ABDU P., AGED 51 YEARS, S/O. SAIDU HAJI, PWD CONTRACTOR, POOZHITHARA HOUSE, KLARI AMSOM DESOM, POST Vs. THE AUTHORISED OFFICER, THE FEDERAL BANK LTD, PALARIVATTOM BRANCH 35/37A, N.H.ROAD, PALARIVATTOM, ERNAKULAM, PIN

JUDGEMENT

(1.) Petitioner, who claims to have obtained title and possession over a piece of land through an oral gift from his father, has come up by challenging the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short), initiated against that particular property along with the other secured assets of the so-called 'donor'. It is the case of the petitioner that he and his father, being Muslims governed by the provisions of Muslim Law, are entitled to maintain a proper conveyance of the property through an oral gift.

(2.) The petitioner claims that the property in question was gifted to him by his father through an oral gift and thereafter, he put up a building in that piece of land, wherein he is residing still now. According to him, when the gift had taken effect prior to the so-called mortgage made by his father before the bank, that piece of property could not have been treated as a 'secured asset' enabling the bank to have recourse to SARFAESI proceedings against it.

(3.) According to the petitioner, the court below ought to have decided the said question when it was specifically raised by him before the court below prior to the passing of an order for taking possession of the property. The learned counsel for the petitioner has argued that when such a question was mooted before the court below, it was incumbent on the court below to decide the said question first, and that the observation made by the court below that the court below could not go into that question, is not well founded.