BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL, AT

CHENNAI

M.A NO. OF 2024

(Against the order/proceeding dated 26/11/2024 in I.A.No.3087/2024 in S.A.
No.580/2023 on the file of Debt Recovery Tribunal-I, Ernakulam)

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691. …APPELLANT
Vs
M/s. HDFC Bank Ltd.,
Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer. ---RESPONDENT

MEMORANDUM OF APPEAL FILED UNDER SECTION 18 OF THE

SECURITISATION AND RECONSTRUCTION FINANCIAL ASSETS &
ENFORCEMENT OF SECURITY INTEREST ACT, 2002

I. PARTICULARS OF THE APPELLANT

a) Name and Address of the Appellant :

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691

b) Address for service of all notice on the

Appellants :
M/s.V.DEIVEEGAN
G.SANJEEVI
K.PRIYADHARSHINI

II PARTICULARS OF THE RESPONDENT

a) Name and address of the Respondents :

HDFC Bank Ltd,
Choice Towers, 1 st Floor,
Manorama Junction,
 Ernakulam South,
Kochi, Pin-682016,
represented by its Authorised Officer
b) Address for service of all notices :
As stated above

III. JURISDICTION OF THE TRIBUNAL

The appellants submit that the above appeal is filed against the
order/proceeding dated 26/11/2024 in I.A.No.3087/2024 in S.A. No.580/2023
on the file of Debt Recovery Tribunal-I, at Ernakulam. Hence it is declared
that subject matter of the appeal falls within the jurisdiction of this Hon’ble
Appellate Tribunal.

IV. LIMITATION

The appellants declare that the above appeal is filed within the period of
limitation as prescribed under law. The certified copy of the order/proceeding
was made ready and delivered to the appellants by the Tribunal on
06/12/2024. As such the appeal is filed well within the period of limitation.

V. FACTS OF THE CASE

1. The appellant herein are the Appellant and respondents herein are the
defendants in S.A.No.580/2023 on the file of Debt Recovery Tribunal-I, at
Ernakulam. The said SA was filed challenging the proceedings initiated by the
respondent under the SARFAESI Act. The appellants are aggrieved by the
arbitrary dismissal of petition filed praying to direct the defendant to produce
the original of Annexure –D2 sanction letter dated 10.06.2016, Annexure D3
sanction letter dated 27.02.2017, Annexure D9 agreement and Annexure D13
schedule dated 20.06.2016 and annexure D8 and send disputed documents to a
handwriting expert, attached to the Director, Forensic Science Laboratory,
Kerala Police Department , Trivandrum or such other expert as may decided
by this Tribunal for comparing the signatures of the Appellant and his wife
Aniamma Johny with the disputed signatures and to report their opinion as to
whether the disputed signatures are put by the Appellant and his wife or not.
2. The case of the Appellant before lower Tribunal is “This application is filed
against proceedings initiated under Section 13(4) of the Securitisation and
 Reconstruction of Financial Assets and Enforcement of Security Interest Act,
hereinafter referred to as the Act.
3. The Appellant, who is an agriculturist of pineapple, had availed an agriculture
credit overdraft cash credit facility from the Kothamangalam Branch of the
defendant bank on 8.10.2014 for Rs. 1 Crore. This agriculture overdraft was
later enhanced to Rs. 1.75 Crores on 31.10.2015. Subsequently this overdraft
was enhanced to Rs. 2,10,00,000/- (Rupees Two Crore Ten Lakhs) as per
Sanction Letter dated 28.2.2017.
4. The Appellant’s daughter had suffered a renal failure and had to undergo renal
transplant surgery in July 2016. A true copy of the Discharge Summary for
discharge on 25.7.20216 issued by P.V.S. Memorial Hospital is produced as
Annexure A1. The Appellant had to expend nearly about 50 Lakhs for the
surgery and related expenses for treatment of his daughter. The treatment has
to continue lifelong to prevent rejection of the transplanted kidney. True copy
of the medical certificate dated 20.09.2023 issued by Dr. Georgy K. Ninan,
Senior Consultant Nephrologist is produced as Annexure A2.
5. Apart from the above set back, the Appellant suffered huge loss during the
Covid-19 pandemic. The agriculture produce could not be plucked and
processed and he had to expend large amounts to clear the fields as the fruit
decayed.
6. Due to the economic problems caused by the pandemic, the overdraft facility
granted to the Appellant could not be kept within the limit. When the interest
was capitalised by the defendant bank the overdraft facility had exceeded the
limit.
7. At this juncture the defendant bank unilaterally presented a cheque for Rs.
1,75,00,000/- (Rupees 1.75 Crore) from the overdraft account of the
Appellant in its branch at Kozhikode. The Appellant had not issued the said
cheque for that amount. This cheque was presented by the defendant bank at
Kozhikode to illegally compel and coerce the Appellant.
8. Upon receipt of the notice for dishonour of cheque which was served on the
Appellant on 10.3.2020 the Appellant had approached the bank for
regularising the overdraft facility and for renewal of the same and he had
made deposits on 14.2.2020, 24.2.2020, 6.3.2020, 16.3.2020 and 20.3.2020
and the overdraft facility was brought within limits. Thus as on 20.3.2020, i.e.,
within 15 days of receipt of the dishonour notice, the overdraft was brought
 down to Rs. 2,09,98,463.79 i.e., within the limit of Rs. 2 Crore Ten Lakhs.
Despite this the Bank has illegally filed a complaint against the Appellant
before the Court of Special Judicial First Class Magistrate (N.I. Act Cases)
Kozhikode as CMP 801/2021, which is being defended by the Appellant. The
said complaint is an abuse of process of law.
9. While so the defendant bank issued notice dated 25.5.2022 under Sec. 13(2)
of the Act claiming total of Rs. 2,99,59,528/- out of three loans. A true copy
of the notice dated 25.5.2022 under Sec. 13(2) of the Act is produced as
Annexure A3.
10.Ann.A3 notice was issued to three persons clubbing three loans and was
vague. It was a notice with compounded allegations. The Appellant along with
other two persons had caused to issue a reply notice dated 30.7.2022 through a
counsel inter alia denying the liability and disputing the correctness of the
action taken by the bank to make the loan as NPA and to take action under the
Act. True copy of reply notice dated 30.7.2022 is produced as Annexure A4.
11.The defendant bank issued a reply dated 17.8.2022 holding that there is no
abuse of provisions in the action initiated under the Act. The defendant
thereafter issued notice dated 13.9.2023 under Sec. 13(4) of the Act
demanding to hand over 10 cents of residential property of the Appellant on
21.9.2023, a true copy of which is produced as Annexure A5. Ann.A5
notice was served on the Appellant only on 16.9.2023.
12.Without giving sufficient time to the Appellant the defendant bank has again
issued notice dated 21.9.2023 for taking symbolic possession of the residential
house of the Appellant under Section 13(4) of the Act by registered post
which the Appellant has received on 23.9.2023. A true copy of the notice
dated 21.9.2023 for taking symbolic possession of the residential house of the
Appellant is produced as Annexure A6.
13.It is submitted that Ann. A3, A5 and A6 notice and proceedings are vitiated on
several grounds. It is a compounded proceeding against three persons
combining several alleged loans for which the Appellant is not answerable and
security interest is not created by his property. There is serious dispute against
the amounts alleged to be due in the said notices. This apart there are four
other properties other than the residential house of the Appellant given as
security for the cash credit overdraft facility, which properties will more than
suffice to tide over the alleged liability to the bank. The bank cannot take
 draconian proceedings to oust the Appellant and his family from their
residential house without taking recourse to recover the liability for other
properties given.
14.It is submitted that the only loan that the Appellant has taken is the agriculture
credit overdraft cash credit facility of Rs.2,10,00,000/- (Rupees Two Crore
Ten Lakhs) as per Sanction Letter dated 28.2.2017.
15.The Appellant has not taken Cash Credit facility with loan account No.
50200019986166 of Rs. 1,00,000/- as stated in Ann. A4 notice. No Sanction
Letter is issued for the said alleged loan. The Appellant is neither the borrower
nor the guarantor of the said loan and the property of the Appellant has not
been kept as a security for the said loan. The alleged dues of this loan count
not have been clubbed with the claim to proceed against the security interest
created for the agriculture cash credit overdraft facility of the Appellant.
16.Likewise the Appellant has not taken the Term Loan No. 8779981 for Rs.
26,74,913/- as stated in Ann. A4 notice. The Appellant is not aware of the said
loan. No Sanction Letter is issued for the said alleged loan. The Appellant is
neither the borrower nor the guarantor of the said loan and the property of the
Appellant has not been kept as a security for the said loan. The alleged dues of
this loan count not have been clubbed with the claim to proceed against the
security interest created for the agriculture cash credit overdraft facility of the
Appellant.
17.There are altogether five properties given as security by the Appellant for the
agriculture credit overdraft cash credit facility availed by him, as detailed
hereunder.

Sl. Document No. Sy. No. of Extent

No. Keerampara
Village.

