IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

FRIDAY, THE 1 ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947 OP (DRT) NO. 355 OF 2024 ORDER DATED 08.10.2024 IN IA 2579/2024 IN SA 83/2024 PETITIONER/APPLICANT:

1 MURALIDHARAN P.G., AGED 53 YEARS PULIKKAL HOUSE, KAZHIMBRAM P.O., VALAPPAD, CHAVAKKAD, PIN - 680568

2 JISSY P.S., AGED 43 YEARS W/O. MURALIDHARAN P.G., PULIKKAL HOUSE, KAZHIMBRAM P.O., VALAPPAD, CHAVAKKAD, THRISSUR-680568 BY ADVS.

SRI.VINAY MATHEW JOSEPH SRI.JOSEPH C.VARGHESE RESPONDENTS/DEFENDANT NO.1:

1 THE SOUTH INDIAN BANK LTD., REPRESENTED BY ITS MANAGER, MATHILAKAM BRANCH, THRISSUR, PIN - 686668

2 THE AUTHORISED OFFICER/CHIEF MANAGER, THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE, IRINJALAKUDA, AKP JUNCTION, IRINJALAKUDA-680125 BY ADV SMT.S.LAKSHMY THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON

01.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner challenges Ext.P5 order passed by the Debts Recovery Tribunal -2, Ernakulam, in SA No. 83/2024, whereby IA No.2579/2024 filed by the petitioner with a prayer to appoint an Advocate Commissioner to inspect and report about the nature and lie of the subject matter property, was rejected. The contention of the petitioner is that the loan was availed for an agricultural purpose, and the secured asset is also an agricultural land, and accordingly, the measures under the SARFAESI Act are not maintainable.

2. The Tribunal, after considering the rival submissions, found that from the possession notice it was clear that the land, along with the building, was mortgaged for securing the loan, and the existence of a residential house over the secured asset is admitted. The Tribunal found that the nature and lie of the secured asset at the time of creation of the security interest is relevant for adjudication of the claim, and the present status of the land could not in any way help the case of the applicant and dismissed the application through Ext.P5 order.

3. Challenging the same, the learned counsel for the petitioner submits that the additional counter affidavit filed by the respondent Bank showed that the petitioner had executed an Agreement of Hypothecation (Agricultural Advances) agreeing to hypothecate the crops, which is the primary security. The petitioner also relied on the judgment of this Court in OP(DRT) No.462/2022 dated 12.12.2023 to substantiate his contention.

4. The learned counsel for the respondent Bank contended that the crucial question is the nature of the property as on the date of creation of the secured asset, and that no purpose would be served by the report of the Advocate Commissioner at this point, namely, after nearly six years. The learned counsel also relied on the judgments of this Court in OP(DRT) Nos 216/2023, 275/2023, 392/2023 and 2023(1) KLT 739 [Rahiya v. Authorised Officer, South Indian Bank Ltd]. Most of these judgments relied on the judgment of the Honourable Supreme Court reported in 2023 KLT Online 1007 (SC) [Sreddahr v. Raus Constructions Pvt.Ltd]

5. As regards the judgment cited on behalf of the petitioner, it is clear that in those cases, the Bank itself has conceded that the respondents had extended an agricultural loan facility to the petitioner therein and that the Tribunal in that case had rejected the request on the ground that the Advocate Commissioner would not be able to file a report regarding the lie and nature of the present condition of the secured asset. This Court found that the Commissioner can very well determine the approximate age of the standing trees in the land, which in turn would be a piece of evidence indicating the existence of agriculture at the time or before the date of creation of the security interest.

6. In the instant case, the Bank has proceeded against the collateral security, the documents regarding which are produced as Anneuxres R(2) to R2(e). Annexure R2 (e ) is the letter confirming the deposit of title deeds which des