Dismissed

Moideen Kalathingathodi v. Manjeri Cooperative Urban Bank Ltd.

DRT1 Nov 2024SA/710/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal, Ernakulam, dismissed an application seeking to set aside notices for possession and sale under the SARFAESI Act. The court rejected claims of procedural non-compliance and denied a direction to regularize the loan account, stating the DRT lacks such power under the Act.

What did the court decide?

Application dismissed with no costs; notices for possession and sale upheld; direction to regularize loan account denied.

Moideen Kalathingathodi versus Manjeri Cooperative Urban Bank… — Company and Corporate | 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 1^st 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. 710 of 2023

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Between

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Moideen Kalathingathodi, S/o. Ahammed, Kalathingathodi House, Pullara, Kotteparamba Road, Valluvambram P.O., Malappuram – 673 642.

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--- Applicant

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And

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The Manjeri Co-operative Urban Bank Ltd., Court Road, Manjeri P.O., Malappuram-676 121, Represented by its General Manager/ Authorized Officer.

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Authorized Officer, Manjeri Co-operative Urban Bank Ltd., Court Road,

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Manjeri P.O., Malappuram-676 121.

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--- Defendants

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This Securitization Application coming on 08.10.2024 for final hearing before me in the presence of Ms. Jinsamol M.A., Counsel appearing for the Applicant and Mr. K. Vidyasagar, 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.710 of 2023

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O R D E R

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This Securitisation Application was filed on 23.11.2023 seeking to set aside Annexure-A1 and A2 and to direct defendants to regularize the loan account of the applicant and to allow the cost of the proceedings from the defendants.

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The availment of cash credit loan of Rs.25,00,000/- on 19.02.2015 from the defendant bank upon creation of security interst over the applicant’s immovable property measuring an extent of 17 ½ cents of property situated in Re. Sy. No.357/2 of Pookkoottoor village, Eranad Taluk, Malappuram District by deposit of title deeds in favour of the defendant bank and default in repayment of the outstanding loan due is admitted by the applicant in the SA.

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In view of default in repayment of the outstanding loan due, the account of the applicants came to be classified as Non-performing Asset on 02.04.2016 and demand notice dated 30.03.2019 AnnexureB1 was issued to the applicant calling upon him to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. Annexure-B2 copy of postal receipt and copy of postal acknowledgment card evidences the receipt of the demand notice by the applicant. The applicant neither sent any objection/representation to the demand notice nor did he clear off his 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 18.11.2019 Annexure-B3 was issued for taking physical possession of the secured asset. Annexure-B4 copy of postal receipt and copy of postal acknowledgment card evidences the receipt of the Possession Notice by the applicant. The defendants have produced copy of photograph, Annexure-B5, Annexures-B6 and B7 copies of paper publications in order to show that Possession Notice was affixed on the conspicuous part of the secured asset and it was published in two leading newspapers one in Malayala Manorama edition dated 21.11.2019 and another in Chandrika edition 21.11.2019.

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Subsequently, the defendants approached the Chief Judicial Magistrate Court Manjeri and filed Annexure-A1 petition and affidavit under Section 14 (1) of the SARFAESI Act, 2002. Order came to be passed appointing Advocate Commissioner for taking physical possession of the secured asset. The Advocate Commissioner issued notice dated 13.11.2023 Annexure-A2 to the applicant informing him that he would take physical possession of the secured asset on 28.11.2023.

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Page 2 of 7

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SA No.710 of 2023

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In the meanwhile defendant issued sale notice dated 17.03.2021 sale notice Annexure-B8 in order to bring the secured asset for sale. The applicant approached the Hon'ble High Court of Kerala and filed writ petition, W.P. (C) No.5185/2022 challenging the above sale notice. Annexure-B9 judgment came to be passed directing the applicant to pay the outstanding amount in 15 equal monthly installments. The above direction was not complied with by the applicant. He filed another W.P. (C) No.30450/2023, Annexure-B10 seeking to direct the defendants to regularise his loan account. Subsequently, the applicant filed another W.P. (C) No.34432/2023 challenging the notice dated 24.08.2023 issued by the Advocate Commissioner. Annexure-B11 judgment was passed dismissing the above writ petition.

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The reliefs sought for by the applicant in the SA is to set aside Annexure-A1 and A2 and to direct defendants to regularize the loan account of the applicant and to allow the cost of the proceedings from the defendants. The applicant has produced only the copy of the petition filed in CMP No.417/2023 before the Chief Judicial Magistrate Court Manjeri and he has not produced copy of the affidavit filed in CMP No.417/2023, which is the essential document to ascertain as to whether the statutory requirements contemplated in Clause (i) to (ix) to the provisos of Section 14 (1) of the SARFAESI Act, 2002 was complied with by the defendants. It is also not the contention of the applicant in the SA as to whether the aforesaid statutory requirement were not complied with in respect of filing of the affidavit in CMP No.417/2023. The only contention raised by the applicant in the SA is that the aggregate amount of financial assistance granted and the total claim of the bank as on the date of filing the application Annexure-A1 is not mentioned. In Annexure-A1 petition, the total financial assistance granted to the applicant and the total outstanding amount as on the date of filing of the petition, ie., 30.12.2020 is clearly mentioned. Therefore, the above contention of the applicant is absolutely incorrect.

