Writ petition challenging bank's notice and possession action under SARFAESI Act was dismissed. The court held identity of property cannot be adjudicated in Article 226 proceedings and the petition was filed late after possession was taken.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938
WP(C).No. 21222 of 2016 (C) ----------------------------
PETITIONER:
APPUKUTTAN NAIR,
S/O.SANKARAPILLAI, LALITHA NIVAS, PANYARAKKAL ROAD, PARASUVAIKKAL PO, THIRUVANANTHAPURAM.
BY ADVS.SMT.K.P.SANTHI SRI.RILGIN V.GEORGE
RESPONDENT(S):
1. BANK OF INDIA, KATTAKKADA BRANCH, KATTAKADA, THIRUVANANTHAPURAM 695 001. REPRESENTED BY ITS CHIEF MANAGER (AUTHORISED OFFICER).
2. A.ASOKAN MAKAYIRAM, NEAR CHAKRATHIL MAHADEVA TEMPLE, THRIKKANNAPURAM PO, THIRUVANANTHAPURAM 695 032.
R1 BY ADVS. SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WPC NO 21222 OF 2016:
APPENDIX
PETITIONERS EXHIBITS:
RESPONDENTS EXHIBITS:
/TRUE COPY/
P.A.TO JUDGE
K.V.
A.M. SHAFFIQUE, J.
=============== W.P. (C) No. 21222 of 2016
==================
Dated this, the 13th day of October, 2016
J U D G M E N T
Petitioner had approached this Court challenging Ext.P4 by which steps were taken by the respondent Bank against Mr.Asokan A., calling upon him to remit the amount due to the Bank. The contention urged by the petitioner is that item No.(1) property which is mortgaged having an extent of 4.05 ares of land along with a building in Resurvey No.18/19-3 in Block No.49 of Parasuvaikkal Village, Neyyattinkara Taluk belongs to him and therefore the Bank is not entitled to take any further steps in that regard. The Advocate Commissioner is also appointed in terms of Ext.P5 order and since the petitioner's property is taken possession, this writ petition is filed.
W.P(C) No.21222/16
-:2:-
the property with the Bank and had availed loan. However, Advocate Commissioner has taken possession of the property on 8/4/2016. At that stage, petitioner had approached this Court seeking the following reliefs:-
“(i) issue a writ of certiorari or such other writ, direction or order quashing Exhibit P4 to the extent it includes the property of the petitioner covered by Exhibits P1 and P2.
(ii) issue a writ of mandamus or such other writ, direction or order compelling the 1st respondent not to take any coercive action against the petitioner's property.”
respondent wherein it is stated that the property had been identified based on document No.1360/2002 which was mortgaged by deposit of title deeds by the 2nd respondent. Ext.R1 (b) is the location certificate issued by the Village Officer based on the said documents and it is pursuant to the same that the Advocate commissioner had taken possession of the property.
W.P(C) No.21222/16
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proceedings by approaching the Debts Recovery Tribunal under Section 17 of the Act. The question involved is regarding the identity of property which cannot be adjudicated by this Court in a writ petition under Article 226 of the Constitution of India. That apart, this writ petition is filed only on 21/6/2016 much after the date of taking possession of the secured asset. However, I do not think that this Court will be justified in deciding the question as to whether the property mortgaged was the property taken possession on behalf of the respondent Bank.
Leaving open the right of the petitioner to approach the competent authority, if advisable, writ petition is dismissed.
Sd/- A.M. SHAFFIQUE, JUDGE
Rp14/10/2016
//True Copy//
P.S to Judge
3 issues framed by the court
Whether the High Court should adjudicate on the identity of mortgaged property in a writ petition challenging possession taken under SARFAESI Act.
Whether the writ petition is maintainable when filed after the bank has already taken possession of the secured asset.
Whether the question involves identity of property which courts while hearing a writ petition cannot adjudicate.
Appukuttan Nair
Bank of India, Kattakkada Branch
A.Asokan Makayiram
A.M. Shaffique
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
