Partly allowed

Pratheesh Krishna v. Hinduja Leyland Finance Limited

DRT24 Feb 2025SA/840/2024

Case brief

AI extract

What is this about?

The Debt Recovery Tribunal found procedural irregularity in taking partial physical possession of secured assets without specific description and filing a vague interim report. Consequently, the sale notice for assets where possession was not fully taken was set aside, but measures leading up to partial possession were not quashed.

What did the court decide?

Set aside the sale notice for assets where possession was not taken and direct defendants to return possession of specific properties taken by the Advocate Commissioner.

Pratheesh Krishna versus Hinduja Leyland Finance Limited — Company and Corporate | 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 24^th DAY OF FEBRUARY, 2025

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

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S.A No. 840 of 2024

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Between

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Pratheesh Krishna,

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Aickara House, Tharavad Chandrapura, Manjapra, Ernakulam – 683 581.

¶9

Prasanna Raghunath,

¶10

Aickara House, Tharavad Chandrapura, Manjapra, Ernakulam – 683 581.

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Pranav Nair, Aickara House, Tharavad Chandrapura, Manjapra, Ernakulam – 683 581.

¶12

Priyanka Nair, Aickara House, Tharavad Chandrapura, Manjapra, Ernakulam – 683 581.

¶13

Chenganat Thankappan Nair Ravindran Nair, Aickara House, Sopanam, Chandrapura, Manjapra, Ernakulam – 683 581.

¶14

SA No.840 of 2024

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Aickarayil Thankappan Nair Raghunath, Aickara House, Tharavad Chandrapura, Manjapra,

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Ernakulam – 683 581.

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M/s. Sanjeevani Life Care Village Represented by Managing Partner Reghunath, VI/376, Manjapra South, Manjapra, Ernakulam – 683 581.

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M/s. Sanjeevani Life Care Village Pvt. Ltd., represented by

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Managing Director Reghunath,

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VI/376, Manjapra South,

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Manjapra, Ernakulam – 683 581.

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--- Applicants

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And

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The Hinduja Leyland Finance Ltd. Represented by its Branch Manager, No.89, Ansari Street, Ramnagar, Coimbatore – 641 009.

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The Authorized Officer, Hinduja Leyland Finance Ltd. Corporate Office, 27 A, Developed Estate, Guindy,

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Chennai – 600 032.

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Indian Overseas Bank, C & I C Branch, Represented by its Manager, 98 A, Dr. Radhakrishnan Salai, Mylapore, Chennai -600 004.

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--- Defendants

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This Securitization Application coming on 10.02.2025, 11.02.2025, 18.02.2025 and 19.02.2025 for final hearing before me in the presence of Mr. V.K. Peer Mohamed Khan, Counsel appearing for the Applicants and Mr. Raju Joseph, Counsel appearing for the Defendants 1 and 2 and 3^rd Defendant set ex-parte and upon hearing arguments of learned Counsels for all the parties and upon perusing the material on records, this Tribunal delivered the following:

Page 2 of 12

SA No.840 of 2024

O R D E R

This Securitisation Application was filed on 12.11.2024 seeking to set aside Annexure-A7 demand notice, Annexure-A9 application, Annexure-A10 Order of Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam in MC No.473 of 2024 and Annexure-A11 notice of Advocate Commissioner and all proceedings in taking possession of the properties scheduled therein and to order restricting the defendant NBFC from evicting the applicants from the scheduled properties and to direct the defendants to produce true and correct statement of accounts relating to the loan in question and to direct the 3^rd defendant to produce the alleged agreement entered into between defendants 1 and 2 regarding Pool buyout of credit facilities and to declare that the defendant bank is not entitled to proceed under SARFAESI Act against the applicants and its properties and to set aside Annexure-A13 report and to direct the defendants 1 and 2 to return the possession of the properties to the applicants and also restricting from proceeding further against the properties of the applicants and to set aside Annexure-A14 notice of sale issued by defendants 1 and 2 and to set aside Annexure-A16 sale notice for the sale to be held on 24.02.2025 issued against the properties of the applicants as scheduled to the notice and allow the cost of this proceedings.

