Dismissed

V Tamilselvan v. Union Bank of India (Andhra Bank)

DRT27 Mar 2025SA/444/2023

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal dismissed the applicant's challenge to a Section 14 possession order. The court held that the bank strictly followed statutory procedures, including valid demand notices, possession notices, and newspaper publications, finding no illegality in the impugned magistrate's order.

What did the court decide?

Impugned Section 14 order allowing possession is sustained; the Securitization Application stands dismissed.

V Tamilselvan versus Union Bank of India (Andhra Bank) — Banking and Recovery | DRT (2025)

SA No.444/2023 (C)

27.03.2025

IN THE DEBTS RECOVERY TRIBUNAL-III, CHENNAI

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Dated this the 27^th day of March, 2025

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Present: SMT. S.V. GOWRAMMA Presiding Officer

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SA No. 444 of 2023

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V. Tamil Selvan, [PAN: ADAPT246E][DOB: 20/05/1970] S/o. Shri. M.S. Veerappan, Door No.151, Vandikara Street, Sitharkadu Mayiladuthurai-609 003. ….Applicant

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-Vs-

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The Authorized Officer, Union Bank of India Moovalur Branch [IFSC:UBIN0818810] Door No.1/16, K.M.Nagar, Moovalur, Mayiladuthurai – 609 003. ….Respondent

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Counsels on record / appeared:

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Counsel for Applicant : M/s. G.Sanjeevi Counsel for Defendant Bank : P. Veeraraghavan

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ORDER ON SA No. 444 /2023

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The present Securitization Application [SA] is filed under sub section [1] of S.17 of the Securitization And Reconstruction of Financial Asset and Enforcement of Security Interest Act,2002 (for short the „Act‟) challenging the action and the measure taken by the secured creditor under the Security Interest Enforcement Rules, 2002 [for short the Rules].

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The Application Securitization Application [SA] is filed impugning the Section 14 order dated 08/08/2023 passed in Crl.M.P. No.36 of 2023

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passed by the Hon‟ble Chief Judicial Magistrate of Mayiladuthurai. The outstanding amount due as per S.14 order is Rs.25,00,000/-.

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3. Pleadings of the applicant:

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3.1 The case of the Applicant is that Applicant along with one Mr.R.Krishnakumar, had incorporated a company in the name of M/s. Lead Engineering & Construction Private Limited to which they are the Directors, holding maximum share capital

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3.2 The Applicant as Director of the company had approached the erstwhile Andhra Bank, Moovalur Branch and availed an Open Cash Credit loan of Rs.10 lakhs and a Term Loan of 15 lakhs on 07/03/2017; had created a mortgage of the property to the facilities availed by Lead Engineering Constructions Private Limited, by way of Deposit of the Title Deeds dated 07/03/2017 which is registered as Document No.318/2017 in favour of the Respondent Bank, which was intended to be offered as security for the facility sanctioned by the bank. In fact the applicant mortgaged the property under the sale deed dated 07/09/2013, vide Doc.No.1959/2013 in order to secure the Term Loan of 25 lakhs which the respondent bank had sanctioned.

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3.3 However the bank has treated said Mortgage, which is registered as Doc.No.318/2017 as security towards the Credit Facilities availed by M/s Lead Engineering & Construction Private Limited. Thus there is no security interest created by the applicant in favour of the Respondent bank

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3.4 The Applicant was regularly servicing the interest by remitting the payment without any default up to Oct, 2018. However, due to various cheating and fraudulent acts committed by the other Director, the account of the company was classified as Non-Performing Asset (NPA) without serving the Legal requirements, while classifying the account as NPA. The Applicant made various endeavor to rehabilitate the business and due to the Covid-19 pandemic the rehabilitative measures cannot be done. Hence the applicant approached the bank with a One Time Settlement (OTS) for an amount of Rs.90,00,000/- including the credit facilities which was availed by the Applicant on 2021

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3.5 The OTS was accepted by the Regional Office on 23/11/2021,and the applicant was to make a payment of Rs.10,00,000/- in the Sundry OTS Pooling Account of Respondent bank No.188112850037000, for a period of 23/11/2021 to 28/03/2023

