Dismissed

M K Santhosh v. State Bank of India

DRT18 Feb 2025SA/92/2023

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed the applicant's securitization application seeking to set aside demand and possession notices. The Tribunal held that the applicant failed to prove non-compliance with statutory requirements and did not challenge the possession notice within the prescribed period.

What the court decided

AI extract

M K Santhosh versus State Bank of India — 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 18^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. 92 of 2023

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Between

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Dr. Santhosh M.K., S/o. Kunhikannan, Sreelakam, Thiruvangad, Thalassery, Kannur District-670103.

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--- Applicant

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And

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Authorized Officer,

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State Bank of India,

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Asset Recovery Management Branch, R.S. Building, M.G. Road, Ernakulam,

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Kochi -682 011.

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State Bank of India, S.M.E. Kannur Branch,

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Kannur -670 012,

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Rep. by its Branch Manager.

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--- Defendants

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This Securitization Application coming on 21.11.2024 for final hearing before me in the presence of Mr. C. Sivadas Counsel appearing for the Applicant and Mr. K.K.John, Advocate appearing for the defendants 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.92 of 2023

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O R D E R

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This Securitisation Application was filed on 05.11.2018 seeking to set aside Annexure-A1 Demand Notice and Annexure-A5 Possession Notice and to direct the defendants to re-initiate proceedings right from the issue of Annexure-A1, after rectifying the lapses and omissions in calculation of the due amount and including the secured assets omitted in the above notices and to direct the 1^st defendant to pay the costs of the proceedings.

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The applicant’s wife Sreeja K., D/o. P.R. Venugopal and Abdul Latheef are the partners of the partnership firm, namely “M/s.Royal Malabar Hospital” situated in Jubilee Road, Kannur. It is not in dispute that the aforesaid partnership firm availed term loan to a tune of Rs.200 Lakhs from the 2^nd defendant bank. The applicant is the guarantor to the aforesaid credit facilities availed by the partnership firm. The applicant has also admitted the creation of security interest over his immovable property admeasuring 6.49 Ares situated in Re.Sy No.266 of Thiruvangad village by deposit of title deeds in favour of the 2^nd defendant bank as the collateral security for the aforesaid credit facilities availed by the partnership firm.

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The default in repayment of the outstanding loan due by the aforesaid partnership firm was admitted by the applicant in the SA. Hence the loan account of the partnership firm was classified as Nonperforming Asset on 30.04.2021. Annexure-A1 demand notice dated 16.07.2022 was issued to the applicant and other co-borrowers calling upon them to repay the outstanding loan due within a period of 60 days from the date of receipt of the demand notice. Annexure-B1(a) to B1(e) postal acknowledgment cards produced by the defendants evidences the receipt of the demand notice by the applicants and other co-borrowers. Indisputably, the applicant and other co-borrowers neither sent any objection/representation to the demand notice nor did they clear off their liability due to the 2^nd defendant bank.

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Hence, Annexure-A2 possession notice dated 31.10.2022 was issued for taking physical possession of the secured asset. Subsequently, the 1^st defendant sent letter dated 17.11.2022 Annexure-A4 to the applicant informing him that possession notice dated 31.10.2022 was withdrawn. Therefore, fresh possession notice dated 16.12.2022 Annexure-A5 was subsequently issued for taking physical possession of the secured asset.

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The defendants have produced copy of photograph Annexure-B2 and copies of paper publications, Annexure-B2(a) and B2(b) in order to prove their contention that Annexure-A5 possession notice was conspicuously affixed on the secured asset and it was published in

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Page 2 of 5

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SA No.92 of 2023

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The Hindu edition dated 17.02.2022 and Desabhimani edition dated 17.02.2022. It appears that the applicant did not challenge the aforesaid possession notice within the period of 45 days from the date of issuance of the possession notice. This Tribunal does not find any procedural irregularities in respect of issuance of Annexure-A5 possession notice.

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The defendants approached the Chief Judicial Magistrate Court Kozhikode and filed petition and affidavit under Section 14 (1) of the SARFAESI Act, 2002. Order dated 26.05.2023 came to be passed in CMP No.1834/2023 appointing Advocate Commissioner for taking physical possession of the secured asset. The Advocate Commissioner issued notice Annexure-A7 to the applicant informing him that he would take physical possession of the secured asset within seven days from the date of receipt of the notice. The applicant having aggrieved against the above measures filed this SA seeking the reliefs stated supra.

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The applicant has not produced the copy of the petition and affidavit filed in CMP No.1834/2023 filed by the defendants before the Chief Judicial Magistrate Court, Kozhikode and also the copy of the order passed in CMP No.1834/2023. It is also not the contention of the applicant that the statutory requirements contemplated under Clause (i) to (ix) to the proviso of Section 14(1) of the SARFAESI Act, 2002 was not complied with by the defendants in respect of filing of the affidavit in CMP No.1834/2023. It is also not the contention of the applicant that the Chief Judicial Magistrate Court, Kozhikode passed order without having perused the contents of the affidavit and the documents filed in support of the affidavit and having satisfied over the same.

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The applicant has failed to prove his 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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In the result, S.A No.92 of 2023 stands dismissed. No 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 18^th day of February, 2025.

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(Su. WILLYAHM) PRESIDING OFFICER

Mj/

Page 3 of 5

SA No.92 of 2023

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

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Sl. No.	Date	Particulars
1.	16.07.2022	True copy of the Demand Notice issued by1^st defendant.	Annexure-A1
2.	31.10.2022	True copy of the Possession Notice issued by1^st defendant.	Annexure-A2
3.	15.11.2022	True copy of the letter sent by 1^st defendant.	Annexure-A3
4.	17.11.2022	True copy of withdrawal notice issued by1^st defendant.	Annexure-A4
5.	16.12.2022	True copy of the Possession Notice issued by1^st defendant.	Annexure-A5
6.	23.12.2021	True copy of print out of e-mail sent by 1^st defendant.	Annexure-A6
7.	---	True copy of the Possession Notice issued byAdvocate Commissioner	Annexure-A7

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

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Sl. No.	Date	Particulars
1.	---	True copy of postal acknowledgment signed by/for Royal Malabar Hospital.	Annexure-B1
2.	---	True copy of postal acknowledgment signed by/for Smt. Sreeja kakkukal	Annexure- B1(a)
3.	---	True copy of postal acknowledgment signed by/for Mr. Abdul Latheef	Annexure- B1(b)
4.	---	True copy of postal acknowledgment signed by/for Dr. Venugopal P.R.	Annexure- B1(c)
5.	---	True copy of postal acknowledgment signed by/for the applicant.	Annexure- B1(d)
6.	---	True copy of postal acknowledgment signed by/forSmt. Zaneera Latheef	Annexure- B1(e)

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Page 4 of 5

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SA No.92 of 2023

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7.	---	True copy of photograph taken at the time of affixture of the Possession Notice dated16.12.2022.	Annexure-B2
8.	17.12.2022	True copy of the publication in The Hindu (English)newspaper.	Annexure- B2(a)
9.	17.12.2022	True copy of the publication in Deshabhimani(Malayalam)newspaper	Annexure- B2(b)

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(Su. WILLYAHM) PRESIDING OFFICER

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Mj/

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Page 5 of 5

M K Santhosh v. State Bank of India

Case brief

What is this about?

What the court decided

M K Santhosh v. State Bank of India

Case brief

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What the court decided

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