This Securitisation Application (for short-‘the SA’) is filed on 01.12.2017 seeking to set aside Annexure-A4 statutory notice dated 01.08.2017 demanding to pay Rs. 2,11,57,728/-, Annexure-A7 Section 14 petition filed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short-‘the Act’) before the learned Chief Judicial Magistrate Court, Ernakulam in M.C. No. 508/2017 whereunder the total claim as on 01.11.2017 is stated to be Rs. 2,18,89,077.94, Annexure-A8 notice of dispossession dated 23.11.2017 issued by Advocate Commissioner appointed by the concerned court and for other incidental reliefs.
2.1 The factual and legal submission advanced by the parties hereto fall on a narrow compass. There is no denying the fact on the part of the applicant as to his availment of the overdraft facility of Rs. 200 Lakhs from the 1 defendant bank on creation of security interest over his residential property. It is however the definitive case and contention of the applicant that the statutory demand notice have come to be issued setting out therein as if the security interest created by him was in respect of 37 Cents of land comprised in Re. Sy. No. 51/3/2 of Aluva West Village in Aluva Taluk, Ernakulam District oblivious of the fact that Annexures-A1 & A2 deposited by him in creation of security interest are certificates issued by Village Officer, Choornikkara to be produced before the defendant bank setting out the name of Village as Choornikkara only under the head ‘Particulars of Village’ therein. The learned counsel for the applicant took this Tribunal through para 7 of Annexure-A7 Section 14 petition as also through the description of property more fully given in its schedule of the property to canvass for his proposition that the 2 defendant had represented and obtained order in such proceedings only in respect of the property situated in Aluva West Village and not by mentioning anywhere in the said petition the name of Choornikkara Village where it is otherwise presently and actually situated. He added that it is not open for the 2 defendant to assume possession of the applicant's residential property situated in Choornikkara Village in pursuance of Annexure-A8 notice of dispossession dated 23.11.2017 issued by Advocate Commissioner appointed by the concerned court which as well is to the effect of he being conferred with the authority to take possession of the schedule property comprised in Re. Sy. No. 51/3/2 having an extent of 14.98 Ares in Aluva Village only.
2.2 Mr. V.K. Peer Mohamed Khan, Ld. counsel for the applicant emphatically argued that notwithstanding his client's issuance of Annexure-A5 objection dated 27.09.2017 asserting therein as regards the misdescription of Village, the defendants' initiation of further measures in terms of Section 13(4) read with Section 14 of the Act by setting out the Village name as Aluva West Village instead of Choornikara Village is patently illegal and the statutory demand notice and all consequential measures proceeded therewith are only to be set aside on hat score alone. It was also submitted that Annexure-A4 demand notice would not set out the description and boundaries of the ‘secured asset’ intended to be proceeded against which is in clear violation of the provisions of Act and Rules. The learned counsel for the applicant would urge to see sub-section (3) of Section 13 of the Act which should be construed to be one mandating the secured creditor to set out in the demand notice to be caused under sub-section (2)-the details of ‘secured asset’ intended to be enforced in the event of the borrowers' non-payment of the ‘secured debt’. The SA is sought to be allowed as prayed for.
3.1 Mr. A.V. Thomas Ld. Senior counsel appearing for the defendants would submit that Annexure-A4 demand notice in terms of Section 13(2) of the Act is a notice by the secured creditor to the borrower alone and has no significance or relevance whatsoever in so far as the third parties are concerned. Advertence was made to Annexure-A6 reply sent by the defendants under Section 13(3A) of the Act to Annexure-A5 written objection of the applicant whereunder the 2 defendant had specifically required the applicant to refer to his title deed namely Sale Deed No. 1931/2005 which describes the property as 37 cents in Aluva West Village with residential building as has come to be shown in Annexure-A4 demand notice dated 01.08.2017. As the defendant bank had in explicit terms mentioned its mortgaged property to be one clearly covered under the sale deed No. 1931/2005, it would not be open to the applicant to feign ignorance about the property being proceeded against under the Act, would be his further submission. It was pointedly argued that the title deed referred to in Annexure-A6 reply notice is an indenture/conveyance only in respect of the applicant's secured asset since proceeded against and it is nobody's case that there are many more items of property under the said document giving room for any doubt as to the identity of the property proceeded against.
