Dismissed

Mahinkutty Mohemmadali v. Axis Bank

DRT7 May 2025SA/730/2024

Case brief

AI extract

What is this about?

Applicants challenged possession action and seal removal by Axis Bank under SARFAESI Act. The Tribunal rejected claims of unidentifiable property boundaries, noting the mortgage deposit of title deeds confirmed the scope of security. Applicant's failure to prove statutory defects resulted in dismissal.

What did the court decide?

Application for setting aside possession order and removing seals is dismissed. No order as to costs.

Mahinkutty Mohemmadali versus Axis Bank — Banking and Recovery | 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 7^th DAY OF MAY, 2025

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

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S.A No.730 of 2024

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Between

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Mahinkutty Mohemadali, Karothukudy House,

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Allapra P.O., Vengola, Perumbavoor, Ernakulam Pin – 683 553.

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Laila Mahinkutty,

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W/o. Mahinkutty Mohemadali, Karothukudy House,

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Allapra P.O., Vengola, Perumbavoor, Ernakulam Pin – 683 553.

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--- Applicants

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And

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The Authorized Officer Axis bank Ltd., Retail Asset Centre, 5^th Floor, Chicago Plaza, Rajaji Road, Ernakulam-682035.

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--- Defendant

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This Securitization Application coming on 04.04.2025 for final hearing before me in the presence of Mr. Paul Kuriakose, Counsel appearing for the Applicants and Mr. G. Viswanathan, Counsel 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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SA No.730 of 2024

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O R D E R

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This Securitisation Application was filed on 25.09.2024 seeking to set aside Annexure-10 Order and Annexure-15 Order and to declare that the action of taking possession and dispossessing the applicants and their family from the schedule 2 property is illegal and to direct the defendant bank to remove the seal put on the gate and doors of the residential building and to direct the defendant to pay the cost of the proceedings.

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The applicants have not fairly conceded in the SA with regard to availment of credit facilities from the defendant bank upon creation of equitable mortgage over the immovable property. However, the averments of the defendant in the written statement and Annexure-D1 sanction letter which has been acknowledged by the applicants proves the contention of the defendant that the applicants availed term loan for a tune of Rs.70,37,495/-.

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The applicants have produced Annexure-A2 copy of settlement deed stating that immovable property admeasuring an extent of 20.48 Ares in Re. Sy. No.1/2011 situated in Perumbavoor and another item admeasuring an extent of 3.65 Ares consisting of residential building, contiguously were assigned to the 1^st applicant by his father. Annexure-D2 which is declaration cum confirmation deed dated 17.01.2015 has been executed by the 1^st applicant in favour of the defendant bank evidencing the deposit of title deeds pertaining to the aforesaid properties as the collateral security for the availment of the aforesaid credit facility. In paragraph 1 of Annexure-D2, the 1^st applicant has stated as follows :

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“The mortgagor is seized and possessed of or otherwise well and sufficiently entitled to the said property more particularly described in the first schedule and second schedule hereunder detailed together with all buildings and structures thereon, all plant and machinery attached to the earth (hereinafter referred to as the mortgaged property).

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The Taluk Surveyor, Kunnathunadu has stated in his report, Annexure-A8 which was submitted before the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam as follows :

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“Though the first schedule property clearly states the boundaries, the description of four boundaries of schedule-2 are the first schedule properties. Therefore, the second schedule property can be at anywhere within the first and second schedule properties. Therefore, it is submitted that, it is not

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Page 2 of 6

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SA No.730 of 2024

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possible to demarcate and identify the first item property excluding the second schedule property.”

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It is not the contention of the applicants that Annexure-A1 settlement deed is not pertaining to the aforesaid both items of the properties which are referred to in Annexure-A8 report. Annexure-A4 tax receipt and Annexure-A5 possession certificate refers to the mortgaged property and the residential building. This Tribunal finds considerable force in the contention of the defendant that there is no separate title deed for schedule-2 property and that for both scheduled properties, there is only one parent deed which is the settlement deed Annexure-A2.

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It is the contention of the defendant bank that at the time of creation of mortgage, the applicants produced the following documents :

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i) Sale Deed No.3475 dated 04.08.1999 of Perumbavoor SRO. ii) Encumbrance certificate (Annexure-D4)

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iii) Location sketch (Annexure-D5)

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iv) Possession notice (Annexure-D6)

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v) Approved building plan (Annexure-D7)

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vi) Building tax receipt (Annexure-D8)

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A perusal of the aforesaid documents strengthens the above contention of the defendant that the properties mortgaged with the defendant bank are both items of the properties pertaining to Annexure-A2 settlement deed. The applicants having deposited the title deeds pertaining to the secured assets are not entitled to contend now that the properties are not identifiable and that the boundaries cannot be demarcated. Therefore, the contentions of the applicants in the S.A that it is not possible to identify and demarcate the first item property excluding the second item property which comprises the residential house is absolutely baseless and incorrect.

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According to the defendant, since the applicants defaulted in repayment of the outstanding loan due, the loan account came to be classified as NPA and Annexure-A1 demand notice was issued to the applicant calling upon them to repay the outstanding loan due within 60 days from receipt of the notice. Indisputably, the applicants neither sent any objection/representation to the demand notice nor did they clear of their liability towards the outstanding loan due.

