Allowed

Peraveen C.P. v. the Authorised Officer

Kerala HC13 Oct 2016WP(C)/4537/2007

Case brief

AI extract

What is this about?

The Court addressed a writ petition challenging a Section 13(4) possession notice under the SARFAESI Act issued against third parties. While noting the availability of statutory appeal under Section 17 of the SARFAESI Act, the Court accommodated the petitioner's remedy by permitting them to file an appeal before the Deuts Recovery Tribunal within one month.

What did the court decide?

The petitioner is permitted to seek remedies under Section 17 of the SARFAESI Act before the D.R.T within one month from the receipt of the judgment copy.

Peraveen C.P. Vs the Authorised Officer — Banking and Recovery | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938

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WP(C).No. 4537 of 2007 (M)

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PETITIONER(S):

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PRAVEEN.C.P. CHERUKUNNUMMEL POOTHAKANDI, P.O.KUNNAMANGALAM, KOZHIKODE.

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BY ADV. SRI.K.A.SALIL NARAYANAN

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RESPONDENT(S):

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1. THE AUTHORISED OFFICER, ZONAL MANAGER, STATE BANK OF INDIA, M.G.ROAD BRANCH, ERNAKULAM-682 011.

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2. HEMARAJAN, S/O.K.P.GOPALAN, RATNA MAHAL, KUNNAMANGALAM.

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3. K.P.AJITH KUMAR, S/O.K.P.GOPALAN, RATNA MAHAL, KUNNAMANGALAM.

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4. RATNAVALLI, W/O.K.P.GOPALAN, RATNA MAHAL, KUNNAMANGALAM.

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5. RANI BALAN, W/O.BALAN, PRATHEEKSHA, 4/57, THEKKUVEETTIL LINE, KANNUR ROAD, KOZHIKODE.

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6. LATHA HARIDAS, W/O.HARIDAS, VASISTHALAYAM, OLD RAILWAY STATION ROAD, ERNAKULAM.

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7. L.BABULALJAIN, S/O. LALCHAND, R15 NO. MANIKANDA STREET, SOUTH ARCOT, CHENNAI, TAMIL NADU.

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8. V.PADMAKUMAR, S/O.P.VELAYUDHAN NAIR, 42, 'AMRITHA' P.O. CHELAVOOR, KOZHIKODE

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WP(C).No. 4537 of 2007 (M)

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9. THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, CHATHAMANGALAM.

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R1 BY ADV. SRI.GEORGE THOMAS(MEVADA), SC, BY SRI.K.K.CHANDRAN PILLAI,SC

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R7 BY ADVS. SRI.A.T.ANILKUMAR

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SMT.V.SHYLAJA R8 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4537 of 2007 (M)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1: COPY OF THE INJUNCTION ORDER PASSED BY THE COURT OF SUBORDINATE JUDGE, KOZHIKODE IN IA 4119/2000.

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P2:	COPY OF THE AFFIDAVIT FILED IN SUPPORT OF CMP
	55/2000 BEFORE THE VACATION COURT, KOZHIKODE

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P3:	COPY OF THE COMMUNICATION FROM THE DISTRICT JUDGE,
	KOZHIKODE TO THE SUB REGISTRAR, CHATHAMANGALAM DT 2/5/2001.

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P4:	COPY OF THE	POSSESSION NOTICE PUBLISHED IN
	MATHRUBHOOMI	DAILY DT 15/12/2006 OF KOZHIKODE
	EDITION.

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.S. TO JUDGE

P.V.ASHA, J.

W.P(C) No.4537 of 2007-M

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Dated this the 13^th day of October, 2016

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JUDGMENT

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The petitioner is one of the plaintiffs in O.S.No.295/1982 on the files of the court of Subordinate Judge, Kozhikode, for partition of the plaint schedule properties therein in Kunnamangalam village of Kozhikode taluk. The petitioner submits that the 1^st respondent the authorised officer of the State Bank of India initiated proceedings for sale of the property having an extent of 95.75 cents, which is the subject matter of the suit pending before the sub court in O.S.No.295/1982, despite the fact that there was an order of injunction granted by the court, which was communicated to the 9^th respondent Sub Registrar, Chathamangalam as per Ext.P3. It is stated that the order of injunction was passed in I.A.No.4119/2000 against the respondents therein, especially respondents 2 to 6 in this writ petition not to alienate the plaint schedule property. But respondents 2 to 6 alienated the property to respondents 7 and 8 in violation of the order passed by the court pending the suit.

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W.P(C) No.4537 of 2007-M 2

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The case of the petitioner is as against Ext.P4 notice issued by the authorised officer under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (`SARFAESI Act' for short), initiated for recovery of amount due from respondents 7 and 8 who pledged the property. According to the petitioner, respondents 2 to 6, even assuming that they were to alienate the property they do not have any right over the 95.75 cents of property. Their right will be confined to only 5 cents, on the partition suit being allowed. Therefore, it is argued that the alienation effected by respondents 2 to 6 in respect of the property covered by Ext.P4 notice in violation of the order of injunction itself is in the absence of any title on the part of respondents 2 to 6 and therefore, no title would have passed to the third parties.

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The 1^st respondent has filed a counter affidavit stating that the writ petition is not maintainable before this court and the remedy of the petitioner as against the proceedings under Section 13(4) of the SARFAESI Act is by way of filing an appeal under section 17 of the SARFAESI Act, before the Debts Recovery Tribunal (`D.R.T' for short). Pointing out that any person who is aggrieved by the proceedings under Section 13(4)

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W.P(C) No.4537 of 2007-M 3

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has got a right to appeal, it is stated that the petitioner should have approached the D.R.T as provided in Section 17 of the SARFAESI Act, that under Section 17 any person (including borrower), filing an application to the D.R.T within a period of 45 days.

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I heard the learned counsel appearing on either side.

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This court has granted an interim order directing to maintain status quo as per its order dated 12.2.2007. It is only in the year 2016 that a counter affidavit was filed pointing out the alternate remedy which was available for the petitioner. The learned counsel for the respondents relies on a judgment of the apex court in United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110] giving particular reference to paragraphs 42 to 44 and paragraph 55, wherein the apex court held that the high courts should deprecate the practice of exercising jurisdiction under article 226 for passing orders resulting in adverse impact on the rights of banks and other financial institutions to recover their dues.

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As rightly pointed out by the learned counsel for the petitioner, the respondents should have raised this objection immediately on filing this writ petition.

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W.P(C) No.4537 of 2007-M 4

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However, as the statutory remedy is pointed out, though at the belated stage, it is only appropriate that the petitioner is allowed to approach the D.R.T under section 17 of the SARFAESI Act. In the above circumstances, the petitioner is permitted to seek his remedies under section 17 of the SARFAESI Act before the D.R.T and the D.R.T shall entertain the appeal, in case the petitioner submits the appeal within a period of one month from the date of receipt of a copy of the judgment. Till then, the interim order passed by this court on 12.02.2007 shall continue.

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With the above observations, the writ petition is disposed

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of.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/

Peraveen C.P. v. the Authorised Officer

Case brief

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Peraveen C.P. v. the Authorised Officer

Case brief

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