I. Sale Deed No. 1906/2006 326/1C/2 40.49 Ares

(I Acre)

II. Sale Deed No. 5025/1988 334/4 21.6 Ares

(52 Cents)

III. Sale Deed No. 4650/1989 335/4/1 & 19.84 Ares

335/6 (49 Cents)

IV. Sale Deed No. 2282/1990 335/6 1.55 Ares

and Release Deed No. (3.840 Cents)
 I/8076/2008
V. Sale Deed No. 5958/1/1999 326/1C/1 4.05 Ares
House property. (10 e
nts)

18.The fact that these documents are held by the bank agriculture credit overdraft
cash credit facility can be seen from the letters issued by the bank. True copy
of letter dated 27.5.2022 in respect of Sale Deed No. 1906/2006, Sy. No.
326/1C2 is produced as Annexure A7. True copy of letter dated 27.5.2022 in
respect of Sale Deed No. 5025/1988, Sy. No. 334/4 is produced as Annexure
A8. True copy of letter dated 27.5.2022 in respect of Sale Deed No.
4650/1989, Sale Deed No. 2882/1990 and Release Deed No. 1/8076/2008, Sy.
No. 335/4/1, 335/6 & 335/6 is produced as Annexure A9. True copy of letter
dated 27.5.2022 in respect of Sale Deed No. 5958/1/1999, Sy. No. 326/1C/1 is
produced as Annexure A10.
19.From the above, it can be seen that altogether five properties are given as
security by the Appellant. However the bank is now maliciously proceeding
only against the house property of the Appellant in 10 cents covered by Sale
Deed No. 5958/1/1999 in Sy. No. 326/1C/1 of Keerampara Village. It is
submitted that the bank ought to proceed against the other properties given as
security for liquidating the liability without trying to oust the Appellant and
his family from their residential house. Sale of a portion of the other properties
will suffice for liquidating the liability of the Appellant. The principles
embodied in Order 21 Rule 64 of CPC is applicable even for a proceeding
under the SARFAESI Act. Only such portion of the property that needs to be
sold to liquidate the liability should be brought for sale. All principles of
justice, equity and good conscience mandate that liability be realised without
disturbing the residential property when there are other properties to be
proceeded against. Apart from the above the amount alleged to be due to the
bank is highly excessive. There cannot be such huge amount due especially
when the Appellant had regularized the overdraft account. This apart the
Appellant is trying to dispose another immovable property for liquidating the
loan liability and some reasonable time needs to be given to him before
proceeding for sale of his assets.

(19A) The Appellants daughter who is a renal patient is fortunately getting

married and the betrothal is fixed on 20.08.2024. An invitation card printed
for the betrothal of the Appellant’s daughter is produced as Annexure A11.
A true copy of the receipt dated 10.04.2024 for booking the auditorium for
the engagement of Appellants daughter is produced as Annexure A12. The
marriage of the Appellant’s daughter is decided to be held on 1.9.2024.
However the card for the marriage is not yet printed as the auditorium for the
reception is not yet fixed. In the meanwhile, while the above case is pending
before this Honourable Tribunal, the officials of the respondent’s bank have
contacted the Appellant and are threatening to take physical possession of
his residential building. On enquiry it is understood that the respondent
bank has filed MC 255/2024 before the Honourable Additional Chief
Judicial Magistrate (MP/MLA Court), Ernakulam for taking physical
possession of the residential house of this petitioner. As per order dated
23.5.2024 in the said proceedings an Advocate Commissioner has also been
appointed for the same. True certified copy of order dated 23.5.2024 in MC
255/2024 of Additional Chief Judicial Magistrate, Ernakulam, (Special Court
for trial of MPs & MLA’s) is produced herewith as Annexure A13. The
Advocate Commissioner in the above said MC 255/2024 has issued
registered notice dated 15.6.2024 seeking to take possession of the
petitioners residence on or after fifteen days of receipt of the notice. A true
copy of notice dated 15.6.2024 issued by the Advocate Commissioner in MC
255/2024 of Additional Chief Judicial Magistrate, Ernakulam, (Special
Court for trial of MPs & MLA’s) is produced herewith as Annexure A14.
This notice was served on the Appellant on 19.6.2024. It is submitted that
the proceeding initiated under Sec.14 of the Act is also vitiated as the entire
proceeding from the notice under Sec. 13(2) and the action taken under Sec.
13(4) of the Act is illegal. Therefore the action taken under Sec 14 is also
liable to be set aside.

(19B) The allegations made in the written statement filed by the defendant
bank are not correct and are denied. The allegation that the Appellant had
requested for sanction of further credit facility in 2016 and therefore a loan
was sanctioned to the Appellant and his wife vide loan Account No.
50200019986166 is not correct and is denied. This Appellant has not taken
any such loan. The alleged sanction letter dated 10.6.2016 is not correct and
is denied. There is no signature of the Appellant in the document produced
as Annexure D2 in the written statement. There is no security interest of the
Appellant’s properties created for this alleged loan. The signature of Mrs.
Anniamma Johny shown in Annexure D2 document is not correct. That is a
concocted and forged signature.

(19C) Likewise, the signatures contained in the document produced as

Annexure D3 are not correct. The signatures seen in the document produced
as Annexure D3 and are not the signatures of the Appellant and his wife.
These are concocted and forged signatures.

(19D) The allegation that equitable mortgage of the properties made in 2014
was extended to all the subsequent loan accounts of the Appellant is not
correct and is denied. The Appellant has only availed the loan facility of Rs.
One Crore in 2014 which was later enhance to Rs. Two Crore Ten lakhs as
per sanction letter dated 28.2.2017. The Appellant has not availed any other
loan nor has he has agreed to extend the mortgage of property or creation of
security interest of his properties to any other loan as alleged.
(19E) The further allegation that the defendant bank was pleased to grant an
additional limit on the cash credit based on the request of the Appellant due
to adverse impact of Covid 19 pandemic is not correct and is denied. The
Appellant has not availed any KGC Term Loan of Rs. 26,74,913/- as
alleged. The allegation that the defendant bank had duly rendered support to
the Appellant during Covid-19 pandemic by way of another loan of Rs.
26,74,913/- in 2020 vide loan account No. 8779981 is not correct and is
denied. The Appellant has not availed any such loan. The allegation that
the RBI had issued guidelines dated 11.2.2020 and 6.8.2020 mandating
assistance without requirement of entering into a separate loan agreement
and hence no agreement was executed between the Appellants and defendant
bank for the additional amounts sanctioned is not correct and is denied.
There is no such guideline issued by the Reserve Bank of India.

(19F) The Appellant has not availed KGC Cash Credit Facility of Rs.
1,00,000/- in 2016 and KGC Term Loan of Rs. 26,74,913/- in 2020 as
alleged in the written statement and the properties of the Appellant has not
been mortgaged or created any security interest for the said disputed loans.
The allegation that the defendant bank had supported the Appellant
throughout the pandemic is not correct and is denied.

(19G) No such amount as alleged by the bank is due from the Appellant to
the bank. The computation made by the bank is disputed. There is
capitalisation of interest and interest on interest is charged.

(19H) Annexure A5 notice itself says that it is a notice under Section 13(4)
of the SARFAESI Act. The Appellant has not come across the paper
publications produced as Annexure D4 and D5 and hence the same is
denied.

(19I) The allegation that the defendant bank had registered the mortgaged
property with Central Registry is not known to the Appellant and hence the
same is denied. The document produced as Annexure D6 is not known to
the Appellant and the correctness of the same is disputed and denied. At any
rate Annexure D6 document only shows creation of security interest for
Rupees One Crore only in 2014 and the rectification transaction dated
14.2.2024 is nothing but a manipulation in the said documents as an
afterthought. There is no transaction or rectification in the year 2024 and
such an entry is made only after filing of this case and raising the disputes.

(19J) The allegation that there is no bar to proceed with recovery against the
residential property of the Appellant is not correct and is denied. The legal
principles of pre-emptive right over residential premises apply here also.
There are other properties that can be proceeded against by the bank without
disturbing the residence of the Appellant and his family members. The
Appellant is invoking the right of pre-emption over the residential building
of the Appellant and submits that when other properties are available to
realise the mortgage amount the bank has to respect the residence of the
Appellant and his family and proceed against the other properties or part
thereof as may be required to satisfy the mortgage dues.

(19K) The valuation given in Annexure D7 is not correct and is denied.

 (19L) The agreements alleged to be made in favour of the defendant in 2016
and 2017, produced as Annexure D8 and D9 are not correct and are denied.
The Appellant and his wife have not executed any such agreement in 2016
and 2017. The signatures contained in the document produced as Annexure
D8 and Annexure D9 are not the signatures of the Appellant or his wife.
These signatures are concocted and forged. The execution of documents
produced as Annexure D8 and D9 is denied. Annexure D8 as well as D9
does not contain any date or details of the alleged loan for which the same is
alleged to be executed.

