DT-1, Ernakulam dismissed an application challenging the bank's enforcement actions under SARFAESI. The court held that the bank complied with statutory requisites and the applicant waived defenses by failing to challenge the possession notice within the stipulated timeframe.
The Securitization Application stands dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Fair Order
IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM
DATED THIS 3rd DAY OF DECEMBER, 2024
PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER
S.A No.86 of 2024
Between
Binoy V. Antony, S/o. V.J. Antony, LRA 21, Vilangadan House, LPS Road, Ponnurunni, Vyttila Post, Cochin-682 019.
--- Applicant
And
ICICI Bank Ltd., Rep. by the Authorized Officer, ICICI Bank, Zonal Office, Pushpamangalam Estates, Near NH Bypass, Edapally, Ernakulam -682 024.
--- Defendant
This Securitization Application coming on 06.11.2024 for final hearing before me in the presence of Ms. Alisha Aslam, Counsel appearing for the Applicant and Mr. Akash George, Counsel appearing for the defendant and upon hearing arguments of learned Counsels for both the parties and upon perusing the material on records, this Tribunal delivered the following:
O R D E R
SA No.86 of 2024
Page 2 of 6
SA No.86 of 2024
Act, 2002 and that he passed order without satisfying over the contents of the affidavit and that penal interest has been levied during the moratorium period and that since the mortgaged property is the place of residence, the applicant would suffer great hardship, if he is dispossessed and that therefore SA may be allowed as prayed for.
Page 3 of 6
SA No.86 of 2024
Annexure-A6 order shows that the learned Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam after having satisfied himself perused with regard to compliance of the statutory requirements by the defendant in respect of filing of the affidavit and having perused and satisfied over the same, passed order appointing Advocate Commissioner to take physical possession of the secured asset. The Advocate Commissioner issued Annexure-A 2 notice to the applicant and his wife pursuant to the direction given to him by the Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam to take physical possession of the secured asset. Therefore, the contention of the applicant that the Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam failed to note the non-compliance of the statutory requirements in respect of filing of the affidavit does not hold good.
Resultantly, S.A No.86 of 2024 stands dismissed. There shall be no order as to costs.
Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 3rd day of December, 2024.
(Su. WILLYAHM) PRESIDING OFFICER
Mj/
Page 4 of 6
SA No.86 of 2024
S C H E D U L E
Description of the immovable property
All that part and parcel of property having an extent of 3.06 Ares with building in Sy. No. 304/1-2 in Poonithura Village, Kanayannur Taluk, Ernakulam owned by Binoy V. Antony, the Applicant herein.
(Su. WILLYAHM) PRESIDING OFFICER
Page 5 of 6
SA No.86 of 2024
List of documents filed by the Applicant along with the S.A.
| Sl. No. |
Date | Particulars | |
|---|---|---|---|
| 1. | 28.10.2021 | True copy of the Possession Notice issued by the defendant bank. |
Annexure-A1 |
| 2. | 13.01.2024 | True copy of Advocate Commissioner notice. |
Annexure-A2 |
| 3. | --- | True copy of postal envelope and postal track record of Annexure-A2notice. |
Annexure-A3 |
| 4. | 09.01.2023 | True copy of the petition filed by the defendant bankbefore the CJMCourt. |
Annexure-A4 |
| 5. | 10.01.2023 | True copy of the affidavit filed by the defendant bankbefore the CJMCourt. |
Annexure-A5 |
| 6. | 02.12.2023 | True copy of the order of Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam in MC No. 104/2023. |
Annexure-A6 |
List of documents filed by the defendant along with the written
statement
| Sl. No. |
Date | Particulars | |
|---|---|---|---|
| 1. | 17.08.2024 | True copy of the loan account statement of loan A/c. No.LBCOC00003446297. |
Annexure-D1 |
| 2. | 17.08.2024 | True copy of the loan account statement of loan A/c. No.LBCOC00004034299. |
Annexure-D2 |
| 3. | 02.08.2021 | True copy of the Demand Notice under Sec.13(2) ofSARFAESI Act |
Annexure-D3 |
| 4. | 07.08.2021 | True cop of the postal receipt evidencing dispatch of the Demand Notice. |
Annexure-D4 |
| 5. | --- | True copy of the document evidencing proofofdelivery of DemandNotice |
Annexure-D5 |
| 6. | 02.11.2021 | True copy of symbolic Possession Notice published in The New Indian Express dailyKochiedition. |
Annexure-D6 |
| 7. | 02.11.2021 | True copy of the symbolic Possession Notice published in vernacular languagein MetroVartha. |
Annexure- D6(a) |
| 8. | --- | True copy of the CERSAI registration details. |
Annexure-D7 |
(Su. WILLYAHM) PRESIDING OFFICER
Page 6 of 6
3 issues framed by the court
Whether mandatory requirements under Section 13(2) and Section 14 of the SARFAESI Act were complied with in issuance of demand and possession notices and appointment of an Advocate Commissioner?
Whether the applicant's failure to challenge the possession notice within the statutory period precludes raising the plea of non-compliance in subsequent proceedings?
Whether the affidavit filed under Section 14 sufficiently disclosed compliance with statutory requirements to justify the order?
2 provisions across 1 enactments
Binoy V. Antony
Su. WILLYAHM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
