Dismissed

Jolly Pp v. State Bank of India

DRT9 May 2024SA/582/2023

Case brief

AI extract

What is this about?

A Debt Recovery Tribunal dismissed an application by a borrower challenging a bank's possession proceedings under the SARFAESI Act. The court rejected claims of improper notice service, lack of agricultural status for the property, and procedural defects under Section 14.

What did the court decide?

The Securitization Application was dismissed with no costs awarded to the applicant.

Jolly Pp versus State Bank of India — 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 9^th DAY OF MAY, 2024

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

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S.A No. 582 of 2023

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Between

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Jolly P.P., S/o. Poulose P.V., Peruvelil House, Ooramana P.O., Kayanad, Ernakulam – 686 730.

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--- Applicant

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And

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State Bank of India,

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Represented by its

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Authorized Officer,

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Stressed Asset Recovery Branch, 7^th Floor, Vankarath Building, Palarivattom – 682 024.

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Authorized Officer, State Bank of India, Stressed Asset Recovery Branch, 7^th Floor, Vankarath Building, Palarivattom – 682 024.

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--- Defendants

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This Securitization Application coming on 01.02.2024 for final hearing before me in the presence of Ms. Thahseem A., Advocate for the Applicant and Mr. K.K. John, 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.582 of 2023

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O R D E R

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This Securitisation Application was filed on 05.11.2018 seeking to set aside Annexure-A1 Notice and A4 Order and issue appropriate directions to the defendants not to disrupt the peaceful possession of the applicant in the property pursuant to Annexure-A1 Notice and A4 Order and declare that the entire proceedings initiated by the defendants under the SARFAESI Act as per Annexure-A2 petition as illegal.

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Availment of credit facility to the tune of Rs.40,00,000/(Rupees Forty Lakhs only) in the 1^st defendant bank upon creation of security interest over the immovable property situated in Sy. No.1114/3B in Marady Village by deposit of the title deed is admitted by the applicant in the S.A. Though the applicant has conveniently omitted to aver in the SA as to whether he was prompt in repayment of the outstanding loan due, the averments narrated in para 2 of the SA would reveal the fact that he committed default in repayment of the outstanding loan due. The defendants have averred in the written statement that due to irregular operation of the loan account, nonservicing of interest and non-repayment of the amounts due for more than three months, the loan account of the applicant was classified as Non-Performing Assets (NPA) on 08.02.2022. Thus it is evident that since the applicant committed default in repayment of the outstanding loan due his loan account was rightly classified as NPA.

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The contention of the defendants that demand notice dated 18.02.2022, Annexure-B1 was served to the applicant is refuted by the applicant. According to him, he did not receive the Demand Notice and that signature found in the acknowledgment card is not the signature of the applicant. The defendants have produced copy of postal acknowledgment card, Annexure-B1(a). Admittedly, the signature found in Annexure-B1(a) and the signatures found in the vakalath of the applicant and also in the S.A appear to be different. But a careful comparison of the style of the aforesaid signatures would reveal the fact that all the signatures should have been put only by the applicant and none else. Further, when the notice is sent through registered post with the correct address of the addressee, it shall be presumed that it was duly served upon him. In the present case at hand, this Tribunal has reason to believe that the applicant has purposely put his signatures in different style in the vakalath and in the S.A. Therefore this Tribunal disbelieves the version of the applicant that Demand Notice was not served to him and that the signature found in Annexure-B1(a) is not his signature.

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The applicant has not produced any material before this Tribunal to substantiate his claim that secured asset is agricultural

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Page 2 of 4

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SA No.582 of 2023

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property. Hence, the contention raised by the applicant that the secured asset is agricultural property cannot be accepted as correct.

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The applicant has not specifically averred in the S.A as to how the amount claimed in Annexure-A2 is exorbitant and also as what is the actual amount payable by him.

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It is well settled law that the secured creditor can approach the Chief Judicial Magistrate Court or the District Magistrate for taking physical possession of the secured asset without resorting to the measure under Section 13(4) of the SARFAESI Act, 2002 for taking symbolic possession of the secured asset at the first instance. Therefore, this Tribunal does not find any force in the contention of the applicant that right of the secured creditor to take possession flows from Section 13(4) of the SARFAESI Act, 2002 and not from Section 14 of the SARFAESI Act, 2002. Apart from the contention raised supra, the applicant has not averred in the S.A as to whether the defendants failed to furnish the details as mandated under the proviso (i) to (ix) to the provisions under Section 14(1) of the SARFAESI Act, 2002. In any event, a perusal of Annexure-A2 petition and affidavit filed by the defendant in MC No.1007/2022 before the Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam shows that all the details contemplated under proviso (i) to (ix) to the provisions under Section 14(1) of the SARFAESI Act, 2002 are furnished. A perusal of Annexure-A4 order dated 03.03.2023 passed in MC No.1007/2022 by the Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam would show that Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam after having perused the contents of the petition and the affidavit and having satisfied over the same passed the order appointing Advocate Commissioner to take physical possession of the secured asst. This Tribunal does not find any flaw or any infirmity in Annexure-A2 or A4.

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The applicant has miserably failed to prove his case that he is entitled to get reliefs sought for in the S.A.

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In the result, S.A No.582 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 9^th day of May 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 3 of 4

SA No.582 of 2023

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

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Sl. No.	Date	Particulars
1.	09.09.2023	True copy of Advocate Commissioner’s notice.	Annexure-A1
2.	31.10.2022	True copy of petition filed as M.C. No.1007/2022 along with affidavit under Section 14 of the SARFAESI Act, before the Additional Chief Judicial Magistrate Court (for MLA's and MP's) Ernakulam.	Annexure-A2
3.	18.02.2022	True copy of Demand Notice stated to be issued by the defendants under Section 13(2) of the SARFAESI Act, produced as Annexure-A3 in MC No.1007/2022.	Annexure-A3
4.	03.03.2023 List of docum	True copy of order passed by the Additional Chief Judicial Magistrate Court (for MLA's and MP's) Ernakulam in MCNo.1007/2022. ents filed by the defendants along wit statement	Annexure-A4 h the written
Sl. No.	Date	Particulars
1.	18.02.2022	Copy of Demand Notice issued by the defendants to the applicant under Sec.13(2) oftheAct.	Annexure-B1
2.	---	Postal acknowledgment signed by/for applicant.	Annexure-B1(a)
3.	07.05.2022	Copy of Possession Notice issued by the defendants to the applicant under Sec.13(4) oftheAct.	Annexure-B2
4.	---	Postal acknowledgment signed by/for applicant.	Annexure-B2(a)
5.	---	Photograph showing affixture of Possession Notice.	Annexure-B2(b)
6.	12.05.2022	Publication in The Hindu (English) daily.	Annexure-B2(c)
7.	12.05.2022	Publication in Mathrubhoomi (Malayalam) daily.	Annexure-B2(d)

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 4 of 4

Jolly Pp v. State Bank of India

Case brief

What is this about?

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Jolly Pp v. State Bank of India

Case brief

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