Dismissed

Mujeeb Rahman v. K v Manjeri Cooperative Urban Bank Ltd.

DRT17 Sept 2024SA/761/2023

Case brief

AI extract

What is this about?

An interim application was filed to set aside an Advocate Commissioner notice and demand notice issued under the SARFAESI Act, 2002. The applicants, who admitted loan default and NPA classification, failed to prove non-compliance with Section 14 or errors in interest calculation. The tribunal dismissed the application.

What did the court decide?

Application SA No. 761 of 2023 dismissed with no costs awarded to the respondents.

Mujeeb Rahman v K versus Manjeri Cooperative Urban Bank 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 17^th DAY OF SEPTEMBER, 2024

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

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S.A No. 761 of 2023

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Between

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Mujeeb Rahman V.K. S/o. Alavikutty, residing at Ambalappatt House, Kuzhinjolam, Thavanoor PO. Malappuram – 673 638.

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Hafsath, W/o. Mujeeb Rahman, residing at Ambalappatt House, Kuzhinjolam, Thavanoor PO. Malappuram – 673 638.

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--- Applicants

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And

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The Manjeri Co-operative Urban Bank Ltd., Court Road, Manjeri P.O., Malappuram-676121 Represented by its General Manager.

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

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Manjeri P.O., Malappuram-676121.

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--- Defendants

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This Securitization Application coming on 03.07.2024 for final hearing before me in the presence of Ms. Jinsamol M.A, Advocate for

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SA No.761 of 2023

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the Applicants and Mr. K. Vidyasagar., 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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O R D E R

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This Securitisation Application was filed on 13.12.2023 seeking to set aside Annexure-A1 application and A2 Advocate Commissioner notice as those are not in conformity with Section 14 of the SARFAESI Act, 2002 and to declare that Annexure-A1 and A2 are not binding on the applicants and to direct the defendants to regularize the loan account of the applicants and allow the cost of the proceedings to the applicants from the defendants.

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The applicants have admitted the availment of cash credit limit of Rs.35,00,000/- on 27.07.2015 from the 1^st defendant bank upon creation of equitable mortgage over their immovable properties situated in Re.Sy.No.109/25 in Block No.13 in Muthuvallor Village, Malappuram District by deposit of title deeds in favour of the 1^st defendant bank. The applicants have also admitted their default in repayment of the outstanding loan due and consequential classification of their loan account as NPA on 10.05.2016.

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Demand Notice dated 07.09.2018 Annexure – B1 was issued to the applicants calling upon them to pay the outstanding loan due within a period of 60 days from the date of receipt of the notice. Though the applicants have not averred in the SA with regard to the issuance of the Demand Notice, the defendants have produced Annexure – B2 copies of postal receipt to prove their contention that Demand Notice was sent to the applicants. Indisputably, the applicants neither sent any objection/representation to the Demand Notice nor did discharge their liability due to the 1^st defendant bank.

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Therefore possession notice dated 25.02.2019 Annexure – B3 was issued for symbolically taking possession of the secured asset. The defendants have also produced Annexure – B4 copies of postal receipt and postal acknowledgment card to prove the receipt of the possession notice by the applicant. The defendants have also produced Annexure – B5 copy of photograph and Annexures – B6 & B7 copies of paper publications to show that possession notice was affixed on the conspicuous space of the secured asset and that it was

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Page 2 of 11

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SA No.761 of 2023

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published in Malayala Manorama Edition dated 02.03.2019 and Chandrika Edition dated 03.03.2019.

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The defendants have averred in the written statement with regard to issuance of Annexure – B8 sale notice dated 27.09.2021, Annexure – B10 sale notice dated 22.11.2021 and Annexure – B12 sale notice dated 07.12.2021 alongwith copies of postal receipts and acknowledgment cards as Annexures – B9, B11 & B13 to prove the receipt of the above sale notices by the applicants. The applicants have not raised any issue with regard to the issuance of the above said sale notices. Be that it may so, sale was not materialised pursuant to issuance of the aforesaid sale notices.

