Dismissed

Abdul Kareem Haji Keyath v. Manjeri Cooperative Urban Bank Ltd.

DRT17 Sept 2024SA/762/2023

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed an application seeking to set aside a possession notice and Advocate Commissioner notice under the SARFAESI Act. The court held that the applicant failed to prove non-compliance with statutory requirements or account discrepancies, and thus was not entitled to the sought reliefs.

What did the court decide?

Application to set aside possession notice and Advocate Commissioner notice dismissed; no costs awarded.

Abdul Kareem Haji Keyath versus Manjeri Cooperative Urban Bank… — Property and Title | 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. 762 of 2023

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Between

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Abdul Kareem Haji Keyath, S/o. Hydru Haji, Keyath House, Velloor P.O., Pookkottur, Malappuram – 676 517.

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--- Applicant

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And

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The Manjeri Co-operative Urban

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Bank Ltd., Court Road,

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Manjeri P.O., Malappuram-676121

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Represented by its

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General Manager.

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The Authorized Officer,

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Manjeri Co-operative Urban

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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 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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SA No.762 of 2023

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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 Possession Notice, Annexure-A2 application filed in MC No.738/2023 on the file of Chief Judicial Magistrate Court, Manjeri and the notice dated 24.11.2023 issued by the Advocate Commissioner notice Annexure – A3 and to direct the defendants to regularize the loan account of the applicant and allow the cost of the proceedings to the applicant from the defendants.

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The applicant has admitted the availment of credit facility to the tune of Rs.20,00,000/- from the 1^st defendant bank upon creation of equitable mortgage over his immovable property situated in Re.Sy.No.94/10 in Block No.54 in Pookottur Amsom, Ernad Taluk, Malappuram District by deposit of title deeds in favour of the 1^st defendant bank. The applicant has also admitted his default in repayment of the outstanding loan due and consequential classification of his loan account as NPA on 29.07.2016.

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Demand Notice dated 28.03.2019 Annexure – B1 was issued to the applicant calling upon him to pay the outstanding loan due within a period of 60 days from the date of receipt of the notice. Though the applicant has 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 applicant. Indisputably, the applicant neither sent any objection/representation to the Demand Notice nor did he discharge his liability due to the 1^st defendant bank.

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Therefore possession notice dated 09.09.2021 Annexure – A1 was issued for symbolically taking possession of the secured asset. The copy of the possession notice alongwith English translated version of the notice is produced as Annexure – B4 by the defendants. The applicant has admitted the receipt of the possession notice. The defendants have also produced Annexure – B3 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 – B4 copy of photograph and Annexures – B5 & B6 copies of paper publications to show that possession notice was affixed on the conspicuous space of the secured asset and that it was published in Malayala Manorama Edition dated 15.09.2021 and Chandrika Edition dated 15.09.2021.

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Page 2 of 9

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SA No.762 of 2023

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The defendants have averred in the written statement with regard to issuance of Annexure – B7 sale notice dated 24.11.2021, Annexure – B9 sale notice dated 01.01.2022 and Annexure – B11 sale notice dated 01.02.2022 alongwith copies of postal receipts and acknowledgment cards as Annexures – B8, B10 & B12 to prove the receipt of the above sale notices by the applicant. The applicant has 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 – A2 petition and Annexure – B14 affidavit in MC No.738/2023 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 – A3 notice dated 24.11.2023 to the applicant informing him that he would take physical possession of the property on 13.12.2023. The applicant 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 applicant that residential building situated in the property was never mortgaged with the 1^st defendant bank and that the provisions of Section 14(1)(b) was not complied with in respect of filing of the affidavit alongwith the petition Annexure – A2 and that the request of the applicant 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 applicant is 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 – B13 directing the applicant to pay the entire outstanding loan amount in 09 equated monthly installments was not complied with by the applicant and that affidavit showing all the details as required under Section 14(1) of the SARFAESI Act, 2002 was filed alongwith petition in MC No.738/2023 and that the writ petition WP(C) No.38889/2023 filed by the applicant challenging the issuance of Annexure – A3 Advocate Commissioner notice was dismissed by the Hon’ble High Court of Kerala due to non-compliance of its earlier direction and that the applicant never approached the 1^st defendant

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Page 3 of 9

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SA No.762 of 2023

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bank for issuance of the copy of the account statement and that payments made by the applicant 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 applicant on 31.03.2016 upon creation of security interest over the immovable property of the applicant 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 applicant, receipt of the Demand Notice by the applicant, failure of the applicant to send any objection or representation to the Demand Notice and failure to discharge the outstanding loan due and the outstanding due as on 24.08.2023 (on the date of filing of the petition and the affidavit) obstruction caused by the applicant for taking physical possession of the secured asset, necessity for appointment of Advocate Commissioner are furnished; hence, the contention of the applicant that petition is not supported by the affidavit is absolutely incorrect. The applicant has not produced the copy of the order passed in MC No. 738/2023 by the Chief Judicial Magistrate Court, Manjeri. It is also not the contention of the applicant 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 – A3 notice pursuant to the direction given to him by Chief Judicial Magistrate Court, Manjeri. Without challenging the order passed in MC No. 738/2023, challenging Annexure – A3 notice is unsustainable.

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The applicant has categorically admitted in Para 2 of the SA that he mortgaged his property having an extent of 78 Cents and residential building in Re.Sy.No.94/10 in Block No.54 in Pookottur Amsom, Ernad Taluk, Malappuram District. Therefore, the contention of applicant that he has not mortgaged his residential building is absolutely false.