¶34

There is no dispute with regard to availment of credit facility of Rs.2,00,00,000/- (Rupees Two Crores only) by the 1^st applicant along with applicants 2 to 8 as co-borrowers and also availment of credit facility of Rs.8,67,00,000/- in the name of the 7^th applicant. But the averment of the applicants in the SA that the loan against the property was sanctioned in the name of the applicants for the purpose of additional finance for the project being implemented by the 7^th applicant is refuted by the defendants 1 and 2 in their written statement. According to them, a sum of Rs.2,00,00,000/- was sanctioned to the 1st applicant only based on his request. Be that it may so, what has to be considered is as to whether the 1^st applicant and the 7^th applicant availed the aforesaid credit facilities and not as to what purpose the aforesaid credit facilities were availed by them.

¶35

The applicants have mentioned in para 2 (a) to para 2 (e) about the immovable properties possessed by the applicants 1, 2, 5 and 6. It is not in dispute that the aforesaid properties have been secured by way of creation of mortgage by deposit of title deeds for the availment of the aforesaid credit facilities, in favour of the 1^st defendant finance company.

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Page 3 of 12

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SA No.840 of 2024

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The applicants have averred in the SA that the requirement of the applicants for the smooth completion of the project was upto Rs.20 Crores and the same was not considered by the defendants 1 and 2 at the time of sanctioning the credit facilities. This averment is stoutly refuted by the defendants 1 and 2 in their written statement. According to them, the loan was sanctioned as per the eligibility of the applicants. No material has been placed by the applicants before this Tribunal in order to prove their contention that, for smooth completion of the project, sanctioning of a sum of Rs.20 Crore was not considered by the defendants 1 and 2.

¶39

The counsel appearing for the applicants submitted that the 1^st defendant Finance Company classified the loan account as NPA without re-structuring the process under MSMED Act, since 7^th applicant is an MSME unit coming under the MSMED Act. Per contra, the counsel appearing for the defendants 1 and 2 submitted that the loan account of the applicants was classified as NPA on 06.03.2023 as per RBI guidelines since they failed to pay even a single EMI after availment of the credit facilities.

¶40

According to the defendants 1 and 2, Annexure-A7 demand notice dated 05.09.2023 was issued to all the applicants. But the contention of the applicants is that demand notice was not properly served to all the borrowers/co-borrowers especially to the 4^th applicant, who had been abroad at the relevant time and also to the 5^th applicant. The defendants have averred in their written statement that demand notice was received by all the applicants. Annexure-D1 series which are copies of acknowledgment cards and Annexure-D2 series which are copies of postal receipts produced by the defendants 1 and 2 substantiates the above averment of the defendants 1 and 2 that demand notice was served to all the applicants. Be that it may so, in Annexure-A8 written objection dated 15.11.2023, which is said to have been sent by the applicants to the 2^nd defendant, there is a clear admission of receipt of demand notice by all the parties.

¶41

The applicants have not produced any substantiating material before this Tribunal to show that the applicants are entitled for the benefit of re-structuring process under MSMED Act and that the 7^th applicant is an MSME unit coming under the MSMED Act. AnnexureA8 is the objection which is said to have been sent by the 7^th applicant to the 2^nd defendant. But no proof has been produced by the applicants to show that Annexure-A8 objection was sent to the 2^nd defendant and that it was received by the 2^nd defendant. The defendants 1 and 2 have categorically averred in Annexure-A9 application and affidavit filed in MC No.473/2024 of Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam that the respondents (the applicants herein) did not send objection to the

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Page 4 of 12

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SA No.840 of 2024

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demand notice. Hence this Tribunal is unable to accept the contention of the applicants that for the objection, Annexure-A8, no reply was sent by the 2^nd defendant.

¶45

The defendants 1 and 2 have produced Annexure-D3 and D4 copies of paper publications in order to prove their contention that possession notice was published in The Indian Express edition dated 07.12.2024 and Mangalam edition dated 07.12.2024.

¶46

The defendants 1 and 2 approached the Chief Judicial Magistrate Court, Ernakulam and filed application and affidavit Annexure-A9 under Section 14 (1) of the SARFAESI Act, 2002. The matter was subsequently made over to the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam. Annexure-A10 Order dated 22.07.2024 came to be passed in M.C. No.473/2024 appointing Advocate Commissioner for taking physical possession of the secured assets. The Advocate Commissioner issued Annexure-A11 notice dated 13.08.2024 to the applicants informing them that he would take physical possession of the petition scheduled assets after the expiry of 14 days from the date of service of notice, if they failed to surrender the property. The applicants having aggrieved against the above measures, filed this SA seeking the reliefs stated supra.

