Dismissed

Sudarsan K.R., v. the Authorised Officer, Canara Bank

Kerala HC19 Nov 2021WA/1498/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ appeal challenging a judgment by the High Court's Single Judge. The Single Judge refused to quash a possession notice under SARFAESI but granted an installment facility. This Division held the impugned judgment was correct and dismissed the appeal.

What did the court decide?

The writ appeal was dismissed, upholding the learned Single Judge's order granting installment payment in lieu of quashing the possession notice.

Sudarsan K.R., Vs the Authorised Officer, Canara Bank — Banking and Recovery | Kerala HC (2021)

¶1

W. A. No. 1498 of 2021 -1-

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT

¶4

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶5

¶6

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943 WA NO. 1498 OF 2021

¶7

AGAINST THE JUDGMENT IN WP(C) 6743/2019 OF HIGH COURT OF KERALA, ERNAKULAM

¶8

APPELLANT/S:

¶9

1 SUDARSAN K.R., AGED 52 YEARS SON OF RAGHAVAN, KOCHUMALAYIL HOUSE, MINALOOR POST, MG KAVU, THRISSUR DISTRICT, PIN-680 581. 2 GEETHA SUDARSAN, AGED 45 YEARS WIFE OF SUDARSAN.K.R., KOCHUMALAYIL HOUSE, MINALOOR POST, MG KAVU, THRISSUR DISTRICT, PIN-680 581. BY ADVS. A.S.DILEEP P.BINOD SUSEELA DILEEP SUDEEP ARAVIND PANICKER

¶10

RESPONDENT/S:

¶11

1 THE AUTHORISED OFFICER, CANARA BANK, ATHANI SME BRANCH, SREE AYYAPPA BUILDING, MAIN ROAD, ATHANI, THRISSUR-680 581.

¶12

2 THE BRANCH MANAGER, CANARA BANK, ATHANI BRANCH, THRISSUR DISTRICT-680 581.

¶13

OTHER PRESENT:

¶14

SRI.V.B.HARINARAYANAN

¶15

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

W. A. No. 1498 of 2021 -2-

¶17

J U D G M E N T

¶18

Shaji P. Chaly, J.

¶19

Petitioners in the writ petition have preferred this appeal challenging the judgment of the learned Single Judge dated 12.03.2019 in W. P. (C) No. 6743 of 2019, whereby the following reliefs sought for in the writ petition were declined:-

¶20

“i) To issue a Writ of Certiorari or any other appropriate Writ, order or direction quashing Ext.P6;

¶21

ii) To issue a Writ of mandamus of any other appropriate Writ, order or direction commanding the respondents to afford installment facility to the petitioners to pay off the overdue amount in the loan account and to regularize the cash credit facility;

¶22

iii) To issue a writ of Mandamus or any other appropriate writ, order or direction directing the second respondent to properly account the amount credited by the petitioners after Exhibit P4 Judgment towards the loan account.”

¶23

The subject matter of challenge in the writ petition was the

¶24

proceedings initiated by the authorized officer of Canara Bank, Athani

¶25

W. A. No. 1498 of 2021 -3-

¶26

Branch, Thrissur under Section 13(2) of the SARFAESI Act, produced as Ext. P2 and the consequential Ext. P6 proceedings issued by the Advocate Commissioner pursuant to the orders passed under Section 14 of the Act by the Chief Judicial Magistrate Court concerned, to take possession of the property.

¶27

Learned Single Judge, after taking into account the rival submissions made across the Bar, has disposed of the writ petition in the following manner:-

¶28

“4. Taking note of the afore submissions and recording the submission of Smt.Dhanaya P. Asokan that both the afore Securitisation Applications have either been dismissed or withdrawn by the petitioners, I order this writ petition and direct the petitioners to pay an amount of Rs.10 lakhs on or before 27.03.2019; in which event, the petitioners will be permitted to pay off the balance of the aforementioned total outstanding amount, along with applicable charges and interest, in 15 equal monthly installments, commencing from 30.04.2019.

¶29

If this payment is made by the petitioners, the Bank will close the account and release the title documents with respect to the secured assets to the mortgagor/mortgagors without any further delay.

¶30

It goes without saying that if there is any default in

¶31

W. A. No. 1498 of 2021 -4-

¶32

making the payment as directed above, the benefit granted under this judgment would stand vacated and the Bank will be at liberty to recover the entire liability from the petitioners by continuing with the proceedings from the stage it is on this date.