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In the schedule-A to the demand notice Annexure-B1, the secured asset is described as 17 ½ cents of property including the house situated in Re. Sy. No.357/2 of Pookkoottoor village, Eranad Taluk, Malappuram District. Hence the contention of the applicant that the residential building in Annexure-A1 was never mortgaged with the 1^st defendant bank and that hence the house is not liable to be attached as per Section 31 (g) of the SARFAESI Act, 2002 is absolutely incorrect.

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Page 3 of 7

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SA No.710 of 2023

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The applicant has not placed any material before this Tribunal to prove his contention that he several times approached the 1^st defendant bank to get a copy of the statement of account and that it was not furnished to him. The applicant has also not produced any material before this to prove his contention that the rate of interest calculated by the defendant is not in terms of the agreement.

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One of the reliefs sought for by the applicant in the SA is to direct the 1^st defendant bank to regularize his loan account. The applicant filed W.P. (C) No.30450/2023, Annexure-B10 seeking to direct the defendants to regularise his loan account. The above writ petition was dismissed due to non-compliance of the direction made in Annexure-B9 judgment. Hence seeking the same relief in this SA is untenable. Further, DRT is not empowered to direct the secured creditor to regularize the loan account of the borrower.

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

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Resultantly, S.A No.710 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 1^st day of November, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 4 of 7

SA No.710 of 2023

SCHEDULE

The property having an extent 17 ½ cents of property and a residential building therein in Re.Sy.No.357/2 (old Sy. No.257/4) of Pookkoottoor village, Eranad Taluk, Valluvambram Amsom, Pullanoor Desom, Malappuram District as per Sale Deed No.856/2006 of SRO Mongam.

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Description of property (No.1 property as per Deed 856/2006 registered before SRO Mongam)

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Two and half cents (2 ½ ) of property lying in the North-East end

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Portion of Mankutty Nilam in old Re.Sy.No.257/4.

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Boundaries of No.1 property as per Deed 856/2006 registered

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before SRO Mongam)

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South : Balance property North : Property in the possession of Parayangadan Hamsa East : Property in the possession of Parayangadan Hamsa West : Balance property.

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Description of property (No.2 property as per Deed 856/2006 registered before SRO Mongam)

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15 cents of property in the middle portion share in Mankutty Aruppokku paddy.

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Boundaries of No.2 property as per Deed 856/2006 registered

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before SRO Mongam)

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South : Property of Kollaparamban Ali and Illikkathody Abdulla North : Property in the hands of 2^nd person. East : Property sold by Khadeeja and Maimoona West : Balance property.

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 5 of 7

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SA No.710 of 2023

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

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Sl. No.	Date	Particulars
1.	30.12.2020	True copy of the petition in CMP No. 417/2023 filed before the Chief Judicial Magistrate CourtManjeri.	Annexure-A1
2.	---	True typed copy of translation of Annexure-A1.	Annexure-A1(a)
3.	13.11.2023	True copy of the Advocate Commissioner notice.	Annexure-A2

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

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Sl.	Date	Particulars
No.
1.	28.03.2019	True copy of the Demand Notice issued by the defendants to the applicant alongwith itsEnglishtranslation.	Annexure-B1
2.	30.03.2019	True copy of the postal receipt in the name of the applicant by which it is seen that Annexure-B1 Demand Notice has been sent by the defendants to the applicant through registered post and true copy of acknowledgement card by which it is seen that the applicant received the Demand Notice along with itsEnglishtranslation.	Annexure-B2
3.	18.11.2019	True copy of the possession notice issued by the defendants to the applicant along with its English translation.	Annexure-B3
4.	21.11.2019	True copy of the postal receipt in the name of the applicant by which it is seen that the possession notice has been sent by the defendants to the applicant through registered post and true copy of acknowledgement card by which it is seen that possession notice has been received.	Annexure-B4

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Page 6 of 7

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SA No.710 of 2023

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5.	---	True copy of the photo which shows the possession notice affixed on the wall near the front door of the house in the mortgaged property.	Annexure-B5
6.	21.11.2019	True copy of the newspaper publication of possession notice in Malayala Manorama daily along with its English translation.	Annexure-B6
7.	21.11.2019	True copy of the newspaper publication of possession notice in Chandrika daily alongwith itsEnglishtranslation.	Annexure-B7
8.	17.03.2021	True copy of the sale notice issued by the defendants to the applicant along with Englishtranslation.	Annexure-B8
9.	26.05.2022	True copy of the judgment in WP(C) No.5185/2022 on the file of Hon’ble HighCourt of Kerala.	Annexure-B9
10.	---	True copy of the writ petition WP(C) No.30450/2023 filed by the applicant before the Hon’ble High Court of Kerala along with English translation of the document marked as Ext.P1 in the writ petition.	Annexure-B10
11.	08.11.2023	True copy of the judgment in WP(C) No.34432/2023 of the Hon’ble High Court of Kerala.	Annexure-B11

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 7 of 7

Moideen Kalathingathodi v. Manjeri Cooperative Urban Bank Ltd.

Case brief

What is this about?

What did the court decide?

Moideen Kalathingathodi v. Manjeri Cooperative Urban Bank Ltd.

Case brief

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