3.2 According to the learned senior counsel appearing for the defendants, an immovable property should be well identifiable by its Survey Numbers, Door numbers, four side boundaries and other attendant features described in the schedule of a document. The copy of the applicant's declaration dated 18.03.2016 duly authenticated by a Notary Public was adverted to on the side of the defendants, whereunder he had clearly described his aforementioned immovable property to be admeasuring 14.98 Ares in old Sy. No. 345/5A, 345/1A, 1B corresponding Re. Sy. No. 51/3/2/2, Block No. 34 of Choornikkara Village (earlier Aluva West Village) in Muttom Kara within Choornikara Panchayat limits in Aluva Taluk and Sub-district and Ernakulam District covered by sale deed No. 1931/2005 of Aluva SRO with house bearing No. 15/20. It is also the case and contention of the defendants that merely for the reason of bifurcation of Aluva West Village as Aluva West Village and Choornikkara Village, the security created by the applicant in favour of the 1 defendant bank by deposit of his title deeds which refers to Aluva West Village alone would not be rendered unenforceable or unidentifiable as the property could otherwise also be identified going by its Survey Numbers, boundaries, title deeds document numbers, block number, kara/desam etc..
3.3 Pointing out to Annexure-A7 order dated 09.11.2017 passed by the learned Chief Judicial Magistrate Court, Ernakulam whereunder the Advocate Commissioner is required to take possession of the ‘secured asset’ after noticing the respondent therein, it came to be submitted that the said order grants liberty to the Advocate Commissioner to apply for police assistance as also that of local Village Officer or Surveyor to execute the warrant of commission after obtaining necessary sanction from the Court and consequent upon their depositing of bata for the work of the VO/Surveyor if any such situation would so arise in execution of the same. That being the tenor of the order, the applicant cannot be heard to have suffered any prejudice at this stage requiring interference or interdiction of this Tribunal, is yet another strenuous submission that came forth from the side of the defendants. To succor strength for their submission that it should be possible and practicable for the Advocate Commissioner appointed by the CJM Court to identify and assume possession of the secured asset adverting to the concerned title deed and with the assistance of Village Officer or Surveyor, the defendants would respectfully rely on the judgement of the Hon'ble Apex Court rendered in the case titled Subhaga v. Shobha ((2006) 5 SCC 466) wherein it held thus:
5……….We think that the High Court was not justified in interfering with the finding of the lower appellate court and in discarding the identification made by the Commissioner. It must be noticed that the suit had been remanded twice for the purpose of identifying the suit property and such identification had been done by the Commissioner and such identification had been accepted by the trial court and the first appellate court in the light of the admissions of DW1. The vague and general reasons given by the High Court for interfering with the decision of the first appellate court are clearly insufficient to upset the finding on identification. There was nothing to show that the Commissioner had not properly identified the suit property.
6. The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removed and the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner had identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find our whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference.
3.4 Palpably Annexure-B6 certificate issued by Tahsildar, Aluva which is obtained and produced by the defendant bank reads as hereunder:
“No. 7918/06(2) Taluk Office, Aluva
Aluva P.O., Pin-683101
Phone: 04842624052
Date: 22/12/2017
CERTIFICATE
This is to certify that 14.98 Ares of land comprised in Sy. No. 51/3-2-2 in Block No. 34 of Choonikkara Village, Aluva Taluk is under the possession of Sri. Muhammed Ali, S/o Hydros, Puthiyedath Prambil House, Muttam Kara, Choornikkara, which was included in the Aluva West Village before the bifurcation.
This certificate is issued as per the request of Chief Manager, Union Bank, Panampilly Nagar Branch.
Tahsildar
Aluva”
The learned senior counsel would sum up his arguments contending that a conjoint reading of Annexures-A4 to A7 should leave no room for doubt that the property proceeded against by the defendant bank is only the same extent of land and building offered as security by the applicant covered under the sale deed No. 1931/2005 and he cannot therefore be heard to complain of suffering any sort of prejudice requiring intervention of this Tribunal in any respects. The SA is sought to be dismissed with costs.
