Dismissed

Mohammedkutty T v. Urban Co. operative Bnak Ltd.

DRT2 Sept 2025SA/268/2023

Case brief

AI extract

What is this about?

A Securitization Application filed by borrowers against a bank was dismissed. The borrowers challenged a demand notice and subsequent efforts by the bank and an Advocate Commissioner to take physical possession of mortgaged property via the Chief Judicial Magistrate, alleging procedural defects under the SARFAESI Act. The Tribunal found statutory requirements met.

What did the court decide?

Securitization Application No. 268/2023 is dismissed. No costs are awarded.

Mohammedkutty T versus Urban Co. operative Bnak Ltd. — Execution and Attachment | DRT (2025)

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Fair Order

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IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

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DATED THIS 02^nd DAY OF SEPTEMBER, 2025

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER

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S.A No. 268 of 2023

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Between

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Mohammed Kutty T., S/o. Kunjamutty, “Handsom”, Near C.K.Mill, Vaniyambalam P.O., Malappuram District-679339.

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Asambi Nananchirakkal, W/o. Thandupaakkal, Muhammedkutty, “Handsom”, Near CK.Mill, Vaniyambalam P.O., Malappuram District-679339.

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--- Applicants

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And

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The Nilambur Co-operative Urban Bank Ltd., Wandoor Branch, Wandoor, Malappuram District-679328 Represented by its Authorized Officer.

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--- Defendant

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SA No.268 of 2023

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This Securitization Application coming on 06.08.2025 for final hearing before me in the presence of Mr. Ajmal, Counsel appearing for the Applicants and Ms.Nimisha, Advocate 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:

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O R D E R

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This Securitisation Application was filed on 04.05.2023 seeking to set aside Annexure-A5 notice and all other measures taken by defendant bank against the applicant.

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The applicants have admitted the availment of credit facility to a sum of Rs.50,00,000/- on 26.03.2018 from the defendant bank upon creation of mortgage over the immovable property belonging to the 2^nd applicant as the collateral security for the availment of the aforesaid credit facility. The applicants have also admitted their default in repayment of the outstanding loan due to the defendant bank. Hence the loan account of the applicants came to be classified as Nonperforming Asset.

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Demand notice dated 6.12.2019 was issued calling upon them to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. The applicants neither sent any objection/representation to the demand notice nor did they clear off their liability due to the defendant bank.

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Since the applicants failed to respond to the terms of the demand notice, the defendant approached the Chief Judicial Magistrate Court, Manjeri and filed Annexure A2 application and Annexure A3 affidavit under Section 14 (1) of the SARFAESI Act, 2002. Order came to be passed appointing advocate commissioner to take physical possession of the secured asset. The Advocate Commissioner issued Annexure A4 notice dated 22.03.2023 and another notice dated 19.07.2023, Annexure A5 to the applicants informing them that he would take physical possession of the secured asset. The applicants having aggrieved against the above measures have filed this SA seeking for the reliefs stated supra:

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Page 2 of 5

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SA No.268 of 2023

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The counsel appearing for the applicants submitted that the defendant without issuing possession notice approached the Chief Judicial Magistrate Court, Manjeri for taking physical possession of the secured asset and that the existence of the building in the secured asset and the door number of the building was not disclosed in Annexure A2 application and that the description of the property is defective and unidentifiable and that hence the building cannot be taken possession.

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It is submitted further by the counsel for the applicant that Annexure A3 affidavit was filed in contravention to the proviso of Section 14 (1) of the SARFAESI Act, 2002 and that date of filing of the petition and affidavit was not stated and that Annexure A5 notice issued by the Advocate commissioner is not proper and that the SA may be allowed as prayed for.

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The counsel appearing for the defendant submitted that the Hon’ble High Court of Kerala passed the order dated 25.02.2020 in W.P.C No.3119 of 2021 directing the applicant to pay Rs.10 lakhs within four weeks and that it was not complied with. Possession notice dated 30.01.2021 was issued prior to approaching the Chief Judicial Magistrate Court, Manjeri for taking physical possession of the secured asset. Correct description of the property is furnished in Annexures A2 and A3. The averment of the applicant that secured asset is unidentifiable is incorrect. All the statutory requirements contemplated under Section 14 (1) of the SARFAESI Act, 2002 has been complied with. Therefore, SA may be dismissed with cost to the defendant.

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Though it is averred in the written statement that the defendant issued possession notice dated 30.01.2021, no proof for the same has been produced. Be that it may so, there is no prohibition for the defendant to approach the Chief Judicial Magistrate Court, for taking physical possession of the secured asset without resorting to the measure under Section 13(4) of the SARFAESI Act, 2002, as laid down by the Hon’ble Supreme Court in Standard Chartered Bank and Ors. V. Noble Kumar and Ors . Hence, this Tribunal does not find any merit in the submission of the counsel for the applicant that the defendant approached the Chief Judicial Magistrate Court, Manjeri for taking physical possession of the secured asset without issuing possession notice.

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Page 3 of 5

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SA No.268 of 2023

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In Annexure A2 application and Annexure A3 affidavit the description of the secured asset as stated in document No. 3582/1997 of S.R.O., Vandoor is clearly and correctly stated. The word “all the part and parcel of the property” which is stated in the description of the property implies the existence of building in the property. The survey number in which the property is situated is also stated in Annexures A2 and A3. Therefore, this Tribunal does not find any substance in the submission of the applicants that the property cannot be identified, and that building in the property cannot be taken physical possession.

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A perusal of Annexure A3 affidavit shows that all the statutory requirement contemplated under clauses (i) to (ix) to the proviso of Section 14 91) of the SARFAESI Act, 2002 has been complied with. The applicants have not averred in the SA as to whether the order passed by the Chief Judicial Magistrate Court, Manjeri in CMP No.45/2023 suffers from any infirmity or any illegality. Hence, the applicant is not entitled to challenge Annexure A5 notice without challenging the order passed in CMP No.45/2023.

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In view of the foregoing reasons, this Tribunal holds that the applicants are not entitled to get the reliefs sought for in the SA.

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Resultantly SA No.268/2023 stands dismissed. No costs.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and

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pronounced by me in the open court on this the 02^th day of September, 2025.

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(Su. WILLYAHM) PRESIDING OFFICER

al/-

Page 4 of 5

SA No.268 of 2023

List of documents filed by the Applicant along with the S.A.

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Sl. No.	Date	Particulars
1.	25.02.2020	True copy of the order in W.P.(c) No.5400 of 2020 of the Hon’ble High Court.	Annexure-A1
2.	…….	True copy of CMP No.45 of 2023 filed before the Chief Judicial Magistrate Court,Manjeri.	Annexure-A2
3.	……	True copy oof the affidavit filed in support of CMP No.45 of 2023 filed before the Chief Judicial Magistrate Court, Manjeri.	Annexure-A3
4.	22.03.2023	True copy of Advocate Commissioner’s notice dated 22.03.2023.	Annexure-A4
5.	19.07.2023	The true copy of the Advocate Commissioner notice sent by the Advocate Commissioner	Annexure-A5
6.	…..	Medical Records	Annexure-A6

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(Su. WILLYAHM) PRESIDING OFFICER

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al/

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Page 5 of 5

Mohammedkutty T v. Urban Co. operative Bnak Ltd.

Case brief

What is this about?

What did the court decide?

Mohammedkutty T v. Urban Co. operative Bnak Ltd.

Case brief

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What did the court decide?

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