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The defendants filed Annexure – A1 petition and Annexure – B14 affidavit in CMP No.1723/2019 before the Chief Judicial Magistrate Court, Manjeri under Section 14 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 Annexure – A2 notice dated 02.12.2019 to the applicants informing them that she would take physical possession of the property on 14.12.2023. The applicants having aggrieved over the aforesaid measures have filed the present SA seeking for the reliefs stated supra.

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It is submitted by the counsel appearing for the applicants that the provisions of Section 14(1)(b) was not complied with in respect of filing of the affidavit alongwith the petition Annexure – A1 and that the request of the applicants to provide copy of the statement of account was not considered by the 1^st defendant bank and that the interest calculated is not in the terms of the agreement made between the parties and that repayment of the loan due has not been properly accounted and that the applicants are ready to pay the amount due to the 1^st defendant bank and that breathing time may be granted to repay the overdue amount and that therefore, the SA may be allowed as prayed for.

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It is submitted by the counsel appearing for the defendants that the order of the Hon’ble High Court of Kerala in its judgment Annexure – B15 directing the 1^st applicant to pay Rs.10,00,000/- was not complied with by the 1^st applicant and that affidavit showing all the details as required under Section 14(1) of the SARFAESI Act, 2002 was filed alongwith petition in CMP No.1723/2019 and that the

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Page 3 of 11

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SA No.761 of 2023

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applicants never approached the 1^st defendant bank for issuance of the copy of the account statement and that payments made by the applicants were given credit and that therefore, the SA may be dismissed with costs to these defendants.

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In Annexure – B14 affidavit the details such as availment of credit facility by the applicants on 27.07.2015 upon creation of security interest over the immovable property of the applicants by deposit of title deeds, classification of the loan account as NPA due to default in repayment of the outstanding dues, issuance of Demand Notice to the applicants receipt of the Demand Notice by the applicants, failure of the applicants to send any objection or representation to the Demand Notice and failure to discharge the outstanding loan due and the outstanding amount, due obstruction caused by the applicant against taking physical possession of the secured assets, description of the property, necessity for appointment of Advocate Commissioner are furnished; hence, the contention of the applicants that petition is not supported by the affidavit is absolutely incorrect. The applicants have not produced the copy of the order passed in CMP No.1723/2019 by the Chief Judicial Magistrate Court, Manjeri. It is also not the contention of the applicants that the Chief Judicial Magistrate Court, Manjeri without having perused the contention of the affidavit and the documents produced in the court of the affidavit and having satisfied over the same passed order appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued Annexure – A2 notice pursuant to the direction given to her by Chief Judicial Magistrate Court, Manjeri. Without challenging the order passed in CMP No.1723/2019, challenging Annexure – A2 notice is unsustainable.

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The applicants have not produced any material before this Tribunal to prove their contention that in spite of their request copy of the account statement was not furnished to them. The applicants have also not produced any material to prove their contention that the payments made by the applicants were not credited to their loan account. However, the defendants have contended that the payments made by the applicants were given proper credit to their loan account. The applicants have not specifically averred in the SA as to how the interest calculated by the defendants is not in terms of the agreement entered into between them and the 1^st defendant bank. The applicants

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SA No.761 of 2023

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have failed to prove their case so as to get the reliefs sought for in the SA.

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In view of the foregoing reasons, this Tribunal holds that the applicants are not entitled to get the reliefs sought for in this SA. In the result, SA No.761 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 17^th day of September, 2024.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 5 of 11

SA No.761 of 2023

S C H E D U L E

Property having an extent of 10.3/4 cents of property and residential building in Re-Survey No.109/25 (Old Sy. No.155/4), Block No.13 in Muthuvalloor Amsom, Thavanoor Desom, Muthuvalloor village, Kondotty Taluk, Malappuram District in the name of Mujeeb Rahman, S/o. Vaniyakkoli Alavikkutty and his wife Hafsath Kannirangadan as per Deed No.1680/2009 (as per Rectification Deed No.1140/2015) registered before Vazhakkadu SRO.