4.1 Pertinently the contention raised by the applicant as regards the defendants' incorrect mentioning of the name of Village of the secured asset in its SARFAESIA proceedings though should appear to be attractive at the first blush, he has no case or contention of mortgaging more or less extent of his land with residential building thereon other than the extent which has come to be stated by the defendant bank in Re. Sy. No. 51/3/2 covered under sale deed No. 1931/2005 of Aluva SRO. The applicant's definitive contention raised on the lines that the village name has come to be mentioned in all the SARFAESIA measures taken by the defendants as ‘Aluva West Village’ notwithstanding the occurrence of bifurcation of said village at a prior point of time and his mentioning in Annexure-A5 written objection dated 27.09.2017 about the falling of the secured asset presently in ‘Choornikara Village’, is of course true. The applicant, at the same time, would not deny or dispute his execution of the declaration dated 18.03.2016 attested by a notary public whereunder he had definitively affirmed about his entitlement to 14.98 Ares in old Sy. No. 345/5A, 345/1A, 1B in Re. Sy. No. 51/3/2/2 and Block No. 34 of the Muttamkara in Aluva West Village covered by sale deed No. 1931/2005 of the Aluva SRO with boundaries as more fully provided under the head ‘description’ of the first schedule referred thereto together with house thereon numbered as 15/20. The name ‘Choornikara Village’ is found stated to be the earlier ‘Aluva West Village’ under the head first schedule of the self-same declaration which is relied on by the defendants and received in evidence on their side as Annexure-B8. Annexure-B6 certificate dated 22.12.2017 issued by Tahsildar of Aluva would as well show the secured asset now situated in ‘Choornikara Village’ to have been included in ‘Aluva West Village’ before bifurcation.
4.2 Section 13(3) of the Act requires the secured creditor to furnish the details of the ‘secured asset’ sought to be enforced as also the details of the amount payable by the borrower. The expression ‘details’ contained in the sub-section (3) being synonymous with the expression ‘particulars’ would have to be given its plain, ordinary meaning as provided in the English dictionary and is not to be stretched too far so as to say or construe that it had been the legislative intendment to require the secured creditor to give in the demand notice the entire description of property as set out in the title deeds deposited with the bank. What requires to be considered now for the purpose of determining the illegality pointed out by the applicant is whether Section 14 proceedings is to be brushed aside, merely for the reason of non-mentioning of the name of the ‘Choornikara Village’ which comprised to be a part of the earlier ‘Aluva West Village’ before bifurcation notwithstanding the defendants mentioning of its correct extent of land, boundaries, old survey number, new Re survey number, Taluk, District name etc. with specific reference to the sale deed No. 1931/2005 dated 26.03.2005 of Aluva SRO concededly deposited by the applicant with the bank in creation of a lawful security interest.
4.3 Be it noted that the secured asset is stated to be falling within ‘Choornikara Panchayat’ limit in Annexure-A7 Section 14 petition and the property sought to be enforced under Annexure-A4 demand notice is the applicant's 37 Cents of residential semi urban land in Re. Sy. No. 51/3/2 of Aluva West Village in Aluva Taluk, Ernakulam District. Unlike the possession notice and sale notice for which the notice formats are statutorily prescribed under Annexure-IV in terms of Rule 8(1) and Annexure-IV-A in terms of Rule 8(6) there being no such statutory format under the Rules in so far as the demand notice is concerned, what is required to be made known to the borrower is the details of the assets that would be enforced in case of his default in repayment of the amount demanded. The applicant has no case or contention to the effect that the document of title deposited by him with the defendant bank sets out a different extent of land, survey number and village name than what has been set out under the head ‘description of the secured asset’ in Annexure-A4 demand notice.
4.4 The Tribunal, in the backdrop of preceding factual narrative, gave an anxious consideration as to whether the non-mentioning in the defendant's Section 14 petition the name of the present village after the bifurcation of the earlier ‘Aluva West Village’ would cut at the very root of the matter vitiating the said proceeding. Going by the dictum and ratio found in the following judgment of the Hon'ble High Court of Madhya Pradesh, the answer which it gets is only in the negative. The said Court in the case titled Garden Pick Pvt. Ltd. v. Central Bank Of India, reported in had while deciding the challenge made to a SARFAESI sale on the premise of the alleged misdescription of property akin to the present fact situation held as follows:—
“4. The petitioner then contends that there is misdescription of the property in the auction notice published by the Bank. This contention was raised before the Tribunal. The Tribunal has noted in second paragraph of the impugned order that the Counsel appearing for the petitioner fairly conceded at the time of arguments that, in fact, at the time of mortgaging, the property was situated in District Hoshangabad and, subsequently, after restructuring, new District Harda was formed, and now the property is situated in District Harda
(Emphasis is mine)
5. The Counsel submits that if proper description of the property was notified, some more bidders would have participated in the auction process.