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3.6 The Applicant presently working in Singapore and bonafidely intended to settle the dues. However it is a shock when he received the information relating Impugned Possession Order dated 08/08/2023 and the bank has routinely followed the exercise. Neither the Demand Notice under Section 13(2) of the SARFAESI Act, Rule 3 of the Security Interest Enforcement Rules, 2002 has been issued nor the Possession Notice under Section 13(4) of the SARFAESI Act, 2002 have been received prior to the invocation of the Section 14 Application which has culminated into Impugned Order dated 08/08/2023 passed by the Learned Chief Judicial Magistrate, Mayiladuthurai. The Impugned Order dated 08/08/2023 is

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liable to be set aside, as the Respondent Bank has not followed the mandatory procedures stipulated under the SARFAESI Act, 2002

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3.7 The Applicant has discharged the housing loan which was standing in his wife‟s name Mrs.T.Saraswathi and title deeds dated and

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sale deeds dated 28/08/2012 were not returned, the applicant has detailed the loan discharged as under:

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S.No.	Date	Amount Paid for discharging the Account (Rs.)	Title Docu not return the mortga which Defendant the same duly disch by way Discharge Receipt.	ments ed to ge in the Bank is not arged of
1)	04/02/2022	Rs.32,88,474/-, in the Housing Loan Account bearing No. 188130100112065, in the name of his wife Mrs.T.Saraswathi.	Sale Deed 22/08/2012, Doc. No.1682/20 not return far and Mortgage 14/07/2017, Doc.No.1112 is not registered s	dated vide 12 is ed so the dated vide /2017 duly o far.
2)	28/03/2023	Rs.38,70,000/- in the Housing Loan Account Bearing No.188130100067978 & 188130100101012, in the name of Mr.V.Tamilselvam (the	Sale Deed 03/09/2015, Doc.No. 1762/2015 returned s and the Mo dated 04/09/2015,	dated vide is not o far rtgage vide

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SA No.444/2023 (C) 5

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27.03.2025

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		Applicant herein)	Doc.No.1768/2015 and Extension of MODT dated 14/02/2017 vide Doc. No.214/2017 and the same is not duly discharged by way of Discharge Receipt
3)	30/06/2023	Rs.13,05,821/- in the Term Loan Account bearing No.188130100021356 in the name of Om Sakthi Industries	Sale Deed dated 27/02/2013 vide Doc.No.352/2013 is not returned so far and the Mortgage dated 30/09/2013, vide Doc. No.1995/2013 and same is not duly discharged by way of Discharge Receipt.

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3.8 In spite of Applicant discharging the liability, to which the banker

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released the title deeds, the Applicant is also willing to settle the legally enforceable dues. The respondent bank had classified Open Cash Credit limit of Rs.10,00,000/- and Term Loan of Rs.15,00,000/- as NPA without following the RBI guidelines. Hence Impugned order is liable to be set aside.

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3.9 The Respondent Bank has not filed the mandatory affidavit duly affirmed by the Authorized Officer as required under provision to Section

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14 of SARFAESI Act, 2002. The outstanding dues of M/s. Lead

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Engineering & Construction Private Limited is stated as Rs.11,99,120/- as on 31/01/2020, in Cash Credit Account and Rs.16,52,016/- as on 07/02/2020, altogether is Rs.28,51,136/-, Applicant had never intended to create a mortgage by way of Deposit of Title Deeds vide Doc.No.318/2017, for the Term loan and Open Cash Credit availed by M/s. Lead Engineering and Construction Private Limited,

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3.10 It is contended that the bank sanctioned Rs.25 lakhs to the applicant and without his consent, the bank has maintained the custody of the documents to secure the credit facility of M/s.Lead Engg. & Constructions Private Limited. Hence the liability cannot be fastened on the Applicant to the credit facility availed by the said company. However it is submitted that there is no security interest created in favour of the Respondent and same is not registered in the central registry.