(19M) The statement produced as Annexure D10 is incomplete and contains

only one entry and that too only after the date of notice under section 13(2) of
the SARTFAESI Act. It is an incomplete document that cannot be relied upon.
The Appellant has not availed any loan as stated in Annexure D10. So also the
statement produced as Annexure D11 is an incomplete document and cannot
be relied upon. Annexure D11 statement is for the period after Sec. 13(2)
notice and the same is incomplete and cannot be relied upon. Annexure D12
statement also is disputed and denied. No such loan has been availed by the
Appellant. The source of the alleged credit is not known. Appellant has not
availed any such amount as alleged. So also, the Appellant has not received
the document procured along with Annexure D12. The Appellant has not
received any such letter as produced along with Annexure D12. The
Document as produced is incomplete and the bottom portion has been
apparently masked while taking photocopy and remnants of the masked
portion can be seen. D10, D11 and D12 statement are disputed and are
denied.”
20. The Appellant submits that the Appellant filed IA No.3087/2024 in
S.A.No.580/2023 praying to direct the defendant to produce the original of
Annexure –D2 sanction letter dated 10.06.2016, Annexure D3 sanction letter
dated 27.02.2017, Annexure D9 agreement and Annexure D13 schedule dated
20.06.2016 and annexure D8 and send disputed documents to a handwriting
expert, attached to the Director, Forensic Science Laboratory, Kerala Police
Department , Trivandrum or such other expert as may decided by this Tribunal
for comparing the signatures of the Appellant and his wife Aniamma Johny
 with the disputed signatures and to report their opinion as to whether the
disputed signatures are put by the Appellant and his wife or not.

21.The Appellant submits that the above Petition has been dismissed vide order
dated 26.11.2024 without considering grounds and points raised by the
Appellant. Therefore the entire proceedings are illegal and therefore it is clear
that there is mistake in the possession notice and there is illegality and hence
the entire proceedings are illegal and against the law. Therefore the entire
securitization proceedings are illegal, arbitrary, unjust and against law. True
copy of the Securitization Application No.580/2023 pending before the Debt
Recovery Tribunal I at Ernakulam is produced here with. True copy of the
Petition in I.A.No.3087/2024 in S.A.No.580/2023 is produced here with. True
copy of the Order dated 26.11.2024 in I.A.No.3087/2024 in S.A.No.580/2023
is produced here with.

22. The appellants hence prefer this Memorandum of Appeal against the
order/proceeding dated 26.11.2024 in I.A.No.3087/2024 in S.A. No.580/2023
of Debt Recovery Tribunal-I, at Ernakulam on the following among other:

GROUNDS

A. The impugned the order/proceeding dated 26.11.2024 in I.A.No.3087/2024

in S.A. No.580/2023 of Debt Recovery Tribunal-I, at Ernakulam, is
contrary to the law, well established legal principles and also contrary to
the facts and circumstances of the case. The impugned order is
unsustainable in law and liable to be set aside.

B. The impugned order/proceeding dated 26/11/2024 in I.A.No.3087/2024 in

S.A. No.580/2023 of Debt Recovery Tribunal-I, at Ernakulam suffers from
serious legal infirmities. Even though the appellants have raised valid and
legal grounds Securitization Application as well as in Petition, the only
finding of the learned Presiding Officer of DRT-I Ernakulam is that the
learned tribunal holds that no prima facie case is made out so as to relief
prayed for by the petitioner.
C. The Tribunal below ought to have held that the proceedings initiated by
the respondent are against the well settled principles of law, and vitiated by
errors on the face of record. Annexure –D2 sanction letter dated
10.06.2016, Annexure D3 sanction letter dated 27.02.2017, Annexure D9
agreement and Annexure D13 schedule dated 20.06.2016 and annexure D8
and send disputed documents to a handwriting expert, attached to the
Director, Forensic Science Laboratory, Kerala Police Department ,
Trivandrum or such other expert as may decided by this Tribunal for
comparing the signatures of the Appellant and his wife Aniamma Johny
with the disputed signatures and to report their opinion as to whether the
disputed signatures are put by the Appellant and his wife or not.

D. The Tribunal below ought to have held that the entire proceedings initiated
by the respondent under the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 against the
appellant are vitiated by gross irregularities and patent improprieties.

E. The Tribunal below ought to have held that the entire proceedings initiated
by the respondent under the SARFAESI Act against the appellants are
vitiated by gross irregularities and patent improprieties. The Possession
Notice under Section 13(4) of the SARFAESI Act shall give details of the
secured assets intended to be enforced by the secured creditor in the event
of non-payment of secured debts by the borrower. In the circumstances, the
Tribunal below ought to have held that all the proceedings under the
SARFAESI Act is illegal and liable to be set aside.

F. The respondents have adopted a procedure which is totally violative of the

SARFAESI Act and the Rules in force. The respondents cannot take
benefits of their own wrong actions and put the Appellants to peril. The
strict interpretation applicable in the case of penal and fiscal statutes must
apply in the case of SARFAESI Act as well. There is absolutely no scope
for any liberal interpretation in the case of implementation of a statute
which is exceptionally harsh. The victim is entitled to the full benefit in the
case of even a fractional aberration. In the decision reported in 2014 (3)
 SCC 502 Dipak Babaria and Another vs. State of Gujarat and others, the
Supreme Court reemphasizing the Taylors Rule held that if a matter is to
be done and in any particular manner, it shall be done in that manner only.
The Hon’ble Supreme Court of India in the decision reported in 2012 (11)
SCC 511 in Ram Kishun V/s State of UP in paragraph 14 has held that a
right to hold the property is a constitutional right as well as a human
right. A person cannot be deprived of his property except in accordance
with the provisions of statute. The Hon’ble Supreme Court of India had
occasion to consider the need for absolute compliance of the provisions of
the SARFEASI Act and the Rules as evident from the decision reported in
2014 (2) KLT 61 (SC) Mathew Varghese vs. Amritha Kumari.

G. The Hon’ble High Court of Kerala in Jimmy Thomas Vs. Indian Bank has
held that interim order passed by the Debt Recovery Tribunal under
Section 17 of the SARFAESI Act 2002, cannot be issued mechanically and
without application of mind doing so would amount to failure on the part
of the tribunal in proper and Judicious Exercise of the Jurisdiction vested
in it. The Honourable Court also observed that “while passing an interim
order under Section 17 the Tribunal must prima facie appreciate the
contentions of the parties on merit and apply the well settled principles of
i) strong prima facie case; (ii) balance of convenience; and (iii) irreparable
injury. It is submitted that these principles must necessarily guide
Courts/Tribunals in the matter of granting or refusing interim relief. The
Tribunal below, while passing the impugned order has not followed the
said decision of the Hon’ble High Court.

H. Manifest prejudice and injury is suffered by the appellant by reason of the

willful acts and omissions attributable to the respondent. In the interests of
justice and to uphold the majesty of law, it is absolutely necessary to allow
the above appeal with costs .The appellant further reserves his right to raise
such additional grounds as may be required and considered in a later date
and also seek to refer to all oral submissions at the time of hearing of the
appeal.
 For these and for such other reasons to be argued at the time of hearing, it is
most humbly prayed that this Hon’ble Appellate Tribunal may be pleased to
grant the following reliefs.

VI RELIEF’S SOUGHT
In view of the facts mentioned in paragraph 5 above and the grounds urged
in the above appeal, the appellant prays that this Hon’ble Debt Recovery
Appellate Tribunal may be pleased to grant following reliefs;

i) To set aside the order/proceeding dated 26/11/2024 in I.A.No.3087/2024

in S.A. No.580/2023 on the file of Debt Recovery Tribunal-I, Kerala at
Ernakulam and consequentially and allow the said I.A.No.3087/2024 in
S.A.No.580/2023 on the file of the Debt Recovery Tribunal –I, Kerala at
Ernakulam filed by the appellants and thus render justice.

ii) Award the cost of this proceedings and

iii) Grant such other relief as may be prayed for from time to time.

VII. INTERIM ORDER, IF PRAYED FOR:

The appellant states that the Appellant have a good and meritorious case in
the above appeal. The appellant have a prima facie case and the balance of
convenience is also in their favour. It is therefore prayed that this Hon’ble
Appellant Tribunal may be pleased to stay all coercive steps to pursuant to
order dated 26/11/2024 in I.A.No.3087/2024 in S.A. No.580/2023 on the file
of Debt Recovery Tribunal-I, at Ernakulam pending disposal of the above
appeal and pass such other orders as this Hon’ble Appellate Tribunal may
deem fit and proper in the circumstances of the case. If an interim order as
prayed for is not granted the appellant would be put to serious hardships and
irreparable loss.

VIII. MATTER NOT PENDING WITH ANY OTHER COURT, ETC.:

The appellants further declare that matter regarding which this appeal
has been made is not pending before any Court of law or any other authority
or any other Tribunal.
IX. PARTICULARS OF BANK DRAFT/POSTAL ORDER IN RESPECT
OF DEPOSIT OF DEBTS DUE IN TERMS OF SUB-SECTION (1) OF
SECTION 18 OF THE ACT

1. Name of the bank on which drawn

2. Demand Draft Number filed separately
Or
1. Number of Postal Orders(s)
2. Name of issuing Post Office
3. Date of issue of Postal Order(s)
4. Postal office at which payable

X. PARTICULARS OF BANK DRAFT/POSTAL ORDER IN RESPECT

OF FEE PAID IN TERMS OF RULE 13 OF THESE RULES

1. Name of the bank on which drawn.

2. Demand Draft Number
Or
1. Number of Postal Orders(s)
2. Name of issuing Post Office
3. Date of issue of Postal Order(s)
4. Postal office at which payable

XI. DETAILS OF INDEX

An Index in duplicate containing the details of the documents to be

relied upon is enclosed.

