Dismissed

Rahma Ummar v. State Bank of India

DRT9 Oct 2024SA/735/2023

Case brief

AI extract

What is this about?

This secured asset application by an adjacent property owner against a bank and borrowers was dismissed. The court found the applicant lacked locus standi as she was a third party to the loan. Evidence proved the secured asset and applicant's property were distinct. The application was characterize as collusive and liable to dismissal with costs.

What did the court decide?

SA No.735 of 2023 dismissed with exemplary cost of Rs.25,000/- to the Defendants 1 & 2.

Rahma Ummar 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 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. 735 of 2023

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Between

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Rahma Ummar, D/o. Ummar Haji, Residing at Thazhatheel House, Ozhukkooru P.O., Morayoor, Kondotty, Malappuram673 642.

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--- Applicant

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And

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The State Bank of India, Mongam Branch, Malappuram – 673 642, Represented by Branch Manager.

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The Authorized Officer ARM Branch, 1^st Floor, R.S. Building, M.G. Road, Ernakulam, Kochi-11.

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Majid Ummer, S/o. Ummer Haji, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642.

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Maimoona, W/o. Ummer, Residing at Karattu Chali House, Ozhukkoor P.O., Morayoor, Malappuram -673 642.

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--- Defendants

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SA No.735 of 2023

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This Securitization Application coming on 11.09.2024 for final hearing before me in the presence of Ms. M.A. Jinsamol, Advocate appearing for the Applicant and Mrs. Thankom Mukundakrishnan, Advocate appearing for the defendants 1 and 2 and defendants 3 & 4 having been set exparte and upon hearing arguments of learned Counsels for the applicant and Defendants 1 and 2 and upon perusing the material on records, this Tribunal delivered the following:

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O R D E R

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This Securitisation Application was filed on 04.01.2023 seeking to pass an order directing the 1^st and 2^nd defendants to identify the secured asset and to fix the boundary of applicant’s property and adjacent property of 3^rd and 4^th defendants and to set aside Annexures – A3 and A6 notices and to declare that Annexure-A6 proceedings is not binding on the applicants’ property including the residential building in it and to allow the cost of the proceedings from the defendants 1 and 2.

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The applicant is a third party to the proceedings initiated by the defendants 1 & 2 under the SARFAESI Act, 2002 and the Rules thereunder against the defendants 3 & 4. According to the applicant she is the owner of the property having an extent of 1.82 Ares in Re. Sy. No.78/3 and 6.44 Ares in Re Sy. 78/3/2 of which situated in Morayoor Village, Kondotty Taluk, Malappuram District. When the Advocate Commissioner inspected her property and served copy of the notice Annexure – A4 dated 04.01.2023, she understood that the Chief Judicial Magistrate Court, Manjeri has appointed the Advocate Commissioner for taking physical possession of the property mortgaged by the defendants 3 & 4 due to default in repayment of the outstanding loan due and that the defendants 1 and 2 made measurement of the property which is lying without boundaries and included her property also.

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It is submitted by the counsel for the applicant that she is not a party to Annexures – 4 notice issued by the Advocate Commissioner and that she had not availed any loan from defendants 1 & 2 by mortgaging his property described in Annexure – A1 deed and that the Advocate Commissioner with the help of a Surveyor encroached the property of the applicant while measuring the mortgaged property and that the property mortgaged by the defendants 3 and 4 and the property of the applicant are adjacent properties lying without any boundaries and that Annexure-A3 application and Annexure-A4 notice are illegal and that defendants 1 and 2 may be directed to fix the boundary of the applicant’s property and the adjacent property of the defendants 3 and 4 before taking physical possession of the

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Page 2 of 7

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SA No.735 of 2023

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mortgaged property and that therefore the SA may be allowed as prayed for.

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Per contra, the counsel appearing for the defendants 1 & 2 submitted that the applicant has no locus standi to challenge the proceedings imitated by the defendants 1 & 2 against the secured asset for recovery of the dues from the defendants 3 & 4 and that the applicant is the sister of 3^rd defendant and that the grand children of the 4^th defendant have filed S.A. No.6/2023 in collusion with the defendants 3 & 4 on the same lines to stall the SARFAESI measures initiated by the defendants 1 & 2 and that the above SA is pending before this Tribunal and that the secured asset belonging to the 4^th defendant is covered by the Deed No.4430/2006 of SRO Kondotty measuring 4.45 Ares of land with residential building in Re. Sy. No.78/3 in Murayoor Village, Malappuram District.

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It is further submitted by the counsel for the defendants 1 & 2 that they are proceeding against the secured asset only and that the 4^th defendant transferred the property owned by him to his grandchildren immediately after availment of the loan and that the property of the applicant is lying adjacent to the secured asset and that hence the contention of the applicant that she is the absolute owner of the residential building is absolutely baseless and that the secured asset is in possession of the 4^th defendant and that the Advocate Commissioner never informed the applicant that he would take possession of his property and that he never served any notice to the applicant.