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3.11 It is also alleged that the bank has not filed affidavit that is mandatory to Section 14, and the respondent objected the fixed grounds of the applicant, the learned Chief Judicial Magistrate, Mayiladuthurai has passed the impugned order without looking into the documents, which lacks bonafides as the bank has failed to comply with the statutory requirements of the SARFAESI Act and hence Section 14 order is required to be set aside, and the bank has to be directed to pay the compensation to the applicant and provide all the costs, as the Authorized Officer to ensure the measure.

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4. Objections of the respondent bank:

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4.1 The Respondent Bank has filed a counter along with the documents inter alia contending therein that the applicant has not approached the Tribunal with clean hands and not disclosed the true facts. As applicant suppressed crucial facts of various limits enjoyed by the applicant, hence on this ground the Applicant claim is liable to be dismissed

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4.2 Respondent bank submits that the applicant is not a genuine borrower and he is living outside the country and has no connectivity to the Respondent Bank. Even legal notice issued on 10.04.2021 calling upon the applicant to repay the loan was also not responded. In fact he is living as a fugitive to escape from long arm of law. The Applicant had availed OCC of Rs.20 lakhs and Term Loan of Rs.32 Lakhs in the name of Om Shakthi Industries which is the Partnership Firm. The applicant was sanctioned the Term loan and OCC loan on 13/09/2013 and 12/01/2015 to which the applicant had filed appeal in S.A.No.56 of 2022 which came to be dismissed on 12/04/2023.

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4.3 The applicant along with his wife Saraswathi availed housing loan for Rs.30 lakhs on 12/07/2017 and the account become a NPA and legal notice are also not answered by the applicant. Hence applicant is not a bonafide borrower and has diverted all the loan amount without servicing the account, hence the respondent was constrained to classify the account as fraudulent in nature.

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4.4 The applicant had filed the present application against the order of Chief Judicial Magistrate, Mayiladuthurai, dated 08/08/2023 on the

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ground that affidavit is not filed along with the application and the Order dated 08/08/2023 passed by the magistrate is produced which clearly states that the bank had filed application under Section 14 of the SARFAESI Act along with the affidavit duly affirmed by the authorized officer. Applicant had also challenged the sale notice dated 24/01.2022 in S.A. No.57 of 2003 which came to be dismissed by this Tribunal on 12/04/2003 as the sale did not take place

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4.5 The bank had taken symbolic possession of the property on 06/10/2018 by possession notice dated 04/01/2019 and also affixed the possession notice on the wall of the property on 10/01/2019. The possession notice was published in the Hindu Newspaper and in Dhinamani. The first sale notice was issued on 10/10/2019 and last sale notice was issued on 24/01/2022 to which there were no bidders.

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4.6 The Respondent bank denies all the allegations in paras (iii) to (v) of the facts, in fact Mortgage is created on 07/03/2017 document No.318/2017, SRO, Mayiladuthurai. Further denies the allegations, that the applicant has not created security for the mortgage property and in fact mortgage of title deeds was registered as collateral security favouring the bank. The applicant has not serviced the loan as claimed and the account was classified as NPA as per the RBI norms and the claim that he has created jobs for local youths is totally a bogus and not rendered business and left the country without informing the bank. Further the contention that MOD was not created for the loan availed by the M/s. Lead Engineering and Constructions Pvt. Ltd., and the term loan was

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sanctioned as Rs.15 lakhs and he claims that he sought for a loan for Rs.25 lakhs as Term Loan which was not granted, which is also a absolute falsehood. However it is against the evidence of the registered document and it is estopped under the provision of Bharatiya Sakshiya Act 2023 (Indian Evidence Act)

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4.7 The respondent denies every allegations made in para (vi) to (vii) that the bank had not accepted with the OTS Proposals. The further allegations, applicant is living in Singapore and claims that he has not received any sale notice 24.10.2024 or possession notice is a wrong statement and he is not living in India and the claim made by him is totally a bogus.

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4.8 The account was classified as NPA as per the RBI norms and a sale notice was issued on 17/02/2022 and the allegation that the Mortgage is created for Term Loan is also denied. The mortgage created by the applicant wife for Housing Loan is not registered, for the reason it was classified as fraudulent in nature and the applicant is liable to pay all the dues in all the accounts put together which is more than Rs.100 lakhs , for that applicant is liable to pay outstanding due from M/s Om Shakthi, a partnership firm, the applicant is not deprived in any way.

