notice. Hence the contention of the applicant that Demand Notice was not served to them is absolutely incorrect.

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It is the contention of the applicant that the representation Annexure-A1 sent by his wife to the defendant was not considered and that the same is in violation of the provisions of Section 13 (3A) of the SARFAESI Act, 2002. The rival contention of the defendant is that no such representation was sent by the wife of the applicant. The applicant has not produced any proof to prove his contention that his

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Page 2 of 5

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SA No.523 of 2024

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wife sent Annexure-A1 representation to the defendant. Hence this Tribunal does not find any substance in the above contention of the applicant. Therefore it is evident that the applicant neither sent any objection/representation to the Demand Notices Annexure-B1 and B2.

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Since the applicant failed to respond to the terms of the demand notices, Possession Notice dated 11.01.2024 Annexure-B5 was issued for taking physical possession of the secured asset. The defendant has produced Annexure-B6 and B7 in order to show that possession notice was published in the Madhyamam daily dated 11.01.2024 and in The Hindu daily dated 11.01.2024 and that it was affixed conspicuously on the secured asset. Annexure-B8 copy of Asset ID based search report evidences registration of the security interest with the CERSAI. Hence the contention of the applicant that security interest in respect of the secured asset was not registered with the Central Registry is absolutely incorrect.

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The defendant approached the Chief Judicial Magistrate Court Manjeri and filed application and affidavit Annexure-A3 under Section 14 (1) of the SARFAESI Act, 2002. Order dated 06.03.2024, AnnexureA4 came to be passed in MC No.327/2024 appointing Advocate Commissioner for taking physical possession of the secured asset. The Advocate Commissioner issued notice dated 21.03.2024 Annexure-A5 to the applicant and his wife and the guarantor informing them that he would inspect the property. The applicant having aggrieved against the above measures has filed this SA seeking for the reliefs stated as supra.

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It is not the contention of the applicant in the SA that the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14 (1) (b) of the SARFAESI Act, 2002 was not complied with by the defendant in respect of filing of the affidavit in MC No.327/2024. It is also not the contention of the applicant that the Chief Judicial Magistrate Court, Manjeri passed order without having perused the contention of the affidavit and the documents filed in support of the affidavit and having satisfied over the same. A perusal of Annexure-A3 shows that all the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14(1)(b) of the SARFAESI Act, 2002 were complied with. On perusal of Annexure-A4 order shows that the learned Chief Judicial Magistrate Manjeri after having perused the contents of the affidavit and the documents produced along with the affidavit and after having satisfied over the same, appointed Advocate Commissioner to take physical possession of the secured asset.

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One of the reliefs sought for by the applicant in the SA is to consider the latest re-structure measures and the benefit being declared by the RBI as well as the Central Govt. of India and extend

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Page 3 of 5

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SA No.523 of 2024

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the same benefit to the applicant too, in view of the COVID-19 pandemic situation. The applicant has not produced any material before this Tribunal in order to show that he approached the defendant for re-structuring the loan accounts and that his request was not considered. Be that it may so, this Tribunal cannot grant the above relief as it does not fall under any of the measures contemplated under Section 13 (4) of the SARFAESI Act, 2002. It is for the applicant to approach the defendant for availing the aforesaid benefit.

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

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In the result, S.A No.523 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 26^th day of November, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 5

SA No.523 of 2024

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

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Sl. No.	Date	Particulars
1.	25.05.2023	True copy of the representation submitted by wife of applicant to defendant.	Annexure-A1
2.	08.01.2024	True copy of Possession Notice issued by the defendant bank.	Annexure-A2
3.	---	True copy of the application filed as MC No. 327/2024 before the CJM Court Manjeri.	Annexure-A3
4.	06.03.2024	True copy of the order in MC No. 327/24ofthe CJMCourt,Manjeri.	Annexure-A4
5.	21.03.2024	True copy of the notice of Advocate Commissioner.	Annexure-A5

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List of documents filed by the defendant along with the written statement

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Sl. No.	Date	Particulars
1.	30.03.2023	True copy of the Demand Notice issued by the defendant.	Annexure-B1
2.	11.09.2023	True copy of the Demand Notice issued by the defendant.	Annexure-B2
3.	30.03.2023	True copy of the Acknowledgment card signed by Ibrahim K. with respect to the delivery oftheDemandNotice.	Annexure-B3
4.	08.01.2024	True copy of the Possession Notice	Annexure-B4
5.	11.01.2024	True copy of the Possession Notice publishedin Madhyamamdaily.	Annexure-B5
6.	11.01.2024	True copy of the Possession Notice publishedin TheHindu daily.	Annexure-B6
7.	---	True copy of the photograph regarding theaffixture of Possession Notice.	Annexure-B7
8.	---	True copy of the Asset ID No. based search report.	Annexure-B8

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 5 of 5

Mr Beeran Ali v. South Indian Bank

Case brief

What is this about?

What did the court decide?

Mr Beeran Ali v. South Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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