XII. LIST OF ENCLOSURES

i) Vakalath
ii) Bharatkosh Transaction Receipt.
iii) Documents as per Index.

DATED CHENNAI THIS THE 20TH DAY OF DECEMBER,

2024.
 COUNSEL FOR THE APPELLANT APPELLANT

VERIFICATION
I, Johny Mathew, aged 64 years, S/o. late A. J. Mathew, Arambankudy House,
Nadukany P.O., Keerampara, Kothamangalam, Ernakulam District, Pin- 686691
having temporarily come down to Chennai do hereby verify that the contents of
paragraphs 1 to XII are true to our personal knowledge and belief and that we have
not suppressed any material facts.
DATED CHENNAI THIS THE 20TH DAY OF DECEMBER 2024.

Appellant

BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL,

CHENNAI

I A NO. OF 2024
IN
M.A NO. OF 2024

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691. …Petitioner/APPELLANT
Vs
M/s. HDFC Bank Ltd.,
Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer. ---RESPONDENT / RESPONDENT
 AFFIDAVIT

I, Johny Mathew, aged 64 years, S/o. late A. J. Mathew, Arambankudy House,

Nadukany P.O., Keerampara, Kothamangalam, Ernakulam District, Pin- 686691,
having temporarily come down to Chennai, do hereby solemnly affirm and state
as follows:-

1. I am the appellant in the above Appeal. I am conversant with the facts

of the case. I am competent to swear this affidavit. I am swearing this
affidavit on my behalf.

2. I submits that the above Appeal has been filed to set aside the order
dated 26/11/2024 in I.A.No.3087/2024 in S.A. No.580/2023 on the file
of Debt Recovery Tribunal-I, at Ernakulam. I crave leave of this
Hon’ble Tribunal to refer the Appeal for further details.

3. The appellants herein are the Appellant and respondent herein are the
defendants in S.A.No.580/2023 on the file of Debt Recovery Tribunal-I,
Kerala at Ernakulam. The said SA was filed challenging the
proceedings initiated by the respondent under the SARFAESI Act. The
appellants are aggrieved by the arbitrary dismissal of petition filed
forpraying to direct the defendant to produce the original of Annexure –
D2 sanction letter dated 10.06.2016, Annexure D3 sanction letter dated
27.02.2017, Annexure D9 agreement and Annexure D13 schedule dated
20.06.2016 and annexure D8 and send disputed documents to a
handwriting expert, attached to the Director, Forensic Science
Laboratory, Kerala Police Department , Trivandrum or such other
expert as may decided by this Tribunal for comparing the signatures of
the Appellant and his wife Aniamma Johny with the disputed signatures
and to report their opinion as to whether the disputed signatures are put
by the Appellant and his wife or not. It is submits that the learned
presiding officer of DRT I Ernakulam failed to found while considering
the petition.

4. The Appellant, who is an agriculturist of pineapple, had availed an

agriculture credit overdraft cash credit facility from the Kothamangalam
 Branch of the defendant bank on 8.10.2014 for Rs. 1 Crore. This
agriculture overdraft was later enhanced to Rs. 1.75 Crores on
31.10.2015. Subsequently this overdraft was enhanced to Rs.
2,10,00,000/- (Rupees Two Crore Ten Lakhs) as per Sanction Letter
dated 28.2.2017.

5. The Appellant’s daughter had suffered a renal failure and had to

undergo renal transplant surgery in July 2016. A true copy of the
Discharge Summary for discharge on 25.7.20216 issued by P.V.S.
Memorial Hospital is produced as Annexure A1. The Appellant had to
expend nearly about 50 Lakhs for the surgery and related expenses for
treatment of his daughter. The treatment has to continue lifelong to
prevent rejection of the transplanted kidney. True copy of the medical
certificate dated 20.09.2023 issued by Dr. Georgy K. Ninan, Senior
Consultant Nephrologist is produced as Annexure A2.

6. Apart from the above set back, the Appellant suffered huge loss during
the Covid-19 pandemic. The agriculture produce could not be plucked
and processed and he had to expend large amounts to clear the fields as
the fruit decayed.

7. Due to the economic problems caused by the pandemic, the overdraft

facility granted to the Appellant could not be kept within the limit.
When the interest was capitalised by the defendant bank the overdraft
facility had exceeded the limit.

8. At this juncture the defendant bank unilaterally presented a cheque for

Rs. 1,75,00,000/- (Rupees 1.75 Crore) from the overdraft account of
the Appellant in its branch at Kozhikode. The Appellant had not issued
the said cheque for that amount. This cheque was presented by the
defendant bank at Kozhikode to illegally compel and coerce the
Appellant.

9. Upon receipt of the notice for dishonour of cheque which was served on
the Appellant on 10.3.2020 the Appellant had approached the bank for
regularising the overdraft facility and for renewal of the same and he
 had made deposits on 14.2.2020, 24.2.2020, 6.3.2020, 16.3.2020 and
20.3.2020 and the overdraft facility was brought within limits. Thus as
on 20.3.2020, i.e., within 15 days of receipt of the dishonour notice, the
overdraft was brought down to Rs. 2,09,98,463.79 i.e., within the limit
of Rs. 2 Crore Ten Lakhs. Despite this the Bank has illegally filed a
complaint against the Appellant before the Court of Special Judicial
First Class Magistrate (N.I. Act Cases) Kozhikode as CMP 801/2021,
which is being defended by the Appellant. The said complaint is an
abuse of process of law.

10.While so the defendant bank issued notice dated 25.5.2022 under Sec.
13(2) of the Act claiming total of Rs. 2,99,59,528/- out of three loans. A
true copy of the notice dated 25.5.2022 under Sec. 13(2) of the Act is
produced as Annexure A3.

11.Ann.A3 notice was issued to three persons clubbing three loans and was
vague. It was a notice with compounded allegations. The Appellant
along with other two persons had caused to issue a reply notice dated
30.7.2022 through a counsel inter alia denying the liability and
disputing the correctness of the action taken by the bank to make the
loan as NPA and to take action under the Act. True copy of reply notice
dated 30.7.2022 is produced as Annexure A4.

12.The defendant bank issued a reply dated 17.8.2022 holding that there is
no abuse of provisions in the action initiated under the Act. The
defendant thereafter issued notice dated 13.9.2023 under Sec. 13(4) of
the Act demanding to hand over 10 cents of residential property of the
Appellant on 21.9.2023, a true copy of which is produced as
Annexure A5. Ann.A5 notice was served on the Appellant only on
16.9.2023.

13.Without giving sufficient time to the Appellant the defendant bank has
again issued notice dated 21.9.2023 for taking symbolic possession of
the residential house of the Appellant under Section 13(4) of the Act by
registered post which the Appellant has received on 23.9.2023. A true
 copy of the notice dated 21.9.2023 for taking symbolic possession of
the residential house of the Appellant is produced as Annexure A6.

14.It is submitted that Ann. A3, A5 and A6 notice and proceedings are
vitiated on several grounds. It is a compounded proceeding against
three persons combining several alleged loans for which the Appellant
is not answerable and security interest is not created by his property.
There is serious dispute against the amounts alleged to be due in the
said notices. This apart there are four other properties other than the
residential house of the Appellant given as security for the cash credit
overdraft facility, which properties will more than suffice to tide over
the alleged liability to the bank. The bank cannot take draconian
proceedings to oust the Appellant and his family from their residential
house without taking recourse to recover the liability for other
properties given.

15.It is submitted that the only loan that the Appellant has taken is the
agriculture credit overdraft cash credit facility of Rs.2,10,00,000/-
(Rupees Two Crore Ten Lakhs) as per Sanction Letter dated 28.2.2017.

16.The Appellant has not taken Cash Credit facility with loan account No.
50200019986166 of Rs. 1,00,000/- as stated in Ann. A4 notice. No
Sanction Letter is issued for the said alleged loan. The Appellant is
neither the borrower nor the guarantor of the said loan and the property
of the Appellant has not been kept as a security for the said loan. The
alleged dues of this loan count not have been clubbed with the claim to
proceed against the security interest created for the agriculture cash
credit overdraft facility of the Appellant.

17.Likewise the Appellant has not taken the Term Loan No. 8779981 for
Rs. 26,74,913/- as stated in Ann. A4 notice. The Appellant is not aware
of the said loan. No Sanction Letter is issued for the said alleged loan.
The Appellant is neither the borrower nor the guarantor of the said loan
and the property of the Appellant has not been kept as a security for the
said loan. The alleged dues of this loan count not have been clubbed
 with the claim to proceed against the security interest created for the
agriculture cash credit overdraft facility of the Appellant.

