Dismissed

Sulaiman Assanar Kunju v. Icici Bank Limited

DRT25 Nov 2025SA/239/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed an application challenging securitization proceedings under the SARFAESI Act. Ruling that the applicant failed to challenge the earlier possession notice under Section 13(4), the court held the applicant was estopped from challenging the subsequent Section 14 measure. No substantial prejudice was found.

What did the court decide?

The Securitization Application challenging the Section 14 proceedings and the CJM order was dismissed with no relief granted.

Sulaiman Assanar Kunju versus Icici Bank Limited — Banking and Recovery | DRT (2025)

¶1

IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

¶2

PRESENT: SRI. SOVAN KUMAR DASH PRESIDING OFFICER

¶3

Dated this the 25^th day of November, 2025

¶4

SECURITIZATION APPLICATION No.239/2023

¶5

Between

¶6

Sulaiman Assanar Kunju, Aged 62 years, S/o. Assanar Kunju, TC 9/113, G-5, G Street, Nakshatra, S.S. Kovil Lane, Kowdiar, Thiruvananthapuram – 695 003. …Applicant

¶7

And

¶8

The Authorised Officer, ICICI Bank Ltd., Mortgage Department, Zonal Office, Pushpamangalam Estate, NH Bye Pass, Edappally – 682 028.

¶9

ICICI Bank Ltd., M.G. Road Branch, Pulimoodu, Thiruvananthapuram – 695 001, Rep. by its Chief Manager. …defendants

¶10

SA 239/2023

¶11

¶12

This Securitization Application having been heard on 12.11.2025 in the presence of Advocate Zakir Hussain for the applicant and Advocate Akash George for the defendants and stood over to this day for consideration, the Tribunal delivered the following:

¶13

F I N A L O R D E R

¶14

Challenging the securitization proceeding initiated by the defendants under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’), the applicant has filed this SA under S.17(1) of the SARFAESI Act with a prayer to set to set aside the entire securitization proceeding including the order passed by the Chief Judicial Magistrate Court, Thiruvananthapuram.

¶15

Brief facts of the case :

¶16

The applicant availed housing loan of Rs.3,00,00,000/(Rupees Three Crores only), a top up loan of Rs.2,61,080,00/(Rupees Two Crores Sixty One lakhs and Eighty Thousand only) by creating equitable mortgage over the properties of an extent of 7.28 Ares having with a residential building thereon as described in detailed in the securitization application. Subsequently, the applicant also availed another additional top up loan of

¶17

SA 239/2023

¶18

¶19

Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs only) by extending the mortgage to the said loan on dated 30.06.2016. He was repaying the loan regularly. But due to spread of Covid-19 pandemic, his business was affected and could not repay the loan. Hence the defendants issued a demand notice on 22.07.2021 under Section 13(2) of the SARFAESI Act calling the applicant to pay the total outstanding of Rs.4,44,81,771/-. Due to non-compliance of the demand notice, possession notice under Section 13(4) of the SARFAESI Act was issued. Hence symbolical possession of the secured asset was taken. Subsequently the applicant filed 2 Writ Petitions before the Hon’ble High Court of Kerala bearing No.27082/2021 and another Writ petition No.2528/2022. In pursuance to interim order the applicant remitted some amount in the loan account. Even after remittance of the amount, the defendants proceeded further with the securitization measure and filed a proceeding under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Thiruvananthapuram. The affidavit furnished before the CJM is not as per the statutory requirement. All the statutory measures having not duly complied. The order passed by the CJM renders illegal and the applicant cannot be dispossessed from the secured asset based upon the illegal and untenable order of the CJM, Thiruvananthapuram. Hence

¶20

SA 239/2023

¶21

¶22

the SA is filed by the applicant praying to set aside the entire securitization proceeding including the order passed by the CJM.