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10 cents of property as per Deed No.1398/2011 registered before SRO Kondotty and 10 cents of property in Re. Sy. No.329/5 (Old Sy. No.257/4,5), Block No.13 in Muthuvalloor Amsom, Thavanoor Desom, Kuzhimanna Village, Kondotty Taluk, Malappuram District, in the name of Mujeeb Rahman, S/o. Vaniyakkoli Alavikkutty and his wife Hafsath Kannirangadan.

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Description of property as per Deed No.1680/2009 (as per Rectification Deed No.1140/2015 registered before Vazhakkad SRO.

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Property having an extent of 10.3/4 cents of property and residential building in Re. Sy. No.109/25 (Old Sy. No.155/4), Block No.13 in Muthuvalloor Amsom, Thavanoor Desom, Muthuvalloor village, Kondotty Taluk, Malappuram District in the name of Mujeeb Rahman, S/o. Vaniyakkoli Alavikkutty and his wife Hafsath Kannirangadan as per Deed No.1680/2009 (as per Rectification Deed No.1140/2015) registered before Vazhakkadu SRO.

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Details of property

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Share of 10.3/4 cents of the property comprised in old Re. Sy. No.155/4 in a total extent of 1 Acres 47 cents of property lying in the western portion of property namely Thiyyaroth Puraya Parambu which is measured in kipa., 58 on North, 65 on South, 68 from South-North portion, 59 on East portion, 72 on middle portion, 90 on western portion (19.47 * 23.17 Metres)

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Page 6 of 11

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SA No.761 of 2023

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Boundaries of property as per Deed 1680/2009 (Rectification Deed No.1140/2015) of Vazhakkad SRO.

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East : Property in hands of Hassankutty Haji South : Panchayath Road West : The property kept for 2 Feet Road of Ambalputta Porayi Parambu North : Property in hands of Hassankutty Haji.

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Description of property as per Deed No.1398/2011 (Registered before Kondotty SRO.

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10 cents of property as per Deed No.1398/2011 registered before SRO Kondotty and 10 cents of property in Re. Sy. No.329/5 (Old Sy. No.257/4,5), Block No.13 in Muthuvalloor Amsom, Thavanoor Desom, Kuzhimanna Village, Kondotty Taluk, Malappuram District, in the name of Mujeeb Rahman, S/o. Vaniyakkoli Alavikkutty and his wife Hafsath Kannirangadan.

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Details of property (1^st Tak)

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The North-Western portion of property, which arises by the joining of properties namely West-North portion of Kudiyiruppu Parambu in Cholayil Purayanaradu Thekke Khandom Parambu and property namely Cholayil Thekke Khandom Parambu and its appurtenant, which is measured in Metres, 12 on East, 4 + 5.10 + 66 from North portion to west, 18.8 on North, 7.2 + 16 from East to South.

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Boundaries of property

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East : Property given to Suhra South : Property left for Pathway having 2 Feet width. West : My balance property and Neradu Palliyali North ; Property of Cholayil

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Details of property (2^nd Tak)

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Share of total extent of (10 cents) 0.9480 Hectres of property, 2^nd Tak Pathway is lying near the Southern portion of the property, 10.6 North, 8.6 South, 11.70 East, 14.50 West.

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Page 7 of 11

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SA No.761 of 2023

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Boundaries of property

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East : My balance property South : Anichal West : Property of Cholayil North : Property left for pathway having 2 Feet width.