18.There are altogether five properties given as security by the Appellant

for the agriculture credit overdraft cash credit facility availed by him, as
detailed hereunder.

Sl. Document No. Sy. No. of Extent

No. Keerampara
Village.

Sale Deed No. 1906/2006 326/1C/2 40.49 Ares

(I Acre)

Sale Deed No. 5025/1988 334/4 21.6 Ares

(52 Cents)

Sale Deed No. 4650/1989 335/4/1 & 19.84 Ares

335/6 (49 Cents)

Sale Deed No. 2282/1990 335/6 1.55 Ares

and Release Deed No. (3.840 Cents)
I/8076/2008
Sale Deed No. 5958/1/1999 326/1C/1 4.05 Ares
House property. ents)

19. The fact that these documents are held by the bank agriculture credit overdraft
cash credit facility can be seen from the letters issued by the bank. True copy of
letter dated 27.5.2022 in respect of Sale Deed No. 1906/2006, Sy. No. 326/1C2 is
produced as Annexure A7. True copy of letter dated 27.5.2022 in respect of Sale
Deed No. 5025/1988, Sy. No. 334/4 is produced as Annexure A8. True copy of
letter dated 27.5.2022 in respect of Sale Deed No. 4650/1989, Sale Deed No.
2882/1990 and Release Deed No. 1/8076/2008, Sy. No. 335/4/1, 335/6 & 335/6 is
produced as Annexure A9. True copy of letter dated 27.5.2022 in respect of Sale
Deed No. 5958/1/1999, Sy. No. 326/1C/1 is produced as Annexure A10.
From the above, it can be seen that altogether five properties are given as security
by the Appellant. However the bank is now maliciously proceeding only against
the house property of the Appellant in 10 cents covered by Sale Deed No.
5958/1/1999 in Sy. No. 326/1C/1 of Keerampara Village. It is submitted that the
bank ought to proceed against the other properties given as security for liquidating
the liability without trying to oust the Appellant and his family from their
residential house. Sale of a portion of the other properties will suffice for
liquidating the liability of the Appellant. The principles embodied in Order 21 Rule
64 of CPC is applicable even for a proceeding under the SARFAESI Act. Only
such portion of the property that needs to be sold to liquidate the liability should be
brought for sale. All principles of justice, equity and good conscience mandate that
liability be realised without disturbing the residential property when there are other
properties to be proceeded against. Apart from the above the amount alleged to be
due to the bank is highly excessive. There cannot be such huge amount due
especially when the Appellant had regularized the overdraft account. This apart the
Appellant is trying to dispose another immovable property for liquidating the loan
liability and some reasonable time needs to be given to him before proceeding for
sale of his assets.

(19A) The Appellants daughter who is a renal patient is fortunately getting

married and the betrothal is fixed on 20.08.2024. An invitation card printed
for the betrothal of the Appellant’s daughter is produced as Annexure A11.
A true copy of the receipt dated 10.04.2024 for booking the auditorium for
the engagement of Appellants daughter is produced as Annexure A12. The
marriage of the Appellant’s daughter is decided to be held on 1.9.2024.
However the card for the marriage is not yet printed as the auditorium for the
reception is not yet fixed. In the meanwhile, while the above case is pending
before this Honourable Tribunal, the officials of the respondent’s bank have
contacted the Appellant and are threatening to take physical possession of
his residential building. On enquiry it is understood that the respondent
bank has filed MC 255/2024 before the Honourable Additional Chief
Judicial Magistrate (MP/MLA Court), Ernakulam for taking physical
possession of the residential house of this petitioner. As per order dated
23.5.2024 in the said proceedings an Advocate Commissioner has also been
appointed for the same. True certified copy of order dated 23.5.2024 in MC
255/2024 of Additional Chief Judicial Magistrate, Ernakulam, (Special Court
for trial of MPs & MLA’s) is produced herewith as Annexure A13. The
Advocate Commissioner in the above said MC 255/2024 has issued
registered notice dated 15.6.2024 seeking to take possession of the
petitioners residence on or after fifteen days of receipt of the notice. A true
copy of notice dated 15.6.2024 issued by the Advocate Commissioner in MC
255/2024 of Additional Chief Judicial Magistrate, Ernakulam, (Special
Court for trial of MPs & MLA’s) is produced herewith as Annexure A14.
This notice was served on the Appellant on 19.6.2024. It is submitted that
the proceeding initiated under Sec.14 of the Act is also vitiated as the entire
proceeding from the notice under Sec. 13(2) and the action taken under Sec.
13(4) of the Act is illegal. Therefore the action taken under Sec 14 is also
liable to be set aside.

(19B) The allegations made in the written statement filed by the defendant
bank are not correct and are denied. The allegation that the Appellant had
requested for sanction of further credit facility in 2016 and therefore a loan
was sanctioned to the Appellant and his wife vide loan Account No.
50200019986166 is not correct and is denied. This Appellant has not taken
any such loan. The alleged sanction letter dated 10.6.2016 is not correct and
is denied. There is no signature of the Appellant in the document produced
as Annexure D2 in the written statement. There is no security interest of the
Appellant’s properties created for this alleged loan. The signature of Mrs.
Anniamma Johny shown in Annexure D2 document is not correct. That is a
concocted and forged signature.

(19C) Likewise, the signatures contained in the document produced as

Annexure D3 are not correct. The signatures seen in the document produced
as Annexure D3 and are not the signatures of the Appellant and his wife.
These are concocted and forged signatures.

(19D) The allegation that equitable mortgage of the properties made in 2014
was extended to all the subsequent loan accounts of the Appellant is not
correct and is denied. The Appellant has only availed the loan facility of Rs.
One Crore in 2014 which was later enhance to Rs. Two Crore Ten lakhs as
per sanction letter dated 28.2.2017. The Appellant has not availed any other
loan nor has he has agreed to extend the mortgage of property or creation of
security interest of his properties to any other loan as alleged.
(19E) The further allegation that the defendant bank was pleased to grant an
additional limit on the cash credit based on the request of the Appellant due
to adverse impact of Covid 19 pandemic is not correct and is denied. The
Appellant has not availed any KGC Term Loan of Rs. 26,74,913/- as
alleged. The allegation that the defendant bank had duly rendered support to
the Appellant during Covid-19 pandemic by way of another loan of Rs.
26,74,913/- in 2020 vide loan account No. 8779981 is not correct and is
denied. The Appellant has not availed any such loan. The allegation that
the RBI had issued guidelines dated 11.2.2020 and 6.8.2020 mandating
assistance without requirement of entering into a separate loan agreement
and hence no agreement was executed between the Appellants and defendant
bank for the additional amounts sanctioned is not correct and is denied.
There is no such guideline issued by the Reserve Bank of India.

(19F) The Appellant has not availed KGC Cash Credit Facility of Rs.
1,00,000/- in 2016 and KGC Term Loan of Rs. 26,74,913/- in 2020 as
alleged in the written statement and the properties of the Appellant has not
been mortgaged or created any security interest for the said disputed loans.
The allegation that the defendant bank had supported the Appellant
throughout the pandemic is not correct and is denied.

(19G) No such amount as alleged by the bank is due from the Appellant to
the bank. The computation made by the bank is disputed. There is
capitalisation of interest and interest on interest is charged.

(19H) Annexure A5 notice itself says that it is a notice under Section 13(4)
of the SARFAESI Act. The Appellant has not come across the paper
publications produced as Annexure D4 and D5 and hence the same is
denied.

(19I) The allegation that the defendant bank had registered the mortgaged
property with Central Registry is not known to the Appellant and hence the
same is denied. The document produced as Annexure D6 is not known to
the Appellant and the correctness of the same is disputed and denied. At any
rate Annexure D6 document only shows creation of security interest for
Rupees One Crore only in 2014 and the rectification transaction dated
14.2.2024 is nothing but a manipulation in the said documents as an
afterthought. There is no transaction or rectification in the year 2024 and
such an entry is made only after filing of this case and raising the disputes.

(19J) The allegation that there is no bar to proceed with recovery against the
residential property of the Appellant is not correct and is denied. The legal
 principles of pre-emptive right over residential premises apply here also.
There are other properties that can be proceeded against by the bank without
disturbing the residence of the Appellant and his family members. The
Appellant is invoking the right of pre-emption over the residential building
of the Appellant and submits that when other properties are available to
realise the mortgage amount the bank has to respect the residence of the
Appellant and his family and proceed against the other properties or part
thereof as may be required to satisfy the mortgage dues.

(19K) The valuation given in Annexure D7 is not correct and is denied.

(19L) The agreements alleged to be made in favour of the defendant in 2016

and 2017, produced as Annexure D8 and D9 are not correct and are denied.
The Appellant and his wife have not executed any such agreement in 2016
and 2017. The signatures contained in the document produced as Annexure
D8 and Annexure D9 are not the signatures of the Appellant or his wife.
These signatures are concocted and forged. The execution of documents
produced as Annexure D8 and D9 is denied. Annexure D8 as well as D9
does not contain any date or details of the alleged loan for which the same is
alleged to be executed.

