Disposed

James C. J. v. the Authorised Officer

Kerala HC5 Jul 2021WA/828/2021

Case brief

AI extract

What is this about?

In W.A. Nos. 828 of 2021, the Kerala High Court disposed of an appeal challenging an interim order directing a deposit of Rs. 1 crore to lift a stay on possession. Unable to comment on merits, the Court extended the deposit period by one month due to the appellants' inability to raise the funds. The Court allowed the appellants to expedite the main petition.

What did the court decide?

Extension of time to deposit Rs. 1 crore by one month; permission to seek expedited disposal of the main writ petition.

James C. J. Vs the Authorised Officer — Contract and Commercial Disputes | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943

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WA NO. 828 OF 2021

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AGAINST THE ORDER IN WP(C) 12924/2021 OF HIGH COURT OF KERALA, ERNAKULAM DATED 30.6.2021 APPELLANTS/WRIT PETITIONERS:

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1 JAMES C. J., AGED 64 YEARS, SON OF JOSEPH AUGUSTHY, RESIDING AT CHETTIPARAMBIL HOUSE, KARIMKUNNAM P.O., MANJAKKADAMBU, THODUPUZHA, IDUKKI DISTRICT-685586.

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2 MAREENA ENTERPRISES, GROUND FLOOR, MATHA SHOPPING ARCADE, PALA ROAD, THODUPUZHA, REPRESENTED BY ITS MANAGING PARTNER JAMES C. J.

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BY ADVS. PRAVEEN.H. G.HARIHARAN K.S.SMITHA AMAL DEV D M.V.VIPINDAS

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RESPONDENTS/RESPONDENTS:

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1 THE AUTHORISED OFFICER (APPOINTED UNDER THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002) HDB FINANCIAL SERVICES LIMITED, 2ND FLOOR, CHAITHANYA BUILDING, OPPOSITE SWAPNIL APARTMENTS, KK ROAD, KADAVANTHARA, ERNAKULAM-682 017.

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2 HDB FINANCIAL SERVICES LIMITED, 2ND FLOOR, CHAITHANYA BUILDING, OPPOSITE SWAPNIL APARTMENTS, KK ROAD, KADAVANTHARA, ERNAKULAM-682 017, REPRESENTED BY ITS AUTHORISED OFFICER (APPOINTED UNDER THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT 2002)

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3 AMAL JOSHY, ADVOCATE COMMISSIONER, MUTTOM BAR ASSOCIATION, MUTTOM COURT COMPLEX, MUTTOM, IDUKKI-685 587.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.828 of 2021

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JUDGMENT

Dated this the 5^th day of July 2021

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S.MANIKUMAR, C.J.

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Being aggrieved by the interim order dated 30.6.2021, directing the appellants/writ petitioners to deposit one crore with the HDB Financial Services Limited, Ernakulam, within a period of one week from the date of the interim order, instant writ appeal is filed.

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Mr.G.Hariharan, learned counsel for the appellants, submitted that the bank without issuing notice under Rule 8(1) and (2) of the Security Interest (Enforcement) Rules 2002, has approached the Learned Chief Judicial Magistrate for assistance to take physical possession of the property.

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Moreover, the Advocate Commissioner appointed under Section 14 of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is duty bound to serve notice on the borrower, before actual and physical dispossession. Thus, the appellant was prevented from exercising his statutory right of filing application under Section 17 of the Act.

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We are not inclined to advert to the abovesaid, for the reason

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W.A.No.828 of 2021

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that it is for the writ court to consider the same and pass appropriate orders.

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From the material on record, we find that the appellants had borrowed Rs.28,287,000/- by furnishing a security interest over the property. According to the bank, the amount outstanding as on 24.9.2020 is 31,582,863.54/-.

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Responding to the notice under Section 13(2) of the SARFAESI Act, appellants have also submitted a representation dated 14^th November 2020 under Section 13(3A) of the Act for which, the bank has sent a reply dated 25.11.2020.

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The interim prayer sought for in the writ petition is for an order restraining the respondent bank from forcibly dispossessing the appellants from the properties described in Ext.P1, unless through the due process of law.

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After adverting to the interim prayer, writ court, has granted interim stay of further steps intended to be taken by the respondents therein provided the petitioners/appellants deposits Rupees one crore within a period of one week from the date of the interim order.

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Considering the entire facts and circumstances of the case, we

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are not inclined to advert to the merits of the writ appeal extracted

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W.A.No.828 of 2021

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supra. However, taking note of the inability of the appellants to raise a huge amount, within a short time, we are only inclined to extend the time to deposit the amount as directed by the writ court by one month from today.

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It is clarified that the amount of rupees one crore, as directed by the writ court, should be deposited with HDB Financial Services Limited/second respondent within a period of one month from today.

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Appellants are permitted to request the writ court to expedite the disposal of the writ petition.

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With the above direction, writ appeal is disposed of.

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sd/S.MANIKUMAR CHIEF JUSTICE

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sd/SHAJI P. CHALY JUDGE

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jes

James C. J. v. the Authorised Officer

Case brief

What is this about?

What did the court decide?

James C. J. v. the Authorised Officer

Case brief

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