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(Su. WILLYAHM) PRESIDING OFFICER

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Page 8 of 11

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SA No.761 of 2023

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

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Sl. No.	Date	Particulars
1.	---	True copy of the petition in CMP No.1723/2019 filed before the Chief Judicial Magistrate Court,Manjeri.	Annexure-A1
2.	---	Typed copy and true translation of Annexure-A1.	Annexure-A1a
3.	02.12.2023	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.	07.09.2018	True copy of Demand Notice under Sec.13(2) of SARFAESI Act, issued by the defendants to the applicants along with itsEnglishtranslation.	Annexure-B1
2.	21.11.2018	True copy of the postal receipt in the name of the applicants by which it is seen that Annexure-B1 Demand Notice has been sent by the defendant to the applicants through the registered post and true copy of acknowledgement card by which it seen that the applicants received the Demand Notice along with itsEnglishtranslation.	Annexure-B2
3.	25.02.2019	True copy of Possession Notice under Sec.13(4) of SARFAESI Act, issued by defendant to the applicants along with itsEnglishtranslation.	Annexure-B3
4.	05.03.2019	True copy of the postal receipt in the name of the 1^stapplicant by which it seen that the Possession Notice has been sent by the defendants to the 1^st applicant through registered post and true copy ofacknowledgement card by	Annexure-B4

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SA No.761 of 2023

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		which it seen that the 1^stapplicant received the Possession Notice along with itsEnglishtranslation.
5.	---	True copy of the photo which shows the Possession Notice under Sec.13(4) affixed on the wall near the front door of thehouseinthemortgaged property.	Annexure-B5
6.	02.03.2019	True copy of the newspaper publication of Possession Notice in Malayala Manorama daily along with its English translation.	Annexure-B6
7.	03.03.2019	True copy of the newspaper publication of Possession Notice in Chandrika daily alongwith itsEnglishtranslation.	Annexure-B7
8.	27.09.2021	True copy of sale notice issued by the defendant to the applicants along with itsEnglishtranslation.	Annexure-B8
9.	30.09.2021	True copy of the postal receipt in the name of the applicants by which it seen that Annexure-B8 sale notice has been sent by the defendants to the applicants through registered post and true copy of the acknowledgment card by which it is seen that 2^ndapplicant received Anx.B8 sale notice and true copy of the post cover by which it is seen that sale notice to the 1^stapplicant has been returned as unclaimed notice along with itsEnglishtranslation.	Annexure-B9
10.	22.11.2021	True copy of the sale notice issued by the defendants to the applicants along with itsEnglishtranslation.	Annexure-B10
11.	23.11.2021	True copy of the postal receipt in the name of the applicants by which it seen that Annexure-B10 sale notice has been sent by the defendants to the applicants through registered post and true copy of the acknowledgment card by which it is seen that 2^nd applicant received Anx.B10 sale notice and true copy of the post cover by which it is seen that Anx.B10 salenotice to the1^stapplicant	Annexure-B11

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SA No.761 of 2023

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		has been returned as unclaimed notice alongwith itsEnglishtranslation.
12.	07.12.2021	True copy of the sale notice issued by the defendants to the applicants along with itsEnglishtranslation.	Annexure-B12
13.	08.12.2021	True copy of the postal receipt in the name of the applicants by which it seen that Annexure-B12 sale notice has been sent by the defendants to the applicants through registered post and true copy of the acknowledgment card by which it is seen that 2^nd applicant received Anx.B12 sale notice and true copy of the post cover by which it is seen that Anx.B12 sale notice to the 1^stapplicant has been returned as unclaimed notice alongwith itsEnglishtranslation.	Annexure-B13
14.	---	True copy of the affidavit filed by the defendants along with petition CMP No.1723/2019 before the Chief Judicial Magistrate Court,Manjeri.	Annexure-B14
15.	06.12.2023	True copy of the judgment in WP(C) No.34494/2023 on the file of the Hon'bleHighCourt of Kerala.	Annexure-B15

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Mujeeb Rahman v. K v Manjeri Cooperative Urban Bank Ltd.

Case brief

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Mujeeb Rahman v. K v Manjeri Cooperative Urban Bank Ltd.

Case brief

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What did the court decide?

What the court decided

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