¶47

A perusal of Annexure-A9 application and affidavit filed in MC No.473/2024 shows that all the details contemplated under Clause (i) to (ix) to the provisions of Section 14 (1) of the SARFAESI Act 2002 were furnished.

¶48

Annexure-A13 is the interim report along with inventory list and panchanama submitted by the Advocate Commissioner to the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam on 21.12.2024. Along with interim report, survey sketches and location sketches had also been filed.

¶49

The counsel appearing for the applicants submitted that the Advocate Commissioner did not complete the proceedings of taking physical possession of the secured assets and that the report, inventory list and the panchanama were not signed by the Advocate Commissioner and that inventory list and panchanama were not prepared as per the Rule 4 (1) and Rule 4 (2) of the Security Interest (Enforcement) Rules 2002 and that sketch prepared by the Surveyor was not produced along with the interim report. According to the counsel for the applicants the Advocate Commissioner has stated in the interim report that only a portion of the property had been taken possession. Copies of the inventory list and panchanama were not served to them. The defendants 1 and 2 in their haste issued notice of sale Annexure-A16 in order to bring the secured assets for sale. Since entire secured assets has not been taken physical possession,

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Page 5 of 12

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SA No.840 of 2024

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issuance of Annexure-A16 sale notice to bring all the items of the secured assets for sale is illegal. Therefore, the applicants are entitled to get the reliefs sought for in the S.A.

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Per contra , the counsel appearing for the defendants 1 and 2 submitted that the secured assets were identified by the Advocate Commissioner with the help of the Taluk Surveyor and Village Officer and the survey records and that boundaries of the properties were fixed with reference to the title deeds and the survey sketch. According to the counsel for the defendants 1 and 2, the Advocate Commissioner prepared inventory list and panchanama pertaining to the movables found in the secured assets and the applicants refused to sign the inventory list and panchanama. The signatures of the Advocate Commissioner are seen in Annexure-A13. The machineries and equipments in the secured assets are not hypothecated with the defendants 1 and 2, hence the applicants are free to remove the machineries and the equipments.

¶54

In the interim report, inventory list and panchanama AnnexureA13 prepared by the Advocate Commissioner, the signatures of the Advocate Commissioner are seen as rightly pointed out by the counsel for the defendants 1 and 2. Therefore, the submission of the counsel for the applicants that interim report, inventory list and panchanama were not signed by the Advocate Commissioner is incorrect.

¶55

In Annexure-A13 interim report, the Advocate Commissioner has stated that, at the time of preparation of the inventory list, the respondents were present and that they refused to sign the inventory list prepared by him and that he took video of each and every movable. It is seen from his report that the pen drive containing the videos was also submitted by him before the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam.

¶56

Rule 4 (1) and Rule 4 (2) of the Security Interest (Enforcement) Rules 2002 mandates the Authorized Officer of the secured creditor to prepare panchanama and inventory list pertaining to the movable which physical possession is to be taken by him. In the present case at hand, the properties which were sought for physically taken by the Advocate Commissioner are immovable properties which are secured assets. Direction had been given only to the Advocate Commissioner by the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam in MC 473/2024 to take physical possession of the secured asset. Such direction was not given by the Authorized Officer who is the 2^nd defendant herein. Therefore, the 2^nd defendant did not have any role to play in respect of taking physical possession of the secured assets and also preparation of panchanama and inventory list. Hence this Tribunal does not find any substance in the submission of the counsel for the applicants that the 2^nd defendant

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Page 6 of 12

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SA No.840 of 2024

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failed to prepare panchanama and inventory list pertaining to the equipments and machineries kept in the secured assets. In any event, the Advocate Commissioner has prepared the panchanama and inventory list and produced the same before the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam.

¶60

Now the issue which arises for consideration is, as to whether physical possession of all the items of the secured assets as mentioned in Annexure-A9 application and affidavit has been taken by the Advocate Commissioner or not. In Annexure-A9 application, seven items of secured assets with description and boundaries has been furnished. Annexure-A10 order was passed for taking physical possession of the secured assets which is described in the schedule to the petition. But a perusal of the contents of Annexure-A13 interim report filed by the Advocate Commissioner shows that, he took only partial possession of the petition scheduled property. It is also stated in the interim report that, he took possession of the five buildings, which are situated within the compound wall of the Sanjeevani Life Care Village (7^th applicant herein). Therefore, it is evident that the Advocate Commissioner did not take possession of all the seven items of the secured assets as set out in the schedule to the application Annexure-A9 and there is also no exact description of the properties of which physical possession has been taken by him.