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It is further submitted by the counsel for the defendants 1 & 2 that the Advocate Commissioner with the assistance of the Taluk Surveyor identified, measured and demarcated the secured asset as per direction of this Tribunal and that the Advocate Commissioner filed an Annexure-B4 interim report before the Chief Judicial Magistrate Court, Manjeri and that the secured asset has been properly identified and demarcated and that the secured asset is not covered by the property of the applicants including half portion of the residential building as contended by the defendants and that the applicant who is the third party has no locus standi to challenge Annexure – B5 Order passed in Crl.M.P No. 22464/2022 and that the SA which is not maintainable is liable to be dismissed with compensatory costs to the defendants 1 & 2.

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The contention of the defendants 1 & 2 with regard to the relationship of the applicant with the defendants 3 & 4 is not refuted or denied by the applicant. When the applicant claims that half portion of her building is situated in the property of the defendants 3 and 4, it is for her to produce relevant material before this Tribunal to prove her above claim therefore, the prayer sought for by the applicant

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Page 3 of 7

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SA No.735 of 2023

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to direct the defendants 1 & 2 to identify the secured assets and to fix the boundary of the applicant’s property and the adjacent property of defendants 3 & 4 is unsustainable. However, the defendants 3 & 4 sought the direction of this Tribunal to direct the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Manjeri to identify, measure and demarcate the secured asset with the assistance of the Taluk Surveyor. Accordingly, the Advocate Commissioner visited the secured asset after having served notice to both the parties and the property of the applicants and identified, measured and demarcated the secured asset with the assistance of the Taluk Surveyor and filed his interim report with location sketch which is produced as Annexure – B5 alongwith the written statement of defendants 1 & 2.

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It is seen from perusal of Annexure – B4 interim report that the Advocate Commissioner perused the title deed No.4430/2006 of SRO Kondotty belonging to the 4^th defendant and ascertained the extent of his property with the help of the Taluk Surveyor. In Annexure – B4 interim report the Advocate Commissioner has clearly mentioned as follows :

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“A-B-C-D-A in the plan is the schedule property in Crl.M.P No.2246/2022 and as per Title Deed No.4430/2006 of SRO Kondotty. The parts (The building in the schedule property is a two storied House) of the house in the schedule property is marked with red colour cross lines. The parts of the house is not included in the schedule property and situated in the remaining property is marked with light green cross lines.”

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In the location sketch, the part of the house which is not included in the scheduled property which is the secured asset is shown lying outside the marked portion of A-B-C-D. Therefore, it is clearly established that the secured asset and the property of the applicant have been separately identified. Therefore the contention of the applicant that her property has been included in the secured asset for taking physical possession is absolutely incorrect and baseless.

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This Tribunal finds considerable force in the submission of the counsel for the defendants 1 & 2 that this SA has been filed in collusion with defendants 3 & 4 so as to stall the measures initiated by the defendants 1 & 2 for taking physical possession of the secured asset.

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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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Page 4 of 7

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SA No.735 of 2023

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In the result, S.A No.735 of 2023 stands dismissed with exemplary cost of Rs.25,000/- to the defendants 1 & 2.

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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 October, 2024.

(Su. WILLYAHM)

PRESIDING OFFICER

Mj/

Page 5 of 7

SA No.735 of 2023

Application Schedule

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The property and residential building having an extent of 1.82 Ares in Re. Sy. No.78/3 and 6.44 Ares in Re. Sy. No.78/3/2, in Block No.57 of Morayoor Village, Kondotty Taluk, Malappuram District which was registered as per Sale Deed No.5035/2022 before Kondotty SRO and shown as item Nos.2 and 3 in the sale deed.

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Boundaries as per the Sale Deed

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South : Property in the hand of Maimoona North : Panchayath Road. East : Property in the hand of K.C. Usman. West : Panchayat Road

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 6 of 7

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SA No.735 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.	15.10.2022	True copy of the Sale Deed No.5035/2022 of Kondotty SRO.	Annexure-A1
2.	---	True copy of the English translation of Annexure-A1.	Annexure-A1(a)
3.	03.04.2023	True copy of the receipt for the payment of tax to the property paid by theapplicant.	Annexure-A2
4.	---	True copy of the English translation of Annexure-A2.	Annexure-A2(a)
5.	---	True copy of Crl.M.P No.No.2246/2022 filed before Chief Judicial Magistrate CourtManjeri.	Annexure-A3
6.	04.01.2023	True copy of the notice given by the Advocate Commissioner in Crl.M.P	Annexure-A4
		No. No.2246/2022 before Chief Judicial Magistrate CourtManjeri.

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List of documents filed by the defendants 1 & 2 along with the written statement

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Sl. No.	Date	Particulars
1.	12.03.2019	True copy of the possession certificate	Annexure-B1
2.	03.04.2019	True copy of the tax receipt with Englishtranslation.	Annexure-B2
3.	---	True copy of building tax receipt.	Annexure-B3
4.	28.10.2023	True copy of the report of the Advocate Commissioner in Crl. MP No.2246/2022 of the Chief Judicial Magistrate CourtManjeri.	Annexure-B4
5.	27.07.2022	True copy of the order of the Chief Judicial Magistrate Court Manjeri in Crl.MP No.2246/2022.	Annexure-B5

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 7 of 7

Rahma Ummar v. State Bank of India

Case brief

What is this about?

What did the court decide?

Rahma Ummar v. State Bank of India

Case brief

What is this about?

What did the court decide?

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