Dismissed

Theivelli Mohamed Kabhir v. South Indian Bank

DRT26 Feb 2026SA/203/2025

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed the applicant's application challenging the bank's securitization proceedings. The court held that since the applicant failed to raise objections under Section 13(3)-A regarding the demand notice's quantum, they cannot now challenge it. Similarly, no material illegality was found in the Section 14 proceedings for possession.

What did the court decide?

Securitization application dismissed; and set aside relief denied.

Theivelli Mohamed Kabhir versus South Indian Bank — Banking and Recovery | DRT (2026)

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IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

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PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER

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Dated this the 26^th day of February, 2026

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SECURITIZATION APPLICATION No.203/2025

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Between

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Theivelli Mohamed Kabhir, Aged 55 years, S/o. T.K. Mohamed, Manapparambil House, Puzhamkaraillath House, Kaipamangalam, Chalingad P.O., Thrissur, Represented by Power of Attorney Holder, Abdul Gafoor, Aged 42 years, S/o. Muhammed Kunji, Puzhamkaraillath House, Kaipamangalam, Chalingad P.O., Thrissur, PIN – 680 681. …Applicant

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And

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South Indian Bank Limited, Represented by its Authorised Officer, Regional Office, Irinjalakuda, VI/950-B, Christ Nagar, AKP Junction, Irinjalakuda North, Thrissur – 680 125. …Defendant

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This Securitization Application having been heard on 09.02.2026 in the presence of Advocate Mr. Raynold Fernandez N.

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for the applicants and Advocate Mr. K.Madhusoodanan for the

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defendant and stood over to this day for consideration, the Tribunal delivered the following:

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F I N A L O R D E R

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Challenging the securitization proceeding initiated by the defendant under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’), the applicant, Power of attorney holder of the borrower has filed this SA under S.17(1) of the SARFAESI Act seeking relief to set aside the demand notice and possession notice issued by the Advocate Commissioner with a prayer to declare all the proceedings as illegal.

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Brief facts of the case :

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2.1. The applicant along with his wife availed housing loan from the defendant bank by creating equitable mortgage over the subject matter property of an extent of 5.79 Ares with a residential building there on described in details in the SA. It is claimed by the applicant that due to covid-19 pandemic, he could not service the loan regularly. Hence the defendant issued a demand notice on 14.09.2021 after classifying the loan as ‘NPA’ calling him to repay the same. It is claimed that the demand notice is not proper and

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the same is not issued in compliance of the statutory requirement as contained under Section 13(3) of the SARFAESI Act.

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2.2. The issuance of the possession notice is also not proper. Therefore, the defendant initiated a proceeding bearing CMP No.8073/2024 under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Thrissur. The learned CJM, without appreciating the materials, passed a mechanical order in appointing an Advocate Commissioner to take possession of the secured asset. It is also claimed that the affidavit filed by the Authorised Officer is not as per the proviso to Section 14(1) of the SARFAESI Act. Hence

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the applicant has filed this SA praying to set aside the demand notice and possession notice issued by the Advocate Commissioner with a prayer to declare all the proceedings as illegal.

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The defendant filed written statement denying the averments and claimed inter alia that there is no illegality or irregularity in the securitization proceeding to interdict. All the statutory measures are duly followed. The Authorised Officer is duly authorised by the statute to exercise the rights of the secured creditor. There is no illegality in issuing demand notice by him. After receipt of the demand notice, no objection or representation under Section 13(3-A) of the SARFAESI Act was submitted by the

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applicant in disputing the claim. In absence of such objection, the applicant cannot challenge the securitization proceeding. All the relevant documents relating to compliance of the statutory requirement are filed. The Authorised Officer has also sworn affidavit before the CJM in accordance with the law. No illegality is committed by the CJM in passing the order in appointing Advocate Commissioner. Hence the applicant is not entitled to get any relief and the SA may be dismissed.

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From the respective case of the applicant and defendant, the following points emerged for adjudication in this case:

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(i) Whether the securitization proceeding initiated by the defendant suffers from any illegality or defect or irregularity to intervene with the same?