(19M) The statement produced as Annexure D10 is incomplete and contains

only one entry and that too only after the date of notice under section 13(2) of
the SARTFAESI Act. It is an incomplete document that cannot be relied upon.
The Appellant has not availed any loan as stated in Annexure D10. So also the
statement produced as Annexure D11 is an incomplete document and cannot
be relied upon. Annexure D11 statement is for the period after Sec. 13(2)
notice and the same is incomplete and cannot be relied upon. Annexure D12
statement also is disputed and denied. No such loan has been availed by the
Appellant. The source of the alleged credit is not known. Appellant has not
availed any such amount as alleged. So also, the Appellant has not received
the document procured along with Annexure D12. The Appellant has not
received any such letter as produced along with Annexure D12. The
Document as produced is incomplete and the bottom portion has been
apparently masked while taking photocopy and remnants of the masked
 portion can be seen. D10, D11 and D12 statement are disputed and are
denied.”

20. The Appellant submits that the Appellant filed IA No.3087/2024 in

S.A.No.580/2023 praying to direct the defendant to produce the original of
Annexure –D2 sanction letter dated 10.06.2016, Annexure D3 sanction letter
dated 27.02.2017, Annexure D9 agreement and Annexure D13 schedule dated
20.06.2016 and annexure D8 and send disputed documents to a handwriting
expert, attached to the Director, Forensic Science Laboratory, Kerala Police
Department , Trivandrum or such other expert as may decided by this Tribunal
for comparing the signatures of the Appellant and his wife Aniamma Johny
with the disputed signatures and to report their opinion as to whether the
disputed signatures are put by the Appellant and his wife or not.

21. The appellants hence prefer this Memorandum of Appeal against the
order/proceeding dated 12.03.2024 in I.A.No.3087/2024 in S.A. No.580/2023
of Debt Recovery Tribunal-I, at Ernakulam.

22.The further coercive steps shall be kept in abeyance to explore the

possibility for an amicable settlement,. The order passed in in
I.A.No.3087/2024 in S.A. No.580/2023 of Debt Recovery Tribunal-I, at
Ernakulam is not justifiable, in considering the nature and circumstance of the
case. In the above circumstance, the interference of this Appellate Tribunal is
inevitable to decide the matter in accordance with law. It is necessary to waive
the pre-deposit amount until this Appellate Tribunal decides the quantum of
amount to be paid as pre-deposit amount. The accompanying petition seeks to
waive the pre-deposit amount as contemplated under this Act.

Therefore it is humbly prayed that this Honorable Appellate Tribunal may be

pleased to waive - the pre deposit amount as contemplated under this Act, at the
time of filing this appeal.

Solemnly affirmed at Chennai on this the Before me

20th day of December 2024 and signed

His name in my presence Advocate Chennai

BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL,
CHENNAI

I A NO. OF 2024
IN
M.A NO. OF 2024

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691. …Petitioner/APPELLANT

Vs

M/s. HDFC Bank Ltd.,

Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer. ---RESPONDENT / RESPONDENT

AFFIDAVIT

I, Johny Mathew, aged 64 years, S/o. late A. J. Mathew, Arambankudy House,

Nadukany P.O., Keerampara, Kothamangalam, Ernakulam District, Pin- 686691,
having temporarily come down to Chennai, do hereby solemnly affirm and state
as follows:-

1. I am the appellant in the above Appeal. I am conversant with the facts of the
case. I am competent to swear this affidavit. I am swearing this affidavit on my
behalf.

2. I submits that the above Appeal has been filed to set aside the order dated
26/11/2024 in I.A.No.3087/2024 in S.A. No.580/2023 on the file of Debt Recovery
Tribunal-I, at Ernakulam. I crave leave of this Hon’ble Tribunal to refer the Appeal
for further details.

3. The Appellant herein are the Appellant and respondent herein are the defendant
in S.A.No.580/2023 on the file of Debt Recovery Tribunal-I, Kerala at Ernakulam.
The said SA was filed challenging the proceedings initiated by the respondent
under the SARFAESI Act. The appellants are aggrieved by the arbitrary dismissal
of petition filed for praying to direct the defendant to produce the original of
Annexure –D2 sanction letter dated 10.06.2016, Annexure D3 sanction letter dated
27.02.2017, Annexure D9 agreement and Annexure D13 schedule dated
20.06.2016 and annexure D8 and send disputed documents to a handwriting expert,
attached to the Director, Forensic Science Laboratory, Kerala Police Department ,
Trivandrum or such other expert as may decided by this Tribunal for comparing the
signatures of the Appellant and his wife Aniamma Johny with the disputed
signatures and to report their opinion as to whether the disputed signatures are put
by the Appellant and his wife or not. It is submits that the learned presiding officer
of DRT I Ernakulam failed to found while considering the petition.
4. The Appellant, who is an agriculturist of pineapple, had availed an agriculture
credit overdraft cash credit facility from the Kothamangalam Branch of the
defendant bank on 8.10.2014 for Rs. 1 Crore. This agriculture overdraft was later
enhanced to Rs. 1.75 Crores on 31.10.2015. Subsequently this overdraft was
enhanced to Rs. 2,10,00,000/- (Rupees Two Crore Ten Lakhs) as per Sanction
Letter dated 28.2.2017.

5. The Appellant’s daughter had suffered a renal failure and had to undergo renal
transplant surgery in July 2016. A true copy of the Discharge Summary for
discharge on 25.7.20216 issued by P.V.S. Memorial Hospital is produced as
Annexure A1. The Appellant had to expend nearly about 50 Lakhs for the surgery
and related expenses for treatment of his daughter. The treatment has to continue
lifelong to prevent rejection of the transplanted kidney. True copy of the medical
certificate dated 20.09.2023 issued by Dr. Georgy K. Ninan, Senior Consultant
Nephrologist is produced as Annexure A2.

6.Apart from the above set back, the Appellant suffered huge loss during the
Covid-19 pandemic. The agriculture produce could not be plucked and processed
and he had to expend large amounts to clear the fields as the fruit decayed.
7. Due to the economic problems caused by the pandemic, the overdraft facility
granted to the Appellant could not be kept within the limit. When the interest was
capitalised by the defendant bank the overdraft facility had exceeded the limit.

8. At this juncture the defendant bank unilaterally presented a cheque for Rs.
1,75,00,000/- (Rupees 1.75 Crore) from the overdraft account of the Appellant in
its branch at Kozhikode. The Appellant had not issued the said cheque for that
amount. This cheque was presented by the defendant bank at Kozhikode to
illegally compel and coerce the Appellant.

9.Upon receipt of the notice for dishonour of cheque which was served on the
Appellant on 10.3.2020 the Appellant had approached the bank for regularising the
overdraft facility and for renewal of the same and he had made deposits on
14.2.2020, 24.2.2020, 6.3.2020, 16.3.2020 and 20.3.2020 and the overdraft facility
was brought within limits. Thus as on 20.3.2020, i.e., within 15 days of receipt of
the dishonour notice, the overdraft was brought down to Rs. 2,09,98,463.79 i.e.,
within the limit of Rs. 2 Crore Ten Lakhs. Despite this the Bank has illegally filed
a complaint against the Appellant before the Court of Special Judicial First Class
Magistrate (N.I. Act Cases) Kozhikode as CMP 801/2021, which is being defended
by the Appellant. The said complaint is an abuse of process of law.

10. While so the defendant bank issued notice dated 25.5.2022 under Sec. 13(2) of
the Act claiming total of Rs. 2,99,59,528/- out of three loans. A true copy of the
notice dated 25.5.2022 under Sec. 13(2) of the Act is produced as Annexure A3.

11.Ann.A3 notice was issued to three persons clubbing three loans and was vague.
It was a notice with compounded allegations. The Appellant along with other two
persons had caused to issue a reply notice dated 30.7.2022 through a counsel inter
alia denying the liability and disputing the correctness of the action taken by the
bank to make the loan as NPA and to take action under the Act. True copy of reply
notice dated 30.7.2022 is produced as Annexure A4.

12. The defendant bank issued a reply dated 17.8.2022 holding that there is no
abuse of provisions in the action initiated under the Act. The defendant thereafter
issued notice dated 13.9.2023 under Sec. 13(4) of the Act demanding to hand over
10 cents of residential property of the Appellant on 21.9.2023, a true copy of
which is produced as Annexure A5. Ann.A5 notice was served on the Appellant
only on 16.9.2023.
13. Without giving sufficient time to the Appellant the defendant bank has again
issued notice dated 21.9.2023 for taking symbolic possession of the residential
house of the Appellant under Section 13(4) of the Act by registered post which the
Appellant has received on 23.9.2023. A true copy of the notice dated 21.9.2023 for
taking symbolic possession of the residential house of the Appellant is produced
as Annexure A6.

