Partly allowed

V.P.Ashraf v. State Bank of India & Another

Kerala HC3 Oct 2008WP(C)/20774/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging dispossession under the SARFAESI Act. The Court held that the petitioner, a defaulting guarantor in possession of secured property, has no right to delay distress proceedings. However, allowing a one-month grace period to vacate upon payment of Rs. 2 lakhs.

What did the court decide?

Petition dismissed but director allowing one month to vacate upon undertaking in writing and payment of Rs. 2 lakhs.

V.P.Ashraf Vs State Bank of India & Another — Banking and Recovery | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN

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FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930

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WP(C).No. 20774 of 2008(W)

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PETITIONER:

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-------------------

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V.P.ASHRAF, S/O.PAREEKUTTY, VALIYATHARAYIL, CHANDIROOR-688 547.

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BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS, SRI.ISAC T.PAUL.

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RESPONDENTS:

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------------------------

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1. STATE BANK OF INDIA, STRESSED ASSETS RESOLUTION CENTRE, M.G.ROAD, ERNAKULAM 682 011.REP REPRESENTED BY CHIEF MANAGER.

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2. P.A.NASEER, S/O.ABDUL KHADER, PUTHENPARAMBIL HOUSE, ELAMAKKARA, ERNAKULAM-682 026.

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ADV. SRI.K.K.CHANDRAN PILLAI FOR R1.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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THOTTATHIL B. RADHAKRISHNAN, J.

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W.P.(C).No.20774 of 2008-W

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Dated this the 3^rd day of October, 2008.

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JUDGMENT

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The second respondent availed a loan from the first respondent. An item of property belonging to the petitioner was offered as security interest for that loan. Petitioner states that the original title deeds were taken by the second respondent on the basis of an agreement for sale and that those documents were misused, resulting in the loan in question. Petitioner has filed O.S.No.213/2008 before the Sub Court, Ernakulam seeking different reliefs as regards the alleged agreement for sale. There is no shred of right for the petitioner to contend that dispossession proceedings under the SARFAESI Act should be deferred till a decision is taken in that suit or in any manner, aiding the petitioner to drag on the litigation. It is also a matter of record that after the institution of this writ petition on 9-7-2008, though this matter came up for

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consideration on three occasions for admission, even without any interim order in his favour, the petitioner continues to be in possession. It is stated that as of now, the competent Magistrate has issued orders under Section 14 to dispossess the petitioner. The total outstandings, even according to the learned counsel for the petitioner, is Rs.67 lakhs as in May, 2008. The plea of the petitioner is that the second respondent, the principal debtor and other defaulters are not being proceeded against. The petitioner is a co-obligant/guarantor. In the aforesaid circumstances, I do not find any ground to further drag on the dispossession of the petitioner.

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In the result, all contentions are rejected and the petitioner is precluded from moving the DRT or any other authority challenging the impugned action, he having sought intervention of the writ court and this writ petition is being dismissed holding that the petitioner does not have any

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right, in any manner impinging the distress action. In this situation, the learned counsel for the petitioner sought for a last opportunity by deferring actual dispossession to provide a short time limit for the petitioner to vacate. Taking into consideration that submission, this writ petition is ordered, repelling all contentions, but directing that if the petitioner undertakes before the first respondent in writing to vacate within one month, he will be permitted to continue in occupation for that period on condition that he shall, within a week from today, pay an amount of Rs.2 lakhs.

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THOTTATHIL B. RADHAKRISHNAN, Sha/041008 JUDGE.

V.P.Ashraf v. State Bank of India & Another

Case brief

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V.P.Ashraf v. State Bank of India & Another

Case brief

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