Dismissed

Asil Mohammed v. Federal Bank

DRT30 Jan 2025SA/530/2024

Case brief

AI extract

What is this about?

The Tribunal dismissed Securitisation Application No.530 of 2024 filed by Asil Mohammed against Federal Bank Ltd., holding it not maintainable. The court ruled that issues previously raised in a dismissed appeal cannot be re-agitated due to catalyst findings and lack of specific procedural irregularity details.

What did the court decide?

No order as to costs.

Asil Mohammed versus Federal Bank — Company and Corporate | DRT (2025)

¶1

Fair Order

¶2

IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

¶3

DATED THIS 30^th DAY OF JANUARY, 2025

¶4

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

¶5

S.A No. 530 of 2024

¶6

Between

¶7

Asil Mohammed, S/o. Aboobacker, Parassery Veedu, Vaikkathoor, Valancheri P.O., Kattipparuthi, Valancheri, Malappuram -676 552.

¶8

--- Applicant

¶9

And

¶10

Federal Bank Ltd. Represented by the Authorized Officer, First Floor, Federal Towers, Arayidathupalam, Kozhikode – 673 016.

¶11

--- Defendant

¶12

This Securitization Application coming on 08.11.2024, 28.11.2024 and 10.12.2024 for final hearing before me in the presence of Mr. Bijumon E.A., Counsel appearing for the Applicant and Mr. Santhosh Kumar K., 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:

¶13

SA No.530 of 2024

¶14

O R D E R

¶15

This Securitisation Application was filed on 23.07.2024 seeking to set aside Annexure-A3, A5 and A6 and also direct the defendant bank to keep in abeyance the securitization proceedings against the property till loan accounts are regularized and to declare that the paper publication in Deepika Newspaper, which is in vernacular language, is not enough as it does not have wide circulation and to direct the defendant bank to produce the entire loan related documents and award costs of the proceedings to the applicant and to direct the defendant to reverse the expenses incurred.

¶16

Before proceeding to discuss the pleadings put forth by both the parties to the SA, it is just and necessary to decide the issue as to whether this SA is maintainable in view of the order passed by this Tribunal in SA No.126/2022 filed by the applicant. This issue has been raised by the defendant bank in its written statement.

¶17

The applicant filed SA No.126/2022 against the defendant bank herein seeking to declare Annexure-A1 Demand Notice and A2 proceedings [Section 13 (12) of the SARFAESI Act 2002 r/w Rule 3 of the Security Interest (Enforcement) Rules 2002] and Annexure-A3 notice dated 07.12.2022 issued by the Advocate Commissioner as invalid.

¶18

After hearing both sides’ counsels of the parties to that S.A, this Tribunal passed order dismissing the SA No.126/2022 on 04.01.2024. In the above S.A, various contentions raised by the applicant with regard to non-service of Demand Notice to him and other parties to the loan transaction, non-publication of the Demand Notice, nonmention of classification of loan account as NPA in the Demand Notice, non-service of possession notice to all parties to the loan transaction, violation of Rule 8 (1) of the Security Interest (Enforcement) Rules 2002 in respect of issuance of possession notice, non-credit of payment made by the applicant to his loan account were rejected by this Tribunal.

¶19

The applicant had also sought for the following reliefs in SA No.126/2022 : To direct the defendant bank to produce the decision taken on the request made by the applicant; to direct the defendant bank to take proper and accurate valuation of the property; to direct the defendant bank to produce the detailed statement of account; to declare the entire proceedings initiated by the defendant bank under the SARFAESI Act as illegal and against law; to award cost of the proceedings. The aforesaid reliefs were also not granted by this Tribunal in the final order passed in SA No.126/2022. Therefore, this Tribunal holds that the above issues raised and the reliefs sought for

¶20

Page 2 of 6

¶21

SA No.530 of 2024

¶22

in the present S.A need not be considered in view of the dismissal of SA No.126/2022.

¶23

With regard to the challenge in respect of Annexure-A3 notice dated 07.12.2022 issued by the Advocate Commissioner for taking physical possession of the secured asset, this Tribunal in its final order dated 04.01.2024 passed in SA No.126/2022 (copy of the order is produced along with this S.A as Annexure-A1) has observed as follows :

¶24

“It is also not the case of the applicant that affidavit filed by the defendant under Section 14 of the SARFAESI Act 2002 before the Chief Judicial Magistrate Court Manjeri in CMP No. 2253/2022 is not inconsonance with the mandatory requirements contemplated under the proviso (i) to (ix) to the proviso of Section 14 (1) of the SARFAESI Act, 2002 and that the order passed in CMP No. 2253/2022 suffers from any infirmity or procedural irregularity. The applicant has not produced the copies of the affidavit filed in CMP No. 2253/2022 and also the copy of the order passed therein. Annexure-A3 notice cannot be challenged in any manner without challenging the aforesaid aspects.”

¶25

Therefore, it appears that the applicant has filed the present SA along with copy of the application and copy of affidavit filed in CMP No.2253/2022 before the Chief Judicial Magistrate Court Manjeri and also copy of the order passed by the learned Chief Judicial Magistrate Manjeri in CMP No.2253/2022 as Annexure-A3 to A5 respectively. Annexure-A3 notice which was filed in SA No.126/2022 has now been filed in this present SA as Annexure-A6.