14. It is submitted that Ann. A3, A5 and A6 notice and proceedings are vitiated on
several grounds. It is a compounded proceeding against three persons combining
several alleged loans for which the Appellant is not answerable and security
interest is not created by his property. There is serious dispute against the amounts
alleged to be due in the said notices. This apart there are four other properties other
than the residential house of the Appellant given as security for the cash credit
overdraft facility, which properties will more than suffice to tide over the alleged
liability to the bank. The bank cannot take draconian proceedings to oust the
Appellant and his family from their residential house without taking recourse to
recover the liability for other properties given.

15. It is submitted that the only loan that the Appellant has taken is the agriculture
credit overdraft cash credit facility of Rs.2,10,00,000/- (Rupees Two Crore Ten
Lakhs) as per Sanction Letter dated 28.2.2017.

16. The Appellant has not taken Cash Credit facility with loan account No.
50200019986166 of Rs. 1,00,000/- as stated in Ann. A4 notice. No Sanction Letter
is issued for the said alleged loan. The Appellant is neither the borrower nor the
guarantor of the said loan and the property of the Appellant has not been kept as a
security for the said loan. The alleged dues of this loan count not have been
clubbed with the claim to proceed against the security interest created for the
agriculture cash credit overdraft facility of the Appellant.

17. Likewise the Appellant has not taken the Term Loan No. 8779981 for Rs.
26,74,913/- as stated in Ann. A4 notice. The Appellant is not aware of the said
loan. No Sanction Letter is issued for the said alleged loan. The Appellant is
neither the borrower nor the guarantor of the said loan and the property of the
Appellant has not been kept as a security for the said loan. The alleged dues of this
loan count not have been clubbed with the claim to proceed against the security
interest created for the agriculture cash credit overdraft facility of the Appellant.
18. There are altogether five properties given as security by the Appellant for the
agriculture credit overdraft cash credit facility availed by him, as detailed
hereunder.

Sl. Document No. Sy. No. of Extent

No. Keerampara
Village.

Sale Deed No. 1906/2006 326/1C/2 40.49 Ares

(I Acre)

Sale Deed No. 5025/1988 334/4 21.6 Ares

(52 Cents)

Sale Deed No. 4650/1989 335/4/1 & 19.84 Ares

335/6 (49 Cents)

Sale Deed No. 2282/1990 335/6 1.55 Ares

and Release Deed No. (3.840 Cents)
I/8076/2008
Sale Deed No. 5958/1/1999 326/1C/1 4.05
House property. Ares
ents)

19. The fact that these documents are held by the bank agriculture credit overdraft
cash credit facility can be seen from the letters issued by the bank. True copy of
letter dated 27.5.2022 in respect of Sale Deed No. 1906/2006, Sy. No. 326/1C2 is
produced as Annexure A7. True copy of letter dated 27.5.2022 in respect of Sale
Deed No. 5025/1988, Sy. No. 334/4 is produced as Annexure A8. True copy of
letter dated 27.5.2022 in respect of Sale Deed No. 4650/1989, Sale Deed No.
2882/1990 and Release Deed No. 1/8076/2008, Sy. No. 335/4/1, 335/6 & 335/6 is
produced as Annexure A9. True copy of letter dated 27.5.2022 in respect of Sale
Deed No. 5958/1/1999, Sy. No. 326/1C/1 is produced as Annexure A10.
From the above, it can be seen that altogether five properties are given as security
by the Appellant. However the bank is now maliciously proceeding only against
the house property of the Appellant in 10 cents covered by Sale Deed No.
5958/1/1999 in Sy. No. 326/1C/1 of Keerampara Village. It is submitted that the
bank ought to proceed against the other properties given as security for liquidating
the liability without trying to oust the Appellant and his family from their
residential house. Sale of a portion of the other properties will suffice for
liquidating the liability of the Appellant. The principles embodied in Order 21 Rule
64 of CPC is applicable even for a proceeding under the SARFAESI Act. Only
such portion of the property that needs to be sold to liquidate the liability should be
brought for sale. All principles of justice, equity and good conscience mandate that
liability be realised without disturbing the residential property when there are other
properties to be proceeded against. Apart from the above the amount alleged to be
due to the bank is highly excessive. There cannot be such huge amount due
especially when the Appellant had regularized the overdraft account. This apart the
Appellant is trying to dispose another immovable property for liquidating the loan
liability and some reasonable time needs to be given to him before proceeding for
sale of his assets.
(19A) The Appellants daughter who is a renal patient is fortunately getting married
and the betrothal is fixed on 20.08.2024. An invitation card printed for the betrothal
of the Appellant’s daughter is produced as Annexure A11. A true copy of the
receipt dated 10.04.2024 for booking the auditorium for the engagement of
Appellants daughter is produced as Annexure A12. The marriage of the
Appellant’s daughter is decided to be held on 1.9.2024. However the card for the
marriage is not yet printed as the auditorium for the reception is not yet fixed. In
the meanwhile, while the above case is pending before this Honourable Tribunal,
the officials of the respondent’s bank have contacted the Appellant and are
threatening to take physical possession of his residential building. On enquiry it is
understood that the respondent bank has filed MC 255/2024 before the Honourable
Additional Chief Judicial Magistrate (MP/MLA Court), Ernakulam for taking
physical possession of the residential house of this petitioner. As per order dated
23.5.2024 in the said proceedings an Advocate Commissioner has also been
appointed for the same. True certified copy of order dated 23.5.2024 in MC
255/2024 of Additional Chief Judicial Magistrate, Ernakulam, (Special Court for
trial of MPs & MLA’s) is produced herewith as Annexure A13. The Advocate
Commissioner in the above said MC 255/2024 has issued registered notice dated
15.6.2024 seeking to take possession of the petitioners residence on or after fifteen
days of receipt of the notice. A true copy of notice dated 15.6.2024 issued by the
Advocate Commissioner in MC 255/2024 of Additional Chief Judicial Magistrate,
Ernakulam, (Special Court for trial of MPs & MLA’s) is produced herewith as
Annexure A14. This notice was served on the Appellant on 19.6.2024. It is
submitted that the proceeding initiated under Sec.14 of the Act is also vitiated as
the entire proceeding from the notice under Sec. 13(2) and the action taken under
Sec. 13(4) of the Act is illegal. Therefore the action taken under Sec 14 is also
liable to be set aside.

(19B) The allegations made in the written statement filed by the defendant bank are
not correct and are denied. The allegation that the Appellant had requested for
sanction of further credit facility in 2016 and therefore a loan was sanctioned to the
Appellant and his wife vide loan Account No. 50200019986166 is not correct and
is denied. This Appellant has not taken any such loan. The alleged sanction letter
dated 10.6.2016 is not correct and is denied. There is no signature of the Appellant
in the document produced as Annexure D2 in the written statement. There is no
security interest of the Appellant’s properties created for this alleged loan. The
signature of Mrs. Anniamma Johny shown in Annexure D2 document is not
correct. That is a concocted and forged signature.

(19C) Likewise, the signatures contained in the document produced as Annexure

D3 are not correct. The signatures seen in the document produced as Annexure D3
and are not the signatures of the Appellant and his wife. These are concocted and
forged signatures.

(19D) The allegation that equitable mortgage of the properties made in 2014 was
extended to all the subsequent loan accounts of the Appellant is not correct and is
denied. The Appellant has only availed the loan facility of Rs. One Crore in 2014
which was later enhance to Rs. Two Crore Ten lakhs as per sanction letter dated
28.2.2017. The Appellant has not availed any other loan nor has he has agreed to
extend the mortgage of property or creation of security interest of his properties to
any other loan as alleged.
(19E) The further allegation that the defendant bank was pleased to grant an
additional limit on the cash credit based on the request of the Appellant due to
adverse impact of Covid 19 pandemic is not correct and is denied. The Appellant
has not availed any KGC Term Loan of Rs. 26,74,913/- as alleged. The allegation
that the defendant bank had duly rendered support to the Appellant during Covid-
19 pandemic by way of another loan of Rs. 26,74,913/- in 2020 vide loan account
No. 8779981 is not correct and is denied. The Appellant has not availed any such
loan. The allegation that the RBI had issued guidelines dated 11.2.2020 and
6.8.2020 mandating assistance without requirement of entering into a separate loan
agreement and hence no agreement was executed between the Appellants and
defendant bank for the additional amounts sanctioned is not correct and is denied.
There is no such guideline issued by the Reserve Bank of India.

(19F) The Appellant has not availed KGC Cash Credit Facility of Rs. 1,00,000/- in
2016 and KGC Term Loan of Rs. 26,74,913/- in 2020 as alleged in the written
statement and the properties of the Appellant has not been mortgaged or created
any security interest for the said disputed loans. The allegation that the defendant
bank had supported the Appellant throughout the pandemic is not correct and is
denied.

(19G) No such amount as alleged by the bank is due from the Appellant to the
bank. The computation made by the bank is disputed. There is capitalisation of
interest and interest on interest is charged.

(19H) Annexure A5 notice itself says that it is a notice under Section 13(4) of the
SARFAESI Act. The Appellant has not come across the paper publications
produced as Annexure D4 and D5 and hence the same is denied.