¶33

I make it clear that the directions in this judgment are peremptory in nature and that the petitioners will have to comply with the same meticulously. I caution the petitioners that no further requests for extension or modification of this judgment, save in exceptional circumstances, will be permitted and that if the petitioners fail to comply with the directions herein, they will lose the benefit of this judgment and they will also be foreclosed from challenging the measures/proceedings taken by the Bank under the SARFAESI Act, which are impugned in this writ petition, before any other alternative Forum or Court.”

¶34

It is thus challenging the legality and correctness of the said judgment, the appeal is preferred.

¶35

The paramount contention advanced by the appellants are that

¶36

the learned Single Judge erred in directing that if the appellants fail to comply with the installment facility granted and directions issued in connection with the mode of payment, they would be foreclosed from challenging the measures / proceedings taken by the Bank under the SARFAESI Act; the judgment in so far as it forecloses the right of the

¶37

W. A. No. 1498 of 2021 -5-

¶38

appellants to seek legal recourse against the measure / proceedings initiated by the respondent before any forum / court is violative of the fundamental and other legal rights of the appellants to seek legal remedies; the relief and prayers sought for in the writ petition, being only the permission to repay the liability in installments and no adjudication on merit having been sought for, and therefore having made the blanket ban in the judgment interdicting the fundamental rights and other rights guaranteed to the petitioners under the Constitution of India to challenge before any forum or court, the propriety, legality, regularity, legal competence or maintainability of measures that may be initiated by the Bank under the SARFAESI Act, is unconstitutional, and therefore interference to the judgment of the learned Single Judge is required.

¶39

Various other contentions are also raised with respect to the notice issued under Section 14 of the SARFAESI Act seeking to evict the appellants from the premises, especially due to the notice issued by the Advocate Commissioner on the basis of the directions issued by the Chief Judicial Magistrate Court, Thrissur.

¶40

We have heard the learned counsel appearing for the

¶41

W. A. No. 1498 of 2021 -6-

¶42

petitioner Sri. A. S. Dileep, Sri. V. V. Harinarayanan appeared for the respondent Bank and perused the pleadings and material on record.

¶43

The sole question emerges for consideration is whether any interference is warranted to the judgment of the learned Single Judge.

¶44

The legal position with respect to interference in SARFAESI matters is very well settled and the Hon'ble Supreme Court in a series of judgments have held that interference with the proceedings initiated by the Banks under the SARFAESI Act, exercising the powers conferred under Article 226 is legally unsustainable.

¶45

However this is a case where the appellants have not only sought for installment facility as contended, but also has challenged the proceedings initiated under Section 14 of the SARFAESI Act. Which thus means when the main relief sought to quash Ext. P6 notice issued by the Advocate Commissioner to the petitioners directing to grant vacant possession was declined, and granted relief for payment of the money in installments, shows that the primary relief of quashing the proceedings under the Act is deemed to have been declined and it was accordingly the alternative relief of installment facility was granted. Therefore the contention advanced by the appellants that

¶46

W. A. No. 1498 of 2021 -7-

¶47

since installment facility alone was sought, the foreclosure of the rights and legal recourse by the learned Single Judge cannot be sustained.

¶48

It is clear from the judgment of the learned Single Judge that the quashing of Ext. P6 notice issued under the provisions of SARFAESI Act was declined, and on declining the same alone, the relief of installment facility was granted.

¶49

Considering the judgment of the learned Single Judge and also taking into account the fact that the appellants have withdrawn the pending applications before the Debt Recovery Tribunal as per the provisions of SARFAESI Act, it was on the basis of the same the findings were rendered foreclosing the remedy to approach the tribunal and the right for extension of time save in exceptional circumstances.

¶50

Taking into account all the legal and factual circumstances, we have no doubt in our mind that the appellants have not made out any case for interference with the judgment of the learned Single Judge there being no jurisdictional error or other legal infirmities justifiable to be interfered with in an intra court appeal filed under Section 5 of

¶51

W. A. No. 1498 of 2021 -8-

¶52

the High Court Act.

¶53

Needless to say, appeal fails. Accordingly, it is dismissed.

¶54

Sd/-

¶55

S. MANIKUMAR CHIEF JUSTICE

¶56

Sd/-