Petitioner challenged recovery steps under SARFAESI Act, disputing loan availing facts. Court held factual disputes require Debt Recovery Tribunal and relegate to alternate remedy, suspending proceedings temporarily.
Recovery proceedings against petitioner suspended for two weeks; petitioner directed to approach Debt Recovery Tribunal.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937
WP(C).No. 398 of 2016 (Y)
PETITIONER(S):
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ZUHARABI, AGED 50 YEARS, S/O. ABOOBAKER K., RESIDING AT CHURCH ROAD, HOSABETU, MANJESHWAR POST.
BY ADVS.SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI
RESPONDENT(S):
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THE KASARAGOD DISTRICT CO-OPERATIVE BANK LTD., (BANGARA BRANCH), KALLAI ROAD, CALICUT - 673 002, (REPRESENTED BY ITS AUTHORIZED OFFICER).
BY ADV. SRI.JAWAHAR JOSE, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 398 of 2016 (Y)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS:
//TRUE COPY//
P.S.TO JUDGE
Ms v/
A.K.JAYASANKARAN NAMBIAR, J.
W.P.(C). No. 398 of 2016
===================================================== Dated this the 29th day of January, 2016
JUDGMENT
The petitioner, who had approached this Court aggrieved by the recovery steps initiated by the respondent bank under the SARFAESI Act, for recovery of defaulted loan amounts, has a definite case that she has not availed one of the loans that is stated to have been availed by her from the respondent bank. The petitioner has raised this objection after perusing the counter affidavit filed on behalf of the respondent bank, wherein it is indicated that, apart from the housing loan of Rs.5,00,000/- , she had also availed a term loan for Rs.10,00,000/-, the details of which are given in the counter affidavit. Inasmuch as the petitioner is disputing the very availment of the loan, I am of the view that the factual dispute, is something that cannot be gone into in proceedings under Article 226 of the Constitution of India. I, therefore, relegate the petitioner to her alternate remedy of approaching the Debt Recovery Tribunal, through an application under the SARFAESI Act, against the steps taken by the respondent bank. To enable the petitioner to pursue her remedies under the SARFAESI Act, before the Debt Recovery Tribunal, I direct that the recovery proceedings initiated against the petitioner
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W.P.(C). No. 398 of 2016
shall be kept in abeyance for a period of two weeks so as to enable the petitioner to approach the Debt Recovery Tribunal in the meanwhile.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
das /29.01.2016
2 issues framed by the court
Whether a factual dispute regarding the availing of a loan by the borrower can be examined in writ proceedings under Article 226.
Whether the High Court can examine the factual dispute about loan availing during recovery proceedings under the SARFAESI Act.
2 provisions across 2 enactments
Zuharabi
The Kasaragod District Co-Operative Bank Ltd.
Ak Jayasankaran Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