¶23

The defendants filed written statement denying the averments in the SA. It is claimed that the secured asset is registered in the CERSAI Portal. Due to default in repayment of the loan and irregular in repayment, the loan was classified as ‘NPA’ on 31.01.2021. All the statutory measures are duly taken. Since the defendants could not take possession of secured asset, initiated proceeding before the CJM, Thiruvananthapuram, bearing MC No. 285/2023 and based upon the order of the CJM, step was taken to take physical possession of the secured asset, which is impugned in this proceeding. The defendants also offered OTS to the applicant to which he failed to comply the same. The relevant document is filed on 30.11.2025. In absence of challenge to Section 14 measure, the securitization proceeding is not maintainable and sustainable. Hence the SA may be dismissed.

¶24

From the respective case of the applicant and defendants, the following points are emerged for adjudication in this case:

¶25

(i) Whether the securitization measure suffer from any illegality or irregularity to interdict with the same?

¶26

(ii) Whether the applicant is entitled to get any relief in this proceeding?

SA 239/2023

FINDINGS:

Point Nos.(i) & (ii):-

¶31

Both the points being interlinked with each other are taken up together for consideration. In this SA the applicant has challenged the demand notice, possession notice issued under Section 13(4) of the SARFAESI Act and the measure taken under Section 14 of the SARFAESI Act. In the SA in paragraph 5 the defendant has specifically stated that the demand notice dated 22.07.2021 was received whereby the bank has claimed repayment of outstanding amount of Rs.4,44,81,771/- marked Annexure-A1 in this case. After receipt of the demand notice, the applicant has not raised any objection or representation under section 13(3-A) of the SARFAESI Act in disputing the claim. The possession notice for taking symbolical possession of the secured asset was issued by the defendant on 08.01.2021. The same is also not challenged in any forum and symbolical possession of the same was taken. The defendants have also produced material showing publication of the possession notice in Indian Express and Deepika Daily, both in English and vernacular language. The applicant has any grievance against the demand notice and possession notice or the classification of the loan as ‘NPA’, he could have challenged the same in this forum under Section 17(1) of the SARFAESI Act. But did not raise any contention nor took any step against such

¶32

SA 239/2023

¶33

¶34

measure. Now after taking step by the defendants under Section 14 of the SRAFAESI Act, the applicant filed this case claiming various contentions, which are totally untenable and also not acceptable.

¶35

In absence of any challenge to such proceeding within the statutory period of 45 days and the applicant having not disputed the dues, now he is estopped to challenge the same in this proceeding and the claim is apparently barred by limitation. In respect of Section 14 measure, the learned counsel has raised a contention that the payment made by the applicant was not taken into consideration and in the affidavit filed before the CJM the same was not disclosed which violates the proviso of Section 14 of the SARFAESI Act. Hence the order passed by the CJM, Thiruvananthapuram in MC No.285/2023 renders illegal and based upon the same, the defendant cannot take possession of the secured asset. On the other hand, the learned counsel for the defendant contended that the Authorised Officer has sworn an affidavit before the CJM after taking into consideration all the deposits made by the applicant after issuance of the demand notice. In the application it is specifically stated the aggregate amount in the loan account as on the date of filing of this petition is

¶36

SA 239/2023

¶37

¶38

Rs.4,76,39,745/-. There is no violation of the proviso of Section 14 of the SARFAESI Act.

¶39

Further the learned counsel has cited a Division Bench Judgment of the Hon’ble Telangana High Court reported in 2019 KHC 3959 in the case of Tulsi Rocks Pvt. Ltd., Secunderabad &

¶40

Others v. Bank of India & Anr., wherein at paragraph 21 it is held as follows:-

¶41

“21. Persons, who do not choose to challenge the possession notice under Section 13 (4) of the Act, cannot merely challenge the order under Section 14 of the Act. While Section 13 (4) of the Act is the substantial provision conferring the power on the authorized officer to take possession, Section 14 of the Act is merely executory in nature for aiding and assisting the authorized officer in taking over possession. A mere challenge to an order under Section 14 of the Act without challenging a possession notice before the appropriate forum under Section 13 (4) of the Act is like a challenging an execution petition without challenging a decree.”

