Allowed

Ande Hari Krishna v. Icici Home Finance

DRT28 May 2025SA/237/2023

Case brief

AI extract

What is this about?

In this securitisation application, the Applicant challenged the Respondent's appointment of an Advocate Commissioner to take physical possession of mortgaged property. The Tribunal held that the Respondent failed to prove that mandatory statutory notices were issued or received. Consequently, the order appointing the commissioner was quashed, and the Respondent was directed to issue fresh notices

What did the court decide?

The impugned measures for taking physical possession are quashed; the Respondent is directed to issue a fresh demand notice.

Ande Hari Krishna versus Icici Home Finance — Banking and Recovery | DRT (2025)

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IN THE DEBTS RECOVERYTRIBUNAL - 1 AT HYDERABAD

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DATED THIS THE 28TII DAY OF MAY,, 2025

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PRESENT: SRI GUMMADI GOPICHAND, PRESIDING OFFICER

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sA.No.237 /2023

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Ande Hari Krishna, S/o late Ranga Rao Aged 51 years, Occ:business, R/oh.No.3-5- t841313, Pumpingwell Road, Khammam Town & District ... Applicant

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Versus

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ICICI Home Finance, Rep. by its Authorized officer Regd.office:ICICI Bank Towers, BandraKurla Complex, Mumbai-4OO 051 And also branch at lst floor, Srinivasa Complex, H.No. i5-7-632131A, Khanapuram Haveli, Rotary Nagar, Khammam-SO7 002. ... Respondent

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Counsel for the Applicants : Sn L SidharReddg Counsel for the Respondent : Sri M. Siniuas Reddy

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ORDER

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The Applicant filed the present Securitisation Application u/s.^{17 of} the Securitization and Reconstruction of Financial Assets^and Enforcement of Security Interest Act, 2OO2^(SARFAESI Act, 2002) challenging thof the Respondent for taking^physical possessl through Advocate Commissioner ZffirteisailFguft i.d.. to 'ith'e .?c of Ld.PrincipalSr.Judge-cum-CJM, b .:-.) tiinand to set aslde c as illegal and void. j'zo ilNzm 2. The cation, in brief, are that, a'6r*':H &{,M

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sA 237 /2023

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the Applicant availed loan from the Respondent and created mortgage in respect of the schedule property. On 01.07.2023, one advocate commissioner visited the schedule property and demanded the Applicant to handover the physical possession of the schedule property. However, the Applicant has not received any demand notice or possession notice issued by the Respondent and the said possession notice was not affixed on the schedule property and also not published in two leading newspapers. The Respondent by misrepresenting before the Ld.CJM, Khammam, obtained warrant for appointment of advocate commissioner for taking physical possession of the schedule property. Hence the SA.

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.1.

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The Respondent filed Reply contending that the Applicant having availed loan from the Respondent, committed default and so, the loan account was classified as NPA and the Respondent issued demand notice dt. 10.1O.2O22 u/s 13(2) of the SARFAESI Act, 2002 and the said notice was received by the Applicant. Thereafter the Respondent issued possession notice dt.06.01.2023 u/s 13(4) of the SARFAESI Act,2OO2 and the said notice was published in two ieading newspapers. The Applicant has not made out any ground for setting aside the vacate notice dt.2l .O3.2O23 issued as per the orders of Ld.CJM, Khammam in Cr1.M.P.No.lO / 2023.

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Heard Ld. Counsel for the Appiicant and Ld. Counsel for the Respondent and perused the material brought on record.

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5. Now the

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consideration is

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i) established ang ualid grounds for ,i|r$.rrrmd.^{rhUib</sup> initiated bg the Respondentfor taking the SA schedule propertg through i,".^{'7T'i#?iff"'':} t,lli,h,,o}[y

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sA23712023

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AduocateCommissioner pursuant to the ord"ers of Ld.CJM, Khammam?

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ii) To what relief?

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Point No.lil

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There is no dispute regarding the fact that the Applicant availed loan from the Respondent and thereafter committed default and so, the loan account was classified as NPA.

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The specific contention of the Applicant is that he has not received demandnotice and possessionnotice from the Respondent and the said 'possession notice was neither published in two leading newspapers nor affixed on the schedule property and by misrepresenting before the Ld.cJM, Khammam, the Respondent obtained orders for appointment of advocate commissioner for taking physical possession of the schedule property.

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Even though, the Respondent in their Reply, stated that they have duly followed the procedure laid down under the provisions of SARAFAESI Act, 2OO2 and Rules made thereunder in issuing demand notice and possession notice to the Applicant and also for taking physical possession of the schedule property, failed to justify their action by filing necessary material documents along with the Reply. When the Applicant is contending that he has not received any notices, the burden lies on the Respondent to establish that they have duly served the said notices on the Applicant, but for the reasons best known to the Respondent, the Respondent has not filed any documents in support of their contentions. So it can be assumed that t nt has not issued demand notice and possession no nt and without issuing such notices, the to take steps for appointment of advocate rffi*J for takins .ysical possession of the secured asset u/s ?ffiI

sA23712023

14 of the SARFAESI Act,2OO2. In the absence of any material evidence to show that the Respondent has duly complied with the mandatory provisions of SARFAESI Act and Rules,2oo2 while proceeding against the secured asset for taking physical possession u/s 14 of the Act, I hold that the Applicant has made a case for quashing the measures initiated by the Respondent against the SA schedule property under the provisions of the SARFAESI Act and Rules made thereunder. In the circumstances, the Respondent is directed to issue fresh demand notice to the Applicant by duly following the provisions of SARFAESI Act, 2oo2 and Rules made thereunder. Accordingly, this point is answered in favour of the Applicant and against the Respondent.

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Point No.(li):-

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In the result, SA 237 12023 is allowed. Accordingly, the impugned measures initiated by the Respondent for taking physical possession of the secured asset under Section 14 of the SARFAESI Act, 2OO2 through advocate commissioner pursuant to the orders of CJM, Khammam are hereby quashed. However, the Respondent is at liberty to proceed afresh against the SA schedule property to recover their dues by duly following the provisions of SARFAESI Act, 2OO2 and Rules thereunder. No order as to costs.

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Communicate a copy of this order to the parties concerned.

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(Dictated to the Piuate Secretary, transcibed bg her, corrected, signed and pronounced bg me in the open court on this the 281t,dag of Mag, 2025).

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? E tlAY 2m5

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sd/-
(G. GOPTCHANDI
L'Y.%KanRUE COPYTY PRESIDING OFFICER
nir',1, H'fDfR'1AAD,

Ande Hari Krishna v. Icici Home Finance

Case brief

What is this about?

What did the court decide?

Ande Hari Krishna v. Icici Home Finance

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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