(19I) The allegation that the defendant bank had registered the mortgaged property
with Central Registry is not known to the Appellant and hence the same is denied.
The document produced as Annexure D6 is not known to the Appellant and the
correctness of the same is disputed and denied. At any rate Annexure D6 document
only shows creation of security interest for Rupees One Crore only in 2014 and the
rectification transaction dated 14.2.2024 is nothing but a manipulation in the said
documents as an afterthought. There is no transaction or rectification in the year
2024 and such an entry is made only after filing of this case and raising the
disputes.

(19J) The allegation that there is no bar to proceed with recovery against the
residential property of the Appellant is not correct and is denied. The legal
principles of pre-emptive right over residential premises apply here also. There are
other properties that can be proceeded against by the bank without disturbing the
residence of the Appellant and his family members. The Appellant is invoking the
right of pre-emption over the residential building of the Appellant and submits that
when other properties are available to realise the mortgage amount the bank has to
respect the residence of the Appellant and his family and proceed against the other
properties or part thereof as may be required to satisfy the mortgage dues.
(19K) The valuation given in Annexure D7 is not correct and is denied.

(19L) The agreements alleged to be made in favour of the defendant in 2016 and
2017, produced as Annexure D8 and D9 are not correct and are denied. The
Appellant and his wife have not executed any such agreement in 2016 and 2017.
The signatures contained in the document produced as Annexure D8 and Annexure
D9 are not the signatures of the Appellant or his wife. These signatures are
concocted and forged. The execution of documents produced as Annexure D8 and
D9 is denied. Annexure D8 as well as D9 does not contain any date or details of
the alleged loan for which the same is alleged to be executed.

(19M) The statement produced as Annexure D10 is incomplete and contains only
one entry and that too only after the date of notice under section 13(2) of the
SARTFAESI Act. It is an incomplete document that cannot be relied upon. The
Appellant has not availed any loan as stated in Annexure D10. So also the
statement produced as Annexure D11 is an incomplete document and cannot be
relied upon. Annexure D11 statement is for the period after Sec. 13(2) notice and
the same is incomplete and cannot be relied upon. Annexure D12 statement also is
disputed and denied. No such loan has been availed by the Appellant. The source
of the alleged credit is not known. Appellant has not availed any such amount as
alleged. So also, the Appellant has not received the document procured along with
Annexure D12. The Appellant has not received any such letter as produced along
with Annexure D12. The Document as produced is incomplete and the bottom
portion has been apparently masked while taking photocopy and remnants of the
masked portion can be seen. D10, D11 and D12 statement are disputed and are
denied.”

20.The Appellant submits that the Appellant filed IA No.3087/2024 in

S.A.No.580/2023 praying to direct the defendant to produce the original of
Annexure –D2 sanction letter dated 10.06.2016, Annexure D3 sanction letter dated
27.02.2017, Annexure D9 agreement and Annexure D13 schedule dated
20.06.2016 and annexure D8 and send disputed documents to a handwriting expert,
attached to the Director, Forensic Science Laboratory, Kerala Police Department ,
Trivandrum or such other expert as may decided by this Tribunal for comparing the
signatures of the Appellant and his wife Aniamma Johny with the disputed
signatures and to report their opinion as to whether the disputed signatures are put
by the Appellant and his wife or not.
21.It is submitted that the Tribunal below did not consider above factors while
considering the various aspects and so that the Interim Order passed by the DRT-
1, at Ernakulam is liable to be set aside and it is just and equal to remand the case
to the Tribunal below to pass a fair order in accordance with law, for the ends of
justice and equity. In the above circumstance, the interference of this Appellate
Tribunal is inevitable to decide the veracity of the order passed by the Honorable
Debts Recovery Tribunal-1, at Ernakulam and set aside the same for the ends of
justice and equity.

Hence, it is humbly prayed that this Honorable Appellate Tribunal may be pleased
to stay all further securitization proceedings, pursuant to Order dated 26.11.2024 in
I.A.No.3087/2024 in S.A.No.580/2023 during pendency of this Appeal, for the
ends of justice and equity.

Solemnly affirmed at Chennai on this the

20th day of December 2024 and signed
His name in my presence
Before me

Advocate Chennai
BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL,
CHENNAI

M.A No. of 2024

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691. …APPELLANT
Vs
M/s. HDFC Bank Ltd.,
Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer. ---RESPONDENT

INDEX TO TYPED SET OF DOCUMENTS RELIED ON BY THE

APPELLANT

S.No Date Description Page Nos

1. 20.12.2024 Vakalath

2. 20.12.2024 Memorandum of Appeal

3. 28.092023 Copy of SA No.580 of 2023

4. 25.07.2016 Copy of the Discharge Summary issued by P.V.S

Memorial Hospital.

5 23.09.2023 Copy of the Discharge Summary issued by Dr.

Georgy K. Ninan, Senior Consultant Nephrologist.

6. 25.05.2022 Copy of the notice under Sec. 13(2) of the Act

7. 30.07.2022 Copy of reply notice.

8. 13.09.2023 Copy of notice under Sec. 13(4) of the Act

demanding to hand over 10 Cent of residential
Property of the applicant

9. 21.09.2023 Copy of the notice for taking symbolic possession

of the residential house of the applicant

10. 27.05.2022 Copy of letter in respect of Sale Deed No.

1906/2006,Sy. No. 326/1C2

11. 27.05.2022 Copy of letter in respect of Sale Deed No.

 5025/1988, Sy. No. 334/4

12. 27.05.2022 Copy of letter in respect of Sale Deed No.

4650/1989,Sale DeedNo.2882/1990 and Release
DeedNo.1/8076/2008,Sy.No.335/4/1,335/6&

335/6

13. 27.05.2022 Copy of letter in respect of Sale Deed No.

5958/1/1999, Sy. No. 326/1C/1

14. Copy of Invitation card printed for the betrothal of

the applicant’s daughter

15. 10.04.2024 Copy of the receipt for bookking the audiorium for
the engagement of applicant’s daughter

16. 23.052024 Copy of order in MC 255/2024 of Additional Chief

Judicial Magistrate, Ernakulam, ( Special Court for
trail of MPs & MLA’s)

17. 15.06.2024 Copy of notice issued by the Advocate

Commissioner in MC 255/2024 of Additional
Chief Judicial Magistrate, Ernakulam, ( Special
Court for trail of MPs & MLA’s).

18. Copy of I.A No.3087 of 2024

19. 10.07.2024 Copy of Counter Filed by the respondent in SA

No.580 of 2023

20. 26.11.2024 Impugned Order passed in I.A.No.3087 of 2024 in

S.A.No.580 of 2023 by Hon’ble DRT-1 Ernakulam

Certified that the above copy of documents are the true copies of the respective
original documents.

DATED AT CHENNAI ON THIS THE 20th DAY OF DECEMBER 2024

COUNSEL FOR THE APPELLANT

BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL,
CHENNAI

M.A NO. OF 2024

(Against the order/proceeding dated 26/11/2024 in I.A.No.3087/2024 in S.A.

No.580/2023 on the file of Debt
Recovery Tribunal-I, Ernakulam)
Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691.
…APPELLANT
Vs
M/s. HDFC Bank Ltd.,
Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer.
---RESPONDENT

MEMORANDUM OF APPEAL FILED UNDER SECTION 18 OF THE

SECURITISATION AND RECONSTRUCTION FINANCIAL ASSETS &
ENFORCEMENT OF SECURITY INTEREST ACT, 2002

M/s. V.DEIVEEGAN
G.SANJEEVI
K.PRIYADHARSHINI
COUNSEL FOR THE APPELLANT
BEFORE THE HON’BLE DEBT RECOVERY APPELLATE TRIBUNAL,
CHENNAI

M.A NO. OF 2024

(Against the order/proceeding dated 26/11/2024 in I.A.No.3087/2024 in S.A.
No.580/2023 on the file of Debts Recovery Tribunal-I, Ernakulam)

Johny Mathew,
S/o. late A. J. Mathew,
Arambankudy House,
Nadukany P.O., Keerampara,
Kothamangalam, Ernakulam
District, Pin- 686691. …APPELLANT
Vs
M/s. HDFC Bank Ltd.,
Choice Towers, 1st Floor,
Manorama Junction,
Ernakulam South, Kochi, Pin-682016,
represented by its Authorised Officer. RESPONDENT

I, Johny Mathew, the appellant herein do hereby appoint and retain M/s.
V.DEIVEEGAN, G. SANJEEVI ,K.PRIYADHARSHINI & P.SWATHY
Advocates to appear me in the above Case and to conduct and prosecute (or
defend) the same and all proceedings that may be taken in respect of any
application/Petition connected with the same or any Judgement or order passed
therein including all applications for return of documents or the receipt to any
moneys that may be payable to me in the said Petition and also in appeal and
application for leave to the Supreme Court of India and in all applications for
review Judgement.
I Certify that the contents of this
Vakalat were read over and explained
in my presence to the executants,
who appeared perfectly to understand
the same and made their signature in my presence

Executed before me on this the 20th day of December 2024.

Accepted:
The address for service of the said advocates is at:
DRT and DRAT BAR Association,
7th Floor, Haddows Road,
Chennai :9443806123, [email protected]
COUNSEL FOR APPELANT