¶42

In view of this ratio the applicant having not challenged the measure under Section 13(4) of the SARFAESI Act the measure taken under section 14 of the SARFAESI Act cannot be challenged.

¶43

There is no illegality in such proceeding. Hence the applicant cannot seek relief against the same. There is no material illegality or defect is found from the application and the affidavit furnished by the Authorised Officer before the CJM is found not the same, caused any substantial prejudice to the applicant.

¶44

SA 239/2023

¶45

¶46

The Hon’ble Apex Court in the Judgment reported in 2024 INSC 978 in the case of Celir LLP V. Sumati Prasad Bafna & Ors. while dealing the case regarding interference with the sale proceeding held at paragraph No.218 as follows:

¶47

“Mere irregularity or deviation from a rule which does not have any fundamental procedural error does not take away the foundation of authority for such proceeding. In such cases, courts in particular should be mindful to refrain entertaining any ground for challenging an auction which either could have been taken earlier before the sale was conducted and confirmed or where no substantial injury has been caused on account of such irregularity.”

¶48

Such principle laid down by the Hon’ble Apex Court is applicable with the facts and circumstances of the present case. Even if there is any error or defect in any of the measure which did not cause any substantial prejudice to the applicant. So nothing is sworn by the applicant that due to any error or defect in the securitization proceeding had caused any substantial prejudice to the applicant. In absence of the same, interference with the securitization proceeding is not at all warranted. Besides the same the defendant has produced materials showing on 30.01.2025 the ‘OTS’ proposal of the applicant was accepted. But he did not comply the same. If there is any substantial error or defect in the proceeding, the applicant ought to have not submitted any proposal for ‘OTS’. Even the same was granted he did not comply the same

¶49

SA 239/2023

¶50

¶51

and did not keep his promise. Hence he is legally not entitled to challenge the securitization proceeding.

¶52

The Hon'ble Apex Court in the judgment reported in (2022) 2 SCC 221 in the case of Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and others, at

¶53

paragraph 18 held as follows:-

¶54

“18. ……….. Taking into consideration the entire facts of the case, which perspicuously reflect disingenuous conduct on part of the Borrower to gain indulgence, unfulfilled assurances and promises, their unwillingness to pay, and in light of the law laid down by this Court, we are of the view that the Borrower has waived and is estopped from challenging violation of Section 13(3A) of the SARFAESI Act and hence, the first issue is decided in favour of the Bank………”

¶55

Further the applicant has failed to show any material error in the proceeding under section 14 of the SARFAESI Act. He having not challenged the measure taken under Section 13(4) of the SARFAESI Act, which is purely administrative in nature and the learned Chief Judicial Magistrate has applied mind to the materials on record and passed the Judgment.

¶56

In view of the Judgment cited by the learned counsel (supra) the applicant has also not ready to challenge the said proceeding. In absence of any illegality or irregularity in the securitization proceeding, the applicant is not entitled to get any relief.

¶57

SA 239/2023

¶58

¶59

Hence it is ordered:-

¶60

ORDER

¶61

In view of the forgoing reasons, the SA being devoid of any merit, is hereby dismissed.

¶62

(Dictated to my PA, corrected and pronounced by me in the open Tribunal on this the 25^th day of November, 2025).