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The defendant approached the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam and filed Annexure-A9 application and affidavit u/s 14 (1) of the SARFAESI Act 2002. Annexure-A10 order came to be passed in MC No.447/2018 appointing Advocate Commissioner to take physical possession of the

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Page 3 of 6

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SA No.730 of 2024

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secured asset. The Advocate Commissioner issued notice dated 25.1.2022 to the applicants informing them he would take physical possession of the secured asset. The 1^st applicant filed petition CMP No.446/2022, Annexure-A11 before the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam praying to refrain the Advocate Commissioner from executing the order of taking physical possession of the secured asset. Annexure-A12 order was passed dismissing the above petition.

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It is seen from the perusal of interim report Annexure-A13 filed by the Advocate Commissioner before the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam that he inspected the secured asset along with Taluk Surveyor and that after measuring the property and demarcating the boundaries fixed by the Surveyor submitted the report that it was not an easy task for him to vacate the respondent and prepare inventory since the respondent did not cooperate.

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It is not the contention of the applicants in the SA that the statutory requirements contemplated under Clause (i) to (ix) to the provisions of Section 14 (1) of the SARFAESI Act 2002 were not complied with by the defendant in respect of filing of Annexure-A5 application and affidavit. It is also not the contention of the applicant that the learned Additional Chief Judicial Magistrate (MPs/MLAs), Ernakulam passed order without having satisfied over the contents of the affidavit and the documents produced in support of the affidavit.

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The applicants have failed to prove their case so as to get the reliefs sought for in the SA. In view of the foregoing reasons, this Tribunal holds that the applicants are not entitled to get the reliefs sought for in this SA.

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Resultantly, S.A No.730 of 2024 stands dismissed. However, there shall be no order as to costs.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the open court on this the 7^th day of May, 2025.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 4 of 6

SA No.730 of 2024

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

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Sl. No.	Date	Particulars
1.	27.06.2017	True copy of Sec.13 (2) demand notice	Annexure-1
2.	04.08.1999	True copy of the settlement deed No.3475/1999 of SRO Perumbavoor alongwith Englishtranslation.	Annexure-2
3.	---	True copy of the Thandapper register evidencing mutation of 3.65 Ares (9 cents) property in deed No.3475/1999 alongwith Englishtranslation.	Annexure-3
4.	09.10.2017	True copy of the tax receipt in respect of 3.65 Ares (9 cents) property in deed No.3475/1999 along with English translation.	Annexure-4
5.	12.10.2017	True copy of possession certificate in respect of3.65Ares (9 cents)	Annexure-5
6.	04.01.2019	True copy of the order in S.A. No.481 of 2018 byDRT-1 Ernakulam.	Annexure-6
7.	25.01.2022	True copy of the Advocate Commissioner notice.	Annexure-7
8.	09.02.2023	True copy of the survey report by the Taluk Surveyor, Kunnathunad along with Englishtranslation.	Annexure-8
9.	---	True copy of MC No.447/2018 along with affidavit of Chief Judicial Magistrate Court,Ernakulam.	Annexure-9
10.	01.11.2018	True copy of the order in MC No.447 of 2018 on the file of Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam.	Annexure-10
11.	---	True copy of CMP No.446/2022 in MC No.447/2018.	Annexure-11
12.	11,03.2022	True copy of the order in CMP No.446/2022 in MC No.447/2018 of Additional Chief Judicial Magistrate Court (MPs/MLAs)Ernakulam	Annexure-12
13.	13.08.2024	True copy of the report of the Advocate Commissioner in MCNo.447/2018	Annexure-13
14.	21.08.2024	True copy of the proceedings in MC No.447/2018 of the Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam	Annexure-14

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Page 5 of 6

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SA No.730 of 2024

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15.	09.09.2024	True copy of the proceedings in MC No.447/2018 of the Additional Chief Judicial Magistrate Court (MPs/MLAs) Ernakulam appeared in the e-court portal.	Annexure-15
16.	16.11.2024	True copy of the Commission Report filed by the Advocate Commissioner in MCNo.447/2018.	Annexure-16
17.	---	True copy of the letter No.S2-2717/24 issued by the Tahsildar (Land Records) to the1^st petitioner/applicant.	Annexure-17
18.	---	True English translation of Annexure-17 letter.	Annexure-18

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

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Sl. No.	Date	Particulars
1.	14.01.2025	True copy of the loan sanction letter duly acknowledged by the applicant along with Laila Mahinkutty as co- applicant.	Annexure-D1
2.	17.01.2015	True copy of declaration-cum- confirmation deed evidencing deposit of title deedsalongwithotherdocuments	Annexure-D2
3.	26.12.2014	True copy of valuation report from Engineers &ValuationChambers.	Annexure-D3
4.	11.11.2013	True copy of encumbrance certificate	Annexure-D4
5.	13.01.2012	True copy of location sketch No.182/2012and182/2012 (A)	Annexure-D5
6.	15.01.2014	True copy of possession certificate No.132/2014	Annexure-D6
7.	---	True copy of approved building plan.	Annexure-D7
8.	11.11.2014	True copy of the building tax receipt No.2903582.	Annexure-D8

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 6 of 6

Mahinkutty Mohemmadali v. Axis Bank

Case brief

What is this about?

What did the court decide?

Mahinkutty Mohemmadali v. Axis Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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