Appeal against dismissal of a writ petition challenging dispossession by a bank. The Court held writ relief unavailable due to available statutory remedies under the SARFAESI Act and the appellant's failure to comply with interim orders.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
WA.No.112 OF 2020
AGAINST THE JUDGMENT IN WP(C) 31003/2019(A) OF HIGH COURT OF KERALA DATED 6.1.2020
APPELLANT/PETITIONER:
JOHNY THOMAS AGED 60 YEARS, S/O.JOSEPH, PADINJARE PARAMBIL, KALARCODE, SANATHANAPURAM P.O., ALAPPUZHA, KERALA-688 003.
BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL
RESPONDENTS/RESPONDENTS:
1 THE AUTHORISED OFFICER, SOUTH INDIAN BANK, REGIONAL OFFICE, 1ST FLOOR, REGENCY SQUARE, COLLECTORATE P.O., KOTTAYAM DISTRICT-686 002.
2 THE BRANCH MANAGER, SOUTH INDIAN BANK, PONKUNNAM BRANCH, PONKUNNAM, KOTTAYAM DISTRICT-686 506.
K.K. CHANDRAN PILLAI (SR.) S. AMBILY, SC, SOUTH INDIAN BANK
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 112/2020
2
JUDGMENT
Dated this the 23rd day of January, 2020
S. Manikumar, CJ
The appellant herein is the petitioner in W.P(C). No.31003 of 2019. Brief facts leading to writ petition are as under:
the petitioner had availed two term loans of Rs.200 Lakhs and Rs.70 Lakhs, totalling Rs.270 Lakhs from the respondent Bank. Due to nonpayment of instalments, the accounts turned as NPA on 30.6.2016. The respondent bank took possession of the mortgaged property of 27.30 Ares including the 7 storied commercial complex and issued a sale notice.
W.A. No. 112/2020
3
“A) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents not to dispossess the petitioner and the guarantor from his residential property prior to the sale of the property already taken possession by the respondent bank.
B) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to permit the petitioner to conduct a private sale of the property of 27.30 Ares covered by Ext.P1 within a priof of 6 months and close the entire outstanding balance due to the respondents.
C) issue a writ in the nature of mandamus and such other writ, direction or order commanding respondent bank to permit the petitioner to conduct the hotel which he was running prior to the taking possession of the same.”
that the petitioner will deposit an amount of Rupees One Crore within one month, in default of which, the appellant would surrender vacant possession of the residential property mortgaged with the respondent bank and that the balance amount will be paid within 60 days therefrom. The writ petition was thereafter posted for compliance on 6.1.2020.
W.A. No. 112/2020
4
the petitioner was not in a position to raise a sum of Rupees One Crore within the said time limit on 31.12.2019 and requested grant of further time. Taking into account the facts and circumstances of the case as well as the jurisdictional limitations, while dealing with case of this nature and more particularly, the opposition made by the respondents, writ court dismissed the writ petition. Being aggrieved by judgment made in W.P(C). No.31003 of 2019 dated 6.1.2020, instant appeal is filed by the borrower/petitioner on various grounds.
In United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110 - AIR 2010 SC 3413], the High Court restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Honourable Apex Court observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available,
“43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery
W.A. No. 112/2020
5
of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.”
Even though the learned Single Judge has shown leniency to the petitioner and passed an interim order on 11.12.2019, based on the undertaking made by the petitioner in his affidavit dated 10.12.2019, the petitioner did not make any payment within the stipulated time. There is no ground to interfere and the relief sought for cannot be granted.
All pending applications, if any, stand closed.
Sd/Shaji P. Chaly,
sou.
3 issues framed by the court
Whether the High Court erred in dismissing the writ petition where the alternative statutory remedies under the SARFAESI Act were available.
Whether the Court can entertain a writ petition when the petitioner failed to comply with an interim undertaking.
Whether the relief sought against dispossession of residential property is maintainable.
Colour shows how this judgement treated each authority
United Bank of India v. Satyawati Tondon and othersRelied on¶37
United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110 - AIR 2010 SC 3413] · Who else cites this
4 provisions across 2 enactments
Johny Thomas
The Authorised Officer, South Indian Bank
The Branch Manager, South Indian Bank
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