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The applicant has not produced any material before this Tribunal to prove his contention that in spite of his request, copy of the account statement was not furnished to him. The applicant has also not produced any material to prove his contention that the payments made by him were not credited to his loan account. However, the defendants have contended that the payments made by the applicant were given proper credit to his loan account. The applicant has not specifically averred in the SA as to how the interest calculated by the defendants is not in terms of the agreement entered

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Page 4 of 9

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SA No.762 of 2023

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into between him and the 1^st defendant bank. The applicant has failed to prove his 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 applicant is not entitled to get the reliefs sought for in this SA. In the result, S.A No.762 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 9

SA No.762 of 2023

S C H E D U L E

The Property having an extent of 78 cents of property and residential building in Re. Sy. No.94/10 (Old Sy. No.68/4, 5) in Block No.54 in Pookkottur Amsom, Vellur Desom, Pookkoottur Village, Eranad Taluk, Malappuram District which was registered as Deed No.1865/1999 of Mongam SRO.

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Description of property

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78 cents of property and residential building in Re. Sy. No.94/10 (Old Sy. No.68/4, 5) in Block No.54 in Pookkottur Amsom, Vellur Desom, Pookkoottur Village, Eranad Taluk, Malappuram District which was registered as Deed No.1865/1999 of Mongam SRO, in the possession and ownership of Abdul kareem, S/o. Hydru Haji, Pookkottur Amsom, Vellur Desom.

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Details of property

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Share of 78 cents of property comprised in old Re. Sy. No.68/4, 5 having total extent of 54 c 68 c of property share in Kudiyiruppu Parambu lying from the half of the north-western portion of Kongassery Kudiyiruppu which is 6 feet 36 * 26.

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Boundaries of property as per Deed 1865/1999 (of Mongam SRO)

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East : Kongasserry Thodika parambu South : Thodu West : Azhuvalappu North : Kongasserry parambu. (Su. WILLYAHM) PRESIDING OFFICER

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Page 6 of 9

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SA No.762 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.	09.09.2021	True copy of the Possession Notice issued by the defendants.	Annexure-A1
2.	---	True copy of translation of Annexure- A1.	Annexure-A1a
3.	----	True copy of petition in MC No.738/2023 filed before the Chief Judicial Magistrate Court,Manjeri.	Annexure-A2
4.	---	Typed copy and readable translation of Annexure-A2,MCNo.738/2023.	Annexure-A2a
5.	24.11.2023	True copy of the Advocate Commissioner notice issued by the defendants.	Annexure-A3

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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 Demand Notice under Sec.13(2) of SARFAESI Act, issued by the defendants to the applicant along with 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 defendant to the applicants throughtheregistered post.	Annexure-B2
3.	13.09.2021	True copy of the postal receipt in the name of the applicants by which it is seen that Possession Notice has been sent by the defendant to the applicant through the registered post and true copy of acknowledgement card by which it seen that the applicant received the Possession Notice along with its English translation.	Annexure-B3
4.	09.09.2021	True copy of the photograph showing theaffixture ofthePossession Notice on	Annexure-B4

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Page 7 of 9

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SA No.762 of 2023

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		the conspicuous space of the secured asset.
5.	15.09.2021	True copy of newspaper publication of possession notice under Section 13(4) in Malayala Manorama Daily alongwith Englishtranslation	Annexure-B5
6.	15.09.2021	True copy of newspaper publication of possession notice under Section 13(4) in Chandrika Daily alongwith English Translation	Annexure-B6
7.	24.11.2021	True copy of sale notice issued by the defendant to the applicant alongwith its Englishtranslation	Annexure-B7
8.	25.11.2021	True copy of the postal receipt in the name of the applicant by which it seen that Annexure-B7 sale notice has been sent by the defendant to the applicant through registered post and true copy of the acknowledgment card by which it is seen that one Asmabi who is the wife of the applicant received Annexure-B7 sale notice along with its English translation.	Annexure-B8
9.	01.01.2022	True copy of 2^ndsale notice issued by the defendant to the applicant along with itsEnglishtranslation.	Annexure-B9
10.	01.01.2022	True copy of the postal receipt in the name of the applicant by which it seen that Annexure-B9 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 the said notice has been received by the son of the applicant namelyMohammedIrfan.	Annexure-B10
11	01.02.2022	True copy of the 3^rdsale notice issued by the defendants to the applicant alongwith itsEnglishtranslation.	Annexure-B11
12	03.02.2022	True copy of the postal receipt in the name of the applicant by which it seen that Annexure-B11 sale notice has been sent by the defendants to the applicant through registered post and true copy of	Annexure-B12

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Page 8 of 9

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SA No.762 of 2023

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		the acknowledgment card by which it is seen that the applicant received Annexure-B11salenotice.
13	17.03.2022	True copy of the judgment in WP (C) No.2467/2022 on the file of the Hon'ble HighCourt of Kerala.	Annexure-B13
14	----	True copy of the affidavit filed by the defendants along with Annexure-A2 petition before the Chief Judicial Magistrate Court,Manjeri.	Annexure-B14
15	22.11.2023	True copy of the judgment in WP(C) No.38889/2023 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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Abdul Kareem Haji Keyath v. Manjeri Cooperative Urban Bank Ltd.

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Abdul Kareem Haji Keyath v. Manjeri Cooperative Urban Bank Ltd.

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