¶63

[SOVAN KUMAR DASH] PRESIDING OFFICER

¶64

Documents on the part of the applicant

¶65

Annexures	Date	Particulars of documents
Annexure-A1	22.07.2021	True copy of the demand notice issued by the 1^stdefendant.
Annexure-A2		True copy of the loan account details as on 25.11.2021 in respect of the Home Loan of Rs.3,00,00,000/- issued by the 2^nddefendant bank.
Annexure-A3	25.11.2021	True copy of the loan account details as on 25.11.2021 in respect of the top up loan of Rs.2,61,08,000/- issued by the 2^nddefendant bank.
Annexure-A4	25.11.2021	True copy of the loan account details as on 25.11.2021 in respect of the top up loan of Rs.1,50,00,000/- issued by the 2^nddefendant bank.
Annexure-A5	08.12.2021	True copy of the possession notice affixed by the 1^stdefendant.
Annexure-A6	25.01.2022	True copy of the interim order in Writ Petition (c) No.2528/2022.
Annexure-A7	23.02.2022	True copy of the receipt showing the remittance of Rs.5,09,740/- by way of RTGS Transfer.
Annexure-A8	23.02.2022	True copy of receipt showing the remittance of Rs.2,40,260/-.
Annexure-A9	31.12.2021	True copy of receipt issued by the 2^nd defendant bank.
Annexure-A10	24.03.2023	True copy of the receipt showing the remittance of Rs.30,00,000/-
		to the Loan Account No. LBTVM00002168773.
Annexure-A11	06.05.2023	True copy of the notice issued by the Advocate Commissioner.
Annexure-A12	27.03.2023	True copy of the Order of the Chief Judicial Magistrate Court,
		Thiruvananthapuram in MC No. 285/2023.

¶66

Annexure-A13	True copy of	the	MC	No.285 of
	2023 filed by Authorised Of	the ficer	1^st be	defendant fore the
	Chief Judicial Thiruvananthapu	Mag ram.	istra	te Court,
Annexure-A14	True copy of the 1^st defendant	affid Auth	avit oris	filed by the ed Officer
	before the Chie	f Jud	icial	Magistrate
	Court, Thiruvana	nthap	uram	.

¶67

Documents on the part of the defendants

¶68

Annexures	Date		Partic	ular	s of d	ocume	nts
Annexure-B1	14.12.2021	True India made	copy n Ex of the	of pres Pos	the d s Pa sessio	aily n per p n Notic	ewsp ublic e.	aper ation
Annexure-B2	14.12.2021	True Deep the P	copy ika Pa ossess	of per ion N	the d publi otice	aily n cation .	ewsp mad	aper e of
Annexure-B3		True state LBTV	copy ment M0000	of in 216	the loan 8773.	Loan Acco	Ac unt	count No.
Annexure-B4		True state LBTV	copy ment M0000	of in 216	the loan 8774.	Loan Acco	Ac unt	count No.
Annexure-B5		True state LBTV	copy ment M0000	of in 296	the loan 2529.	Loan Acco	Ac unt	count No.
Annexure-B6		True evide notic	copy ncing e.	of disp	the atch	postal of the	rec de	eipts mand
Annexure-B7		True evide notic	copy ncing e.	of th rec	e po eipt	stal tra of the	ck r de	eport mand
Annexure-B8		True Certif	copy o icate.	f th	e CER	SAI Re	gistr	ation

¶69

PRESIDING OFFICER

¶70

IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

¶71

PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER

¶72

Dated the 25^th November, 2025

¶73

SA No.239/2023

¶74

Between Sulaiman Assanar Kunju, Aged 62 years, S/o. Assanar Kunju, TC 9/113, G-5, G Street, Nakshatra, S.S. Kovil Lane, Kowdiar, Thiruvananthapuram – 695 003. …Applicant

¶75

And

¶76

The Authorised Officer, ICICI Bank Ltd., Mortgage Department, Zonal Office, Pushpamangalam Estate, NH Bye Pass, Edappally, PIN – 682 028 & Anr. …Defendants

¶77

F I N A L O R D E R

Sulaiman Assanar Kunju v. Icici Bank Limited

Case brief

What is this about?

What did the court decide?

Sulaiman Assanar Kunju v. Icici Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Basil Co. versus Kerala Gramin Bank

Uco Bank versus Sh. Bachchan Kumar Singh

Kotak Mahindra Bank Limited versus Bhagwant Singh

Indu Kumari Pandey versus Union Bank of India

Bank of Baroda versus M/S K. K. Enterprises

State Bank of India versus Mr. Praveen