¶61

In the above said circumstances, the next issue which arises for consideration is, as to whether Annexure-A16 sale notice which has been issued for sale of the aforesaid seven items of the properties is legally valid or not. In Annexure-A13 interim report, the Advocate Commissioner has not specifically mentioned as to physical possession of which items of the secured assets had been taken. He has merely mentioned that physical possession of five buildings situated within the compound wall of the 7^th applicant had been taken. However, in Annexure-A17, which is copy of the proceedings dated 14.01.2025 of the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam, it is mentioned as follows :

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“Petitioner represented. Commissioner represented. Interim report filed. Affidavit filed stating that possession of the secured asset has already been taken and M.C. may be closed. In view of the affidavit, MC is dismissed.”

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The above order of the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam shows that, it was passed without perusing the interim report, Annexure-A13 wherein it has been stated that only physical possession of the five buildings will be taken and that partial possession of the properties alone has been taken.

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Page 7 of 12

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SA No.840 of 2024

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The applicants have contended in the amended SA that, the provisions of Section 8 (6) of the Security Interest (Enforcement) Rules 2002 was not complied with in respect of issuance of Annexure-A16 sale notice and that reserve price fixed for the property is below the market value and the guideline value and that the description of the property is incorrect and that sale notice was not affixed on the secured assets and that it was not published in two leading newspapers having sufficient circulation in that locality and that therefore, Annexure-A16 sale notice is liable to be set aside.

¶67

The defendants 1 and 2 have not produced any proof to show that Annexure-A16 sale notice was served to all the applicants and that it was conspicuously affixed on the secured assets and that it was published in newspapers having vide circulation in that locality. Be that it may so, once it is established that symbolic or physical possession of all the secured assets as set out in the schedule to Annexure-A16 sale notice was not taken, sale of the secured assets of which physical possession had not been taken by issuing AnnexureA16 sale notice is per se illegal.

¶68

It is pertinent to mention herein that the Advocate Commissioner failed to specifically mention in Annexure-A13 interim report as to which physical possession of secured assets had been taken and as to which physical possession of the secured assets had not been taken. Therefore, this Tribunal does not hesitate to come to a conclusion that Annexure-A13 interim report is a vague and incomplete report on which no reliance can be placed.

¶69

Though this Tribunal has found that Annexure-A9 application and affidavit filed in MC No.473/2024 had been in compliance with the requirements contemplated under Clause (i) to (ix) to the provisions of Section 14 (1) of the SARFAESI Act 2002 and also there is no infirmity or procedural irregularity in Annexure-A10 order passed in MC No.473/2024, this Tribunal notices infirmity and procedural irregularity in respect of taking partial physical possession of the secured assets without specifying its description and details and filing of incomplete interim report, Annexure-A13 by the Advocate Commissioner. Further, the learned Additional Chief Judicial Magistrate (MPs/MLAs), Ernakulam without verifying the above aspects, passed Annexure-A17 order as if possession of all the secured assets was taken by the Advocate Commissioner. Therefore, this Tribunal holds that the whole exercise culminated in taking partial possession of the secured assets is liable to be set aside. Therefore, this Tribunal holds that the applicants are entitled to return of possession of the properties taken by the Advocate Commissioner.

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Page 8 of 12

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SA No.840 of 2024

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The applicants have not averred in the S.A as to what relief is sought for against the 3^rd defendant, which is Indian Overseas Bank, represented by its Manager, situated in 98 A, Dr. D. Radhakrishnan Salai, Mylapore, Chennai -600 004. Hence SA is dismissed as against 3^rd defendant.

¶73

This Tribunal has found that there is no procedural irregularity in respect of issuance of Annexure-A7 demand notice and AnnexureA9 affidavit is in compliance with the statutory requirements contemplated under Clause (i) to (ix) to the provisions of Section 14 (1) of the SARFAESI Act 2002 and that there is no infirmity or procedural irregularity in Annexure-A10 order passed appointing Advocate Commissioner for taking physical possession of the secured assets. Therefore, the applicants are not entitled to get the reliefs sought for in respect of the aforesaid measures.

¶74

The other reliefs sought for by the applicants in the SA are to direct the defendants 1 and 2 to produce the true and correct statement of accounts pertaining to the loan accounts of the applicants and to produce the alleged agreement entered into between the defendants 1 and 2. These reliefs does not fall under the measures of Section 13 (4) of the SARFAESI Act 2002. It is for the applicants to approach the defendants 1 and 2 to get these documents. Hence, such reliefs cannot be granted by this Tribunal.

