Dismissed

Tessy Tomy v. the Federal Bank Ltd.

Kerala HC14 Nov 2014WP(C)/5579/2014

Case brief

AI extract

What is this about?

Petitioners challenged bank notices under SARFAESI Act regarding loan defaults, alleging illegality. The Court held that prior sale of security property by petitioners without bank consent negated their locus standi, declining interference under Article 226.

What did the court decide?

Interference in writ petition declined; petition dismissed on the short ground of lack of locus standi.

Tessy Tomy Vs the Federal Bank Ltd. — Banking and Recovery | Kerala HC (2014)

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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 P.R.RAMACHANDRA MENON

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FRIDAY, THE 14TH DAY OF NOVEMBER 2014/23RD KARTHIKA, 1936

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WP(C).No. 5579 of 2014 (V)

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PETITIONER(S):

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

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1. TESSY TOMY, AGED 48 YEARS,

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W/O.TOMY JOSEPH, RESIDING AT EDATTU HOUSE,

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MARIYAM QUARTERS, NEAR INDIRA PETROL PUMP, THANA POST,

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KANNUR - 12.

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2. TOMY JOSEPH,

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S/O.JOSEPH, RESIDINTG AT EDATTU HOUSE,

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MARIYAM QUARTERS, NEAR INDIRA PETROL PUMP, THANA POST,

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KANNUR - 12.

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3. TINCY MOL TOMY,

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D/O.TOMY JOSEPH, RESIDINTG AT EDATTU HOUSE,

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MARIYAM QUARTERS, NEAR INDIRA PETROL PUMP, THANA POST,

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KANNUR - 12.

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BY ADVS.SRI.T.K.VIPINDAS

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SRI.K.V.SREE VINAYAKAN SRI.K.M.MUHAMMED HUSSAIN

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RESPONDENT(S):

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

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1. THE FEDERAL BANK LTD., NILESHWAR BRANCH, NILESHWAR, KASARAGOD DISTRICT - 671 123.

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2. THE AUTHORIZED OFFICER,

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STRESSED ASSET MANAGEMENT CELL,

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FEDERAL BANK ZONAL OFFICE, FEDERAL TOWERS, MAVUR ROAD,

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ARAYIDATHUPALAM, KOZHIKODE - 673016.

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3. THE PRINCIPAL SECRETARTY,

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DEPARTMENT OF PALANNING AND FINANCE,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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4. THE DISTRICT COLLECTOR,

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KASARAGOD, VIDYANAGAR P.O., KASARAGOD - 671 123.

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R1 & R2 BY ADVS.SMT.P.V.PARVATHI

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SMT.REENA THOMAS

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SRI.MOHAN JACOB GEORGE

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R3 & R4 BY GOVERNMENT PLEADER SRI.SHYSON P.MANGHUZHA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 5579 of 2014 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1:	THE TRUE COPY OF THE STATEMENT OF ACCOUNTS WITH RESPECT TO THE LOAN AVAILED BY THE IST PETITIONER FOR THE PERIOD FROM 14-09-2007 TILL 12-11-2013.
EXHIBIT P2:	THE TRUE COPY OF THE STATEMENT OF ACCOUNTS WITH RESPECT TO THE LOAN AVAILED BY THE 3RD PETITIONER FOR THE PERIOD FROM 14-09-2007 TILL 12-11-2013.
EXHIBIT P3:	THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KANNUR DATED 29-10-2013 TO THE 3RD PETITIONER.
EXHIBIT P4:	THE TRUE COPY OF THE ORDER NO 41/2013 PLANNING DATED 03-08-2013 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P5:	THE TRUE COPY OF THE ORDER NO 48/2013 PLANNING DATED 01-10-2013 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6:	THE TRUE COPY OF THE INCOME CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KANNUR II VILLAGE OFFICE DATED 30-01-2013 TO PROVE THAT THE INCOME OF PETITIONER'S FAMILY IS 1,08,000/- ONLY.
EXHIBIT P7:	THE TRUE COPY OF THE ORIGINAL SUIT NO 255/2013 FILED BY THE IST RESPONDENT BEFORE THE MUNSIFF COURT, HOSDURG.
EXHIBIT P8:	THE TRUE COPY OF THE APPLICATION DATED 29-10-2013 SUBMITTED BY THE PETITIONER ALONG WITH THE DOCUMENTS.
EXHIBIT P9:	THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS DATED 26-12-2013 AS PER SECTION 13(2) OF THE SARFAESI ACT.
EXHIBIT P10:	THE TRUE COPY OF THE NOTICE SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S.TO JUDGE.

Ms v/

P.R. RAMACHANDRA MENON, J.

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W.P.(C)No.5579 OF 2014

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Dated this the 14^th November, 2014

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J U D G M E N T

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The petitioners have approached this Court with the following prayers:

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'i) to issue a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit P9 and quash the same as illegal.

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ii) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to stop all further proceedings pursuant to Exhibit P9 during the period of Moratorium.

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iii) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to regularise the loans availed by the petitioners in case of any default.

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iv) Allow the writ petition with costs.

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v) Grant such other further reliefs which this Hon'ble Court may be pleased to direct in the facts and circumstances of the case.

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A counter affidavit has been filed on behalf of the

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respondents 1 and 2. Paragraph '2' of which reads as follows:

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W.P.(C)No.5579 OF 2014

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“It is humbly submitted that the above writ petition is not maintainable either in law or on facts. The writ petitioner has suppressed material facts and has filed this writ petition. The writ petitioner have sold the security property for the loan facilities availed from this Bank by them to one Sri Kookal Santhoshkumar and T.Rajeshwari without the permission/consent of the Bank and in violation of the terms of the agreement with the Bank. The bank has come to know of the same only when the encumbrance certificate of the security property was obtained. The said act of the writ petitioners is in effect depriving the Bank of its valuable security. They have suppressed this fact from this Hon'ble Court and is not entitled to any discretionary jurisdiction under Article 226 of the Constitution of India . The writ petition is liable to be dismissed on that short ground. The petitioners cannot be aggrieved by the securitization proceedings when the security property is sold by them to another person. The writ petitioners does not have the locus standi to challenge the proceedings to enforce the security now by the bank. ”

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3..The learned Counsel for the respondent/ Federal Bank

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W.P.(C)No.5579 OF 2014

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points out that the secured asset has been sold by the petitioners to one Kookal Santhoshkumar and T.Rajeshwari without any permission, consent or involvement of the Bank.

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In the above circumstance, this Court finds that this is not a fit case to invoke the discretionary jurisdiction under Article 226 of the Constitution of India. Interference is declined and the writ petition is dismissed

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P.R.RAMACHANDRA MENON JUDGE

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Tessy Tomy v. the Federal Bank Ltd.

Case brief

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Tessy Tomy v. the Federal Bank Ltd.

Case brief

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