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4.9 The mortgage is the Security interest is registered with the Central Registry with Registry No.400060730287 dated 22/04/2020. The auction sale of the property was put to sale on 30/08/2017, 27/02/2020 and 17/07/2020 and there were no bidder for the sale and the applicant did

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not show any interest to repay the liability and left India without intimation to bank.

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4.10 In fact the property is secured asset as per registered MOD which is an admitted fact and there is no violation of any provision of law under section 13(2), 13 (3-A) and no grievance is raised in the matter. In fact, Section 13 (2) was not questioned in time and the was classified as NPA as per norm and 13(4) Notice was issued and duly served and the bank has not violated the rights of the applicant under Section 13 (3-A) of the SARFAESI Act and all the statutory notices is issued, demand notice and possession notice and also sale notice is duly complied and the notices are affixed on the property without any deviation along with the paper publications. Hence the bank has followed all the statutory provisions as per the Act. In fact the applicant during the hearing of S.A. No.57 of 2022, submitted compromise proposal to close the matter which he has not done, instead he has filed this application with vexatious intentions.

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4.11 It is seen that the loan availed is in the year 2017 and the applicant diverted the fund for other purposes and he left the country without informing the bank and therefore he cannot claim any equity, hence the bank was dismissed

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Heard both sides of the Counsels and perused the records of the case.

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27.03.2025

5.1 It is manifest from the records that the Applicant is a private limited company, Tamil Selvam, is one of the director of M/S lead Engineering and Constructions Private Limited company and Mr. Krishnakumar is the second Director and Vanitha is the Guarantor to the Loan availed by the company. The applicant has mortgaged the property to the credit facilities availed by the company M/s. Lead Engineering And Constructions Private Limited (Fore short Company) represented by its Director Tamil Selvan, Krishna Kumar. The company had availed the Cash Credit facilities of Rs.10 lakhs vide loan Account No. 188113100000803 and Term Loan of Rs.15 Lakhs vide loan Account No. 188130100102703

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5.2 The applicant had mortgaged his property situated at Block No.7 Poombukar salai, on the Southern side, Town Survey No.42/1(old Survey No.42) Manai with total extent of 6724 sq.ft, Eastern portion with and extent of 326.04 sq.mtr of land with the following boundaries.

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North of: Manai belonging to Viswanathan Koil South of: Poombukar Salai East of : Manai belonging to B.Sathiyanarayanan West of : Manai belonging to Bakiyam

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and had deposited title deeds favoring Respondent Bank as secured towards the credit facility is admitted in 9^th para to 18^th para of SA.

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5.3 The contention of the Applicant that he had mortgaged the property to a loan of Rs.25 lakhs and not to the loan availed by the company is baseless as on perusal of the mortgage deed dated 07/03/2017 produced the Respondent Bank, it is evident that the applicant had mortgaged his

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property as collateral security towards the credit facility amounting to Rs.20 lakhs availed by the company, hence the contention that the property was not mortgaged to the loan availed by the Company fails.

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5.4 As the applicant did not repay the credit facility, the bank has classified the account as NPA on 30/09/2018 demanding the dues to be paid by the company M/s. Lead Engg & Constructions Private Limited M.Veerappan, V. Tamil Selvan, R. Krishnakumar and also the guarantor within a period of 60 days. The respondent bank has issued Section 13(2) Demand Notice on 06/10/2018 demanding the payment of total outstanding of Rs.23,18,261 as on 04/10/2018.

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5.5 The respondent bank had issued another section 13(2) Demand is produced by the Respondent Bank at 22 and 23 pages reflects that the Director are Krishna Kumar and Vanitha, issued under Section 13 of (2) demand notice. However, the notice sent to the applicant has returned unserved as „addressee left‟. The applicant who claims to be out of India and in Singapore have also contended that he has cleared loan availed by his wife which clearly highlights that he was aware of the measures taken by the respondent bank for the default committed towards the repayment of the loans.