¶26

The applicant having failed to produce the copies of the application, affidavit and order pertaining to CMP No.2253/2022 on the file of the Chief Judicial Magistrate Court Manjeri is not entitled to raise any contention in respect of the aforesaid measures for the mere reason that the aforesaid documents were omitted to be filed in SA No.126/2022, since this Tribunal has given categorical finding in its order dated 04.01.2024 in SA No.126/2022 that Annexure-A3 notice cannot be challenged in any manner without challenging the aforesaid aspects. The above observation of this Tribunal does not mean that the applicant is entitled to raise the issue with regard to Annexure-A3, A4 and A5 by filing the present S.A. Hence this Tribunal holds that on the aforesaid grounds, this S.A is not maintainable.

¶27

Even assuming for argument’s sake without admitting that the SA is maintainable as submitted by the counsel appearing for the applicant, the only contention raised by the applicant in the SA is that the requirements contemplated under Clause (i) to (ix) to the proviso

¶28

Page 3 of 6

¶29

SA No.530 of 2024

¶30

of Section 14 (1) of the SARFAESI Act, 2002 and that the order passed in CMP No.2253/2022 suffers from procedural irregularity. The applicant has not specifically pointed out in the SA as to which requirement was not complied with and as to how the order passed in CMP No. 2253/2022 suffers from any procedural irregularity.

¶31

However, on perusal of Annexure-A4 affidavit shows that the details such as availment of credit facility by the applicant as the principal borrower and other co-borrowers from the defendant bank upon creation of security interest over the applicant’s immovable property, default in repayment of the outstanding loan due, classification of the loan account as NPA on 17.05.2021, issuance of Demand Notice dated 12.07.2021 to the applicant and other coborrowers, service of Demand Notice to the applicant and other coborrowers, non-submission of objection/representation to the Demand Notice, failure of the applicant and other co-borrowers to settle the liability, issuance of possession notice, the aggregate amount of financial assistance granted and the outstanding amount on the date of filing of the application and affidavit, registration of security interest with CERSAI, are clearly furnished.

¶32

A perusal of Annexure-A5 order shows that the learned Chief Judicial Magistrate Manjeri after having perused the contents of the affidavit and having satisfied with regard to compliance of requirements, passed order appointing Advocate Commissioner to take physical possession of the secured asset. Therefore, this Tribunal does not find any procedural irregularity in respect of filing of Annexure-A4 affidavit and Annexure-A5 order.

¶33

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

¶34

Resultantly, S.A No.530 of 2024 stands dismissed. However, there shall be no order as to costs.

¶35

Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 30^th day of January, 2025.

¶36

(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 6

SA No.530 of 2024

S C H E D U L E

District : Malappuram Taluk : Tirur Village : Kattipparuthi Re.Sy. No. : 13/4

¶42

Description

¶43

All that forms, part and parcel of land having extent of 25 1/3 cents of land together with residential building bearing number VI/112 of Valanchery Municipality along with improvement in Sy. No.13/4 situated at Kattipparuthy Village, Tirur Taluk, Malappuram District, Kerala State bounded on East by Ohari Paramba in the possession of Nisanadha Sekharan Nair, South by way having 08 feet width, West by Ohari property in the possession of others, North by Ohari Paramba in the possession of Nisanandha Sekharan Nair.

¶44

Four Boundaries (as per sale deed)

¶45

East : Ohari Paramba in the possession of Nisanadha Sekharan Nair. South : By way having 08 feet width. West : Ohari property in the possession others North : Ohari Paramba in the possession of Nisanadha Sekharan Nair.

¶46

(Su. WILLYAHM) PRESIDING OFFICER

¶47

Page 5 of 6

¶48

SA No.530 of 2024

¶49

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

¶50

Sl. No.	Date	Particulars
1.	04.01.2024	True copy of the order in S.A. No.126 of 2022.	Annexure-A1
2.	12.07.2021	True copy of Section 13(2) notice.	Annexure-A2
3.	12.07.2022	True copy of application in CMP No.2253/2022.	Annexure-A3
4.	12.07.2022	True copy of the affidavit filed along withCMP No.2253/2022.	Annexure-A4
5.	11.11.2022	True copy of the order in CMP No.2253/2022 by the Chief Judicial Magistrate CourtManjeri.	Annexure-A5
6.	07.12.2022	True copy of the Advocate Commissioner’snotice.	Annexure-A6

¶51

List of documents filed by the defendant along with the written statement

¶52

Sl. No.	Date	Particulars
1.	14.01.2022	True copy of the Possession Notice.	Annexure-B1
2.	15.01.2022	True copy of the postal receipts.	Annexure-B2
3.	---	True copy of the postal Acknowledgment card of acknowledging Possession Notice.	Annexure-B3
4.	16.01.2022	True copy of the newspaper publications in Madhyamam and SundayExpress.	Annexure-B4

¶53

(Su. WILLYAHM) PRESIDING OFFICER

¶54

Mj/

¶55

Page 6 of 6

Asil Mohammed v. Federal Bank

Case brief

What is this about?

What did the court decide?

Asil Mohammed v. Federal Bank

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Parties & counsel

Coram

Case details

Similar cases

Mani versus Cholamandalam Investment and Finance Company Ltd.

Punjab National Bank versus Shree Ganpati Logistics and Transport

Hdfc Bank Limited versus by Enterprises

ravinder kaur srivastava versus Icici Bank Limited

Shine P Jacob versus South Indian Bank

Canara Bank versus Ayam Studios Private Limited, Rep. by its Directors