DT-2 Ernakulam dismissed an application under Section 17 of the SARFAESI Act where applicants challenged possession proceedings. The court held that the burden lies on the borrower to prove the secured asset was agricultural, which was not discharged here.
Application dismissed; no relief granted to applicants.
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.
IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM
PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER
Dated this the 28th day of April, 2025
SECURITIZATION APPLICATION No.251/2023
Between
W/o. Fazal, Manayath House, Pookodu Desom, Pookodu Village, Kottappadi P.O., Chavakkad Taluk, Thrissur District, PIN 680 505.
SA 251/2023
2
And
This Securitization Application having been heard on
15.04.2025 in the presence of Advocate M/s. Aju Mathew & Shani K.Krishnan for the applicants and the defendants being absent and stood over to this day for consideration, the Tribunal delivered the following:
F I N A L O R D E R
Challenging the securitization proceeding initiated by the defendants under the provisions of the Securitization and
SA 251/2023
3
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’), the applicants have filed this SA under S.17(1) of the SARFAESI Act.
Brief facts of the case :
Act, bearing MC No.325/2023 in the Court of Chief Judicial Magistrate, Thrissur and obtained an Order in taking possession of
SA 251/2023
4
the agricultural land of the applicants. An Advocate Commissioner was appointed to take possession of the secured asset. As the secured asset is an agricultural land, the SARFAESI Act is not applicable and the entire proceeding is illegal. The defendant No.1 cannot take possession of the secured asset. Hence the SA is filed by the applicants praying to set aside the illegal Order passed by the Chief Judicial Magistrate Court, Thrissur and the notice issued by the Advocate Commissioner.
FINDINGS:
4. Availing of loan by the applicants is not disputed in this
case. In the proceeding bearing CMP No.325/23 under Section 14(1) of the SARFAESI Act it is averred by the defendant no.1 that to secure loan the property of an extent of 49.828 cents (20.165 Ares of land) of the 2nd applicant Mr.Fazal, who is the 2nd applicant in this case, was mortgaged by depositing the title deeds on 20.06.2014. Due to non-repayment, the loan was classified as ‘NPA’ in the year 2015 and proceeding under the SARFAESI Act was initiated. The demand notice under section 13(2) of the SARFAESI
SA 251/2023
5
Act was issued to the applicants in the year 2017. But the applicants did not take any interest in repaying the outstanding amount. Hence the measure under Section 13(4) of the SARFAESI Act was taken in the year 2018. Thereafter the defendant bank approached the Chief Judicial Magistrate Court, Thrissur in MC No. 325/2023 to take possession of the secured asset. After referring the application, document and affidavit the learned Chief Judicial Magistrate passed an Order in taking possession of the secured asset, which is impugned in this case.
SA 251/2023
6
Hence it is ordered:-
SA 251/2023
7
O R D E R
entitled to get any relief and the SA, being devoid of any merit, is
hereby dismissed but in the circumstances, without costs.
(Dictated to my PA, corrected and pronounced by me in the open Tribunal on this the 28th day of April, 2025.)
[SOVAN KUMAR DASH] PRESIDING OFFICER
SA 251/2023
8
Documents on the part of the applicants
| Annexures | Date | Particulars of documents |
|---|---|---|
| Annexure-A1 | True copy of the complaint filed by the 1st defendant as M.C.No.325 of 2023 on the file of the Chief Judicial Magistrate Court, Thrissur. |
|
| Annexure-A2 | True copy of the affidavit filed by the 1st defendant in M.C.No.325 of 2023 on the file of the Chief Judicial Magistrate Court, Thrissur. |
|
| Annexure-A3 | 04.05.2023 | True copy of the Order passed in M.C.No.325 of 2023 on the file of the Chief Judicial Magistrate Court, Thrissur. |
| Annexure-A4 | 11.05.2023 | True copy of the notice issued by the Advocate Commissioner. |
| Annexure- A4(a) |
English translation of Annexure A4 notice. |
Documents on the part of the defendants
NIL
PRESIDING OFFICER
IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM
PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER
Dated the 28th April, 2025
SA No.251/2023
Between
Jacy Fazal, Aged 41 years, W/o. Fazal, Manayath House, Pookodu Desom, Pookodu Village, Kottappadi P.O., Chavakkad Taluk, Thrissur District, PIN 680 505 & Others …Applicants
And
The Kerala State Co-operative Bank, (Formerly The Thrissur District Co-operative Bank Ltd.), Head Office Branch, Thrissur, PIN -680 001. Represented by its Authorized Officer. …Defendants
F I N A L O R D E R
3 issues framed by the court
Whether the burden of proof regarding the agricultural nature of the secured asset lies on the borrower seeking exemption under the SARFAESI Act.
Whether the applicants successfully discharged the burden to prove the secured property was used for agricultural purposes at the time of loan availing.
Whether the application under Section 17 of the SARFAESI Act deserves relief in the absence of evidence establishing the agricultural nature of the asset.
Colour shows how this judgement treated each authority
K.Sreedhar v. M/s.Raus Constructions Pvt. Ltd. & othersRelied on¶6
2023 KHC 6012 K.Sreedhar v. M/s.Raus Constructions Pvt. Ltd. & others
3 provisions across 1 enactments
Jacy Fazal
Fazal
Rafia
The Kerala State Co-operative Bank
SOVAN KUMAR DASH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