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5.6 It is seen that the Demand Notice sent to Mr. R. Krishna Kumar is received and the notice sent to Ms. Vanitha is also received and the notice sent to M/s. Lead Engg., & Construction Pvt. Ltd. Is returned unserved as left india. It is pretended to note that M/s. Lead Engg. & Constructions

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Pvt. Ltd. is represented by its directors none other than Mr. R. Krishna Kumar and the Guarantor Ms. Vanitha who is wife of Mr. R. Krishna Kumar. Further as the borrower and guarantor did not raise any objections to the demand notice under section 13 (3A) bank has proceeded to issue Section 13(4) Possession notice which was also sent by RPAD and the notices have returned unserved, the bank as per the procedure has published in two Newspapers as required and mandated under the Act.

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5.7 As the borrower and guarantor did not liquidate the liability within 60 days, the Respondent Bank had issued under the Section 13(4) possession Notice on 04/01/2019 under the act. The notices was sent by the registered post which is received by Krishna Kumar and Ms. Vanitha have received the notice, and the notice sent to the applicant is returned un served, however an intimation was also attempted. As there was an intimation left, the applicant has not acted upon it which amounts to deemed service. Even otherwise his wife has received the notice, who is aware of the measures taken under the Act.

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5.8 The bank as per the procedure has published the Section 13(4) possession notice in two News Papers one in English Newspaper “Hindu” and in Dhinamani Tamil Newspaper. The possession notice is also affixed on the property. In spite of the service of the notices to the borrower and guarantor, as they did not liquidate the liability, the bank proceeded further and issued the Sale Notice on 10/10/2019 which was also sent by

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RPAD and same is received. The notice send to the company is received, However the sale has not taken place.

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5.9 The respondent bank had filed application under Section 14 before the Chief Magistrate along with the affidavit as required under the Section 14, along with the documents in support of the measures taken. it is seen in the affidavit that the respondent has complied with all the provisions of the Act as per Section 14 (i) to (ix) which are as under:

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(i) The aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;

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(ii) The borrower has created security interest over various properties and that the Bank of Financial Institution is holding a valid and subsiding security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period;

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(iii) The borrower has created security interest over various properties giving the details of the properties referred to in subclause (ii) above;

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(iv) The borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;

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(v) Consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non-performing asset;

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(vi) Affirming that the period of sixty days notice as required by the provisions of sub-section of section 13, demanding payment of

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the defaulted financial assistance has been served on the borrower;

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(vii) The objections or representation in reply to the notice received from the borrower has been considered by the secured creditor and reason for non-acceptance of such objection or representation had been communicated to the borrower;

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(viii) The borrower had not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub section (4) of section 13 read with section 14 of the principal act,

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(ix) That the provisions of this Act and the rules made thereunder had been compiled with:

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The Hon‟ble CJM after consideration of the application, affidavit and the documents produced has allowed the application directing to take physical possession of the property. Further it is seen that the bank after classifying the account as NPA on 13/09/2018 has initiated measures under SARFAESI Act and have issued notice under Section 13(2) Demand Notice demanding the outstanding amount due within the period of 60 Days.

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5.10 Although the Applicant has challenged Section 14 order has failed to make out a case for the interference of this Tribunal nor has established the violation of the measures taken by the bank under the Section 13(2) or under S.13[4] or any violation in Section 14 application

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Even otherwise as per Section 14(3) of the Act, no act of the Chief Metropolitan Magistrate or the District Magistrate (any officer authorized by the Chief Metropolitan Magistrate or District Magistrate) done in pursuance of this section shall be called in question in any court or before any authority.

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5.11 Upon examination of the facts, documents produced by both the parties, the Applicant has failed to point out any illegalities in the Section 14 order.

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5.12 On the other hand, the Bank has established with supporting documents that they have followed the procedures in initiating the measures right after classification of the account as NPA, issuance of S.13[2] demand notice dated 06.10.2018 and S.13[4] dated 04.1.2019 and in filing an application under S.14 of the act.

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5.13 For the foregoing reasons, the Tribunal comes to inevitable conclusion that the respondent as secured creditor has followed all the measures as prescribed under the Act and Rules made thereunder without any irregularity. The notices issued under S.13[2] demand notice dated 06.10.2018 and S.13[4] dated 04.1.2019 are held as valid notices under the Act.