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(ii) Whether the applicant is entitled to get any relief in this proceeding?

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FINDINGS:

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Point No.(i) & (ii):-

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Admittedly the applicant availed the loan from the defendant by creating security interest over the subject matter property. There is also no dispute regarding receipt of the demand notice dated 14.09.2021. No objection or representation was raised

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by the applicant under section 13(3-A) of the SARFAESI Act claiming any dispute in the securitization proceeding. The details of the loan and the description of the property are stated in the demand notice. The subject matter property is also described with the door Number, Survey Number along with the boundary. The property is identifiable.

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During argument the learned counsel for the applicant confined to his argument on the following:-

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(i). The proviso (i) to (ix) of Section 14(1) of the SARFAESI Act was not duly complied by the Authorised Officer. Hence the proceeding under Section 14 of the SARFAESI Act is vitiated.

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(ii). No building is described in the CMP filed before the CJM. In absence of the same, the defendant cannot take possession of the building.

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(iii). The interest charged in the account is exorbitant and the defendant is not entitled to receive the same.

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On the other hand the learned counsel for the defendant contended that there is no illegality in the proceedings initiated before the CJM and also in the securitization proceeding. In absence of any illegality, interference with the said proceeding is not warranted. Since the applicant has not disputed the demand notice by filing any objection or representation, the claim of charging high

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interest is not acceptable. As per the terms and conditions of the loan, interest was charged. Hence the contention of the applicant is not sustainable, and the SA may be dismissed.

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In fact the demand notice was duly served on the applicant which is not disputed. In the said demand notice it is specifically stated that an amount of Rs.11,48,896.12 as on 13.09.2021 is due with further interest with monthly rests and penal interest @ 2% per annum from 10.09.2021 till the date of realization is claimed. If the applicant has any grievance against such demand and the charging of the interest, he could have raised objection under Section 13(3-A) of the SARFAESI Act. But he did not raise any objection. Raising such contention at this stage is not legally permissible in view of the ratio decided by the Hon'ble High Court of Kerala in the judgment reported in 2022 (3) KLT 645 in the case of AGP City Gas Private Limited v. M/s.Lynx Properties & Developers & others in which it is held as follows:

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“21. Once the notice of demand is served, the mandate of the Act, as evident from section 13(3)-A, is the availability of an opportunity to the borrower to raise any objection against the notice issued. This statutory notice enables the borrower to raise an objection on any of the grounds available to him, including the objection regarding the quantum specified in the demand notice.

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22. In the instant case, admittedly no objection was raised by the borrower or guarantor on the quantum specified in the demand notice issued under section 13(2) of the Act. Therefore, the

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opportunity available to the borrower as well as the guarantor, to object to the quantum mentioned in the demand notice was not availed by them. Hence, they cannot thereafter, turn around and question the quantum mentioned in the demand notice to contend that the notice is bad in law. ……”

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In view of this ratio, the contention of the applicant is not sustainable. Also no material defect is found from the demand notice to interdict with the same.

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In respect of the non-compliance of clause (i) to (ix) of the Section 14(1) of the SARFAESI Act, it is seen from the affidavit filed by the Authorised Officer before the CJM, marked Annexure-A3 is duly complied. All the materials are stated in details in the affidavit keeping in view of the requirement of the statute. The amount due as on 11.07.2024 is specifically stated and the application was presented on 12.07.2024. It is only raised by the applicant that the Advocate signed the application on 09.07.2024, which appears to be a typographic error in putting the date keeping in view of the averments of the affidavit. In the affidavit it is specifically mentioned the outstanding as on 11.07.2024 and the Authorised Officer signed it on 12.07.2024. Hence the contention on this aspect is also not sustainable.