6. It is not the case of the petitioner that due to misdescription, no offers were received. From the communication tendered across Bar by the Counsel for the Bank, it is obvious that the bids were received pursuant to the auction notice and the auction was confirmed in favour of the highest bidder on 20.1.2014. Incidentally, the said highest bidder is resident of New LIC Colony in District Harda (MP). In that sense, the ground raised by the petitioner that more residents of district Harda would have participated, is devoid of any substance.”
4.5 On a respectful reading of the judgments of the Hon'ble High Court of Madras rendered in the cases Sridevi v. M. Natesan and A. Parvatham v. Bank of Baroda, the law deducible therefrom is that any property should be clearly identifiable by the description given in a notice with reference to its four side boundaries. The law is trite that if there would be any discrepancy in mentioning the extent in a description of property, such extent as would be found within the four side boundaries of a given property would alone be relevant to arrive at the actual extent as the boundaries would prevail over the extent of a property that is incorrectly given. The description of property given in Section 14 proceedings cannot be flawed merely for the reason of its mentioning of the village name as it stood before bifurcation as the sale deed document number and the concerned sub-registry details are provided therewith for its adequate identification of the property proceeded against the said proceedings.
4.6 For the sake of clarity, it is to be observed here that the borrower who could have mortgaged more item of properties has every right to know in terms of Section 13(3) of the Act as to which of his mortgaged properties are intended to be proceeded against by the secured creditor under the Act. That limited requirement of law stood satisfied in this case in so far as the applicant/borrower is concerned on his being apprised about the details of the property with reference to its extent, Survey. No. and the like. Going by the ratio and dictum laid down in the aforesaid judgments, the Tribunal holds that in so far as Annexure-A4 demand notice, Annexure-A6 reply notice and Annexure-A7 Section 14 petition sets out in either of them the requisite details of the secured asset proceeded against including its extent being 37 cents or 14.98 Ares as the case may be in Re. Sy. No. 51/3/2 with reference to its Old Village name, sale deed No. & Registrar Office in respect of which the applicant has no dispute or quarrel, seeking to hold them as illegal merely for non-mentioning of the present village name does not appear to be just and proper.
4.7 On a conspectus of the documents available on record, the Tribunal arrives at an inevitable conclusion that the applicant (borrower) has been duly noticed about the ‘secured asset’ intended to be enforced. The description of property given in the statutory demand notice or Section 14 proceedings certainly appears to be sufficient and adequate in so far as the applicant is concerned and cannot be dubbed as illegal or irregular merely for the reason of non-setting out of the entire description of property as given in the title deed in the impugned Annexure-A4 demand notice or for non mentioning in Section 14 petition the present village name being Choornikkara Village after the bifurcation notwithstanding the 2 defendant's setting out of the entire description of property therein with reference to its extent, old and new survey numbers, four side boundaries and the old village name as it stood before bifurcation. It is otherwise also a well settled legal proposition that while non-service of a statutory notice is an illegality vitiating the entire process, an irregularity attached to it should not render it so until the person complaining of it would demonstrate the prejudice he eventually stood to suffer. The Hon'ble Apex Court in the case titled Prabin Ram Phukan v. State of Assam (AIR 2015 SC 1252 : (2015) 3 SCC 605) had observed thus:
“26. In our considered opinion, there lies a distinction between non-service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential action, if taken would be rendered bad in law once the fact of non-service is proved whereas in the case of later category of cases, the consequential action, if taken would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned he was completely unaware of the proceedings which were held behind his back thereby rendering the action “illegal” whereas in the case of later, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused.”
5. Finding no force in the factual and legal submissions that came forth from the applicant, the SA is only to be dismissed and the Tribunal wherefore dismisses it accordingly. Consequently IA No. 3005/2018 stands closed. No order as to costs. Handover.