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Resultantly, the present SA fails, and there is no requirement of interference of this trial in Section 14 order. Accordingly SA stands dismissed.

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Interim Order granted, if any stands vacated, pending IAs are disposed of in terms of this final order. No order as to cost.

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Sd/(S.V.GOWRAMMA) PRESIDING OFFICER, DRT-III, CHENNAI

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(Dictated to Steno (Mogesh), transcribed by him, corrected, signed and pronounced by me on this the 27^th day of March, 2025)

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ANNEXURES

LIST OF DOCUMENTS PRODUCED BY THE APPLICANT

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Sl. No.	Description of Documents	Page No.
1.	Application filed under Section 17(1) of the SARFAESI Act, 2002. 12.08.2023	A-1
2.	Petition filed by the Defendant Bank u/s.14 of the SARFAESI Act, 2002. 20.02.2020	A-2
3.	Impugned Order in Crl.M.P. No.36/2023, passed by the Learned CJM, Mayiladuthurai, u/s.14 of the SARFAESI Act, 2002. 08.08.2023	A-3
4.	Memorandum of Deposit of Title Deed executed by the applicant to the defendant bank (Erstwhile Andhra Bank), vide Doc. No.318/2017, Jt-I, SRO, Mayiladuthurai (certified copy) 07.03.2017	A-4
5.	Vakalat	A-5

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LIST OF DOCUMENTS PRODUCED BY THE RESPONDNET

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Sl. No.	Description of Documents	Page No.
1.	Sanction Letter issued by the Defendant Bank to the applicant 07.03.2017	R-1
2.	MOD execute in favour of the bank in Doc. No.318/2017 SRO-Mayiladuthurai 07.03.2017	R-2
3.	Section 13(2) demand notice issued by the defendant bank to the applicant and acknowledged by the applicant and guarantor and applicant left India endorsement 06.10.2018	R-3
4.	Section 13(4) possession Notice issued by the defendant bank to the applicant and acknowledged by the applicant and guarantor 04.01.2019	R-4
5.	Affixing the Possession Notice on the wall of the property with photo	R-5
6.	Paper publication in Indian Express and Dinamani 10.01.2019	R-6
7.	First sale notice (30) days issued by the defendant bank to the applicant and acknowledged by the applicant and guarantor 10.10.2019	R-7
8.	Affidavit filed by the Defendant Bank before Chief Judicial Magistrate at Nagapattinam in Crl.M.P. 36 of 2020 20.02.2020	R-8

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9.	Police complaint given by the Bank with translation 08.07.2021	R-9
10.	Second sale notice issued by the Defendant bank to the applicant and acknowledged by the applicant and guarantor 24.01.2022	R-10
11.	Affixing the sale notice on the wall of the property with photo	R-11
12.	Paper publication effected in Dinamani and Indian Express 30.01.2022	R-12
13.	CERSAI Registration Certificate Identify No.188130100021356	R-13

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SCHEDULE OF PROPERTY

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Residential Land in Nagapattinam District, Mayiladuthurai Registration District, Mayiladuthurai No.1 Joint Sub-Registry, Mayiladuthurai Town, Ward No.7, Block No.7, Poombukar Salai, on the Southern Side, Town Survey No.42/1 (Old Survey No.42), Manai with a total extent of 6724 Sq.ft., in this the Eastern portion with an extent of 326.04 Sq. Mtr., or 3510 Sq.ft. of land with the following boundaries:

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South of Poombukar Salai

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North of Manai Belonging to Viswanathan Koil

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East of Manai Belonging to B. Sathiya

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West of Manai Belonging to Bakiyam

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This property belongs to Applicant, dated at Chennai on the 12^th day of August 2023.

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Sd/(S.V. GOWRAMMA) PRESIDING OFFICER,

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DRT-III, CHENNAI

V Tamilselvan v. Union Bank of India (Andhra Bank)

Case brief

What is this about?

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V Tamilselvan v. Union Bank of India (Andhra Bank)

Case brief

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What did the court decide?

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