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The declaration made by the Authorised Officer is specifically complied. In a Division Bench judgment of the Hon’ble

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Telangana High Court reported in 2019 KHC 3959 in the case of

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Tulsi Rocks Pvt. Ltd., Secunderabad & others v. Bank of India

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& Anr., at paragraph 17 it is held as follows:-

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“17. Therefore, wherever this Court finds that the parameters indicated in Clauses (i) to (ix) of the first proviso to Section 14 (1) of the Act are broadly complied with, the Court is bound to invoke the doctrine of ‘substantial compliance’. It must be remembered that Clauses (i) to (ix) of the first proviso to Section 14 (1) of the Act merely provide the form in which the essential averments for an application under Section 14 of the Act are to be made. Therefore, what is important, is the substance and not the form.”

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In view of the ratio if the affidavit is substantially complied, interference with the same is not warranted. Hence the contention of the learned counsel for the applicant is not sustainable. It is also seen from the order passed by the CJM that after perusing the petition and the affidavit and also being satisfied, the order was passed. Nothing material illegality is found in the order passed by the CJM, which is purely administrative in nature.

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The Hon'ble Apex Court in the judgment reported in

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(2023) 1 SCC 675 in the case of M/s. R.D.Jain and Co. v. Capital First Ltd. & others had held as follows:-

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“8.1 …………Thus, we reiterate that the step to be taken by the CMM/DM under Section 14 of the SARFAESI Act, is a ministerial step. While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi-judicial function or application of mind would require. The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the

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borrower against the secured creditor taking possession of secured assets.”

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In view of this ratio the CJM has not committed any error in passing order which are based on application of mind to the documents placed. Hence interference with the order of the CJM is not warranted. In absence of any illegality interference with the securitization proceeding is not warranted and the applicant is not entitled to get any relief. Both the points are answered against him.

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Hence it is ordered:-

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ORDER

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In view of the foregoing reasons, this SA, being devoid of any merit, is hereby dismissed. But in the circumstances, without costs.

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(Dictated to my PA, corrected and pronounced by me in the open Tribunal on this the 26^th day of February, 2026).

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[SOVAN KUMAR DASH] PRESIDING OFFICER

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Documents on the part of the applicant

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Annexures	Date	Particulars of documents
Annexure-A1	14.09.2021	True copy of the Demand notice issued by the Authorised Officer.
Annexure-A2	12.07.2024	The certified copy of CMP No.8073/2024 filed under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Thrissur.
Annexure-A3		The certified copy of the affidavit dated 12.07.2024 and 09.07.2024 filed by the defendant in CMP No.8073/2024.
Annexure-A4	23.07.2024	Certified copy of the order in CMP No.8073/2024 passed by the Chief Judicial Magistrate Court, Thrissur.
Annexure-A5	03.10.2024	The dispossession notice given by the Advocate Commissioner.
Annexure-A5A		True English translation of Annexure A5.

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Documents on the part of the defendant

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Annexures	Date	Particulars of documents
Annexure-B1	29.07.2015	Copy of sanction order.
Annexure-B2	29.07.2015	Copy of acknowledgement of receipt of documents.

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PRESIDING OFFICER

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SA 203/2025

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IN THE DEBTS RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM

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PRESENT: SRI.SOVAN KUMAR DASH PRESIDING OFFICER

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Dated the 26^th February, 2026

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SA No.203/2025

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Between Theivelli Mohamed Kabhir, Aged 55 years, S/o. T.K. Mohamed, Manapparambil House, Puzhamkaraillath House, Kaipamangalam, Chalingad P.O., Thrissur, Represented by Power of Attorney Holder, Abdul Gafoor, Aged 42 years, S/o. Muhammed Kunji, Puzhamkaraillath House, Kaipamangalam, Chalingad P.O., Thrissur, PIN – 680 681. …Applicant

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And

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South Indian Bank Limited, Represented by its Authorised Officer, Regional Office, Irinjalakuda, VI/950-B, Christ Nagar, AKP Junction, Irinjalakuda North, Thrissur – 680 125. …Defendant

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F I N A L O R D E R

Theivelli Mohamed Kabhir v. South Indian Bank

Case brief

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Theivelli Mohamed Kabhir v. South Indian Bank

Case brief

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