¶75

In view of the foregoing reasons and discussions, this Tribunal holds SA No.840 of 2024 stands partially allowed in respect of the reliefs for setting aside Annexure-A13 interim report and order directing the defendants 1 and 2 to return the possession of the properties of which physical possession has been taken and also the relief for setting aside Annexure-A16 sale notice.

¶76

The defendants 1 and 2 are directed to return the possession of the properties of which physical possession has been taken to the applicants within a period of 15 days from today.

¶77

However, it is made clear that the defendants 1 and 2 are at liberty to approach the Additional Chief Judicial Magistrate Court (MPs/MLAs), Ernakulam for taking physical possession of the secured assets afresh in accordance with law.

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Page 9 of 12

¶79

SA No.840 of 2024

¶80

Resultantly, S.A No.840 of 2024 stands disposed of accordingly. 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 24^th day of February, 2025.

¶82

(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 10 of 12

SA No.840 of 2024

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

¶87

Sl. No.	Date	Particulars
1.	---	True copy of the brochure giving the vision and the facilities by the 7^th applicant.	Annexure-A1
2.	20.02.2023	True copy of the letter issued by HDFC Bank informing proposed blocking of Current Account of applicants from 20.03.2023.	Annexure-A2
3.	04.08.2023	True copy of the letter issued by District industries Centre Ernakulam recommending for CGSS Loan to Lead Manager.	Annexure-A3
4.	10.08.2023	True copy of the CIBIL Report taken by Bankof Baroda.	Annexure-A4
5.	12.06.2023	True copy of 7^thapplicant’s letter to the Chief Vigilance Officer, Indian Overseas Bank.	Annexure-A5
6.	20.06.2023	True copy of the e-mail received from IOB, C&ICBranch, Chennai.	Annexure-A6
7.	05.09.2023	True copy of the Demand Notice	Annexure-A7
8.	15.11.2023	True copy of the written objection submitted by7^th applicant.	Annexure-A8
9.	10.04.2024	True copy of the application and affidavit filed by the defendant as MC No.473/24 inCJMCourt,Ernakulam	Annexure-A9
10.	22.07.2024	True copy of the order of the Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam in MCNo.473/2024.	Annexure-A10
11.	13.08.2024	True copy of the notice issued by the Advocate Commissioner in MC No.473/2024.	Annexure-A11
12.	14.10.2024	True copy of the judgment in WP(C) No.32267/2024 of the Hon’ble High Court of Kerala.	Annexure-A12
13.	21.12.2024	True copy of the interim report filed by the Advocate Commissioner in MC No.473/2024 on the files of Additional Chief Judicial Magistrate (MPs/MLAs) Ernakulam.	Annexure-A13
14.	06.12.2024	True copy of the notice of sale issued by defendants1 and 2.	Annexure-A14

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Page 11 of 12

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SA No.840 of 2024

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15.	---	True copy of the brochure for the Global SportiveForum.	Annexure-A15
16.	17.01.2025	True copy of the notice of sale issued by defendant bank.	Annexure-A16
17.	14.01.2025	True copy of the proceedings before the Additional Chief Judicial Magistrate (MPs/MLAs)Ernakulam.	Annexure-A17
18.	---	True copy of the agreement with HindujaLeylandFinance.	Annexure-A18
19.	11.02.2025	Certified copy of the judgment of the Hon'ble High Court of Kerala in R.P. No.47/2025.	Annexure-A19

¶91

List of documents filed by the defendants 1 and 2 along with the written statement and additional written statement

¶92

Sl. No.	Date	Particulars
1.	---	Photocopy of acknowledgment cards	Annexure-D1 series
2.	---	Photocopy of postal receipts	Annexure-D2 series
3.	07.12.2024	Photocopy of the Indian Express daily	Annexure-D3
4.	07.12.2024	Photocopy of Mangalam Daily	Annexure-D4
5.	04.01.2025	True copy of the valuation report.	Annexure-D5

¶93

(Su. WILLYAHM) PRESIDING OFFICER

¶94

Mj/

¶95

Page 12 of 12

Pratheesh Krishna v. Hinduja Leyland Finance Limited

Case brief

What is this about?

What did the court decide?

Pratheesh Krishna v. Hinduja Leyland Finance Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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