Dismissed

Lenin Kumar, v. Authorized Officer/Assistant General Manager, Canara Bank

Kerala HC4 Mar 2024WP(C)/353/2023

Case brief

AI extract

What is this about?

Borrowers who availed a bank loan challenged SARFAESI Act possession proceedings and sought instalment relief. The court held the writ petition was not maintainable given the efficacious statutory remedy before the Tribunal, relying on Supreme Court precedent, and dismissed it while permitting them to seek an One Time Settlement with the Bank.

What did the court decide?

None; petitioners permitted to approach the Bank for further arrangement or One Time Settlement.

Lenin Kumar, Vs Authorized Officer/Assistant General… — Banking and Recovery | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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MONDAY, THE 4^TH DAY OF MARCH 2024 / 14TH PHALGUNA, 1945

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WP(C) NO. 353 OF 2023

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PETITIONERS:

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1 LENIN KUMAR, AGED 40 YEARS, S/O GEORGE, MACHANCODU PUTHEN VEEDU, KUNNATHUKAL, KARAKONAM.P.O., THIRUVANANTHAPURAM, PIN – 695504.

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2 VINITHA AGED 38 YEARS, W/O LENIN KUMAR, MACHANCODU PUTHEN VEEDU, KUNNATHUKAL, KARAKONAM.P.O., THIRUVANANTHAPURAM, PIN – 695504.

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3 PRADEEP.M. AGED 35 YEARS, S/O MOHANAN, KONNANOORKONAM, VADAKKUMKARA VEEDU, KUNNATHUKAL, THIRUVANANTHAPURAM – 695504.

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4 NISHA.P. AGED 31 YEARS W/O PRADEEP.P., KONNANOORKONAM, VADAKKUMKARA VEEDU, KUNNATHUKAL, THIRUVANANTHAPURAM, PIN – 695504.

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BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH

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W.P.(C) No.353 of 2023

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RESPONDENTS:

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1 AUTHORIZED OFFICER / ASSISTANT GENERAL MANAGER, CANARA BANK,RETAIL ASSET HUB, CIRCLE OFFICE, SPENCER BUILDING, MG ROAD, THIRUVANANTHAPURAM – 695001.

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2 BRANCH MANAGER, CANARA BANK KUNNATHUKAL, KUNNATHUKAL.P.O., THIRUVANANTHAPURAM, PIN – 695504.

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3 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM – 695001.

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4 PRINCIPAL SECRETARY DEPARTMENT OF SCHEDULED CASTE & SCHEDULED TRIBE, SECRETARIAT, THIRUVANANTHAPURAM – 695001.

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BY ADVS. HARI NARAYAN V B FAZEEN FAISAL KOMBANEZHUTH NAMRIN SHAJU

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S.GOPINATHAN, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.353 of 2023

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J U D G M E N T

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Dated this the 4^th day of March, 2024

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The petitioners, who have availed financial advance from the 1^st respondent-Canara Bank, has filed this writ petition seeking to quash Exts.P3 and P4 and to direct the respondents to allow the petitioners to pay off the arrears of monthly EMI in 30 equal monthly instalments.

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According to the Standing Counsel for the

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respondents, the total outstanding amount payable by the petitioners would be ₹15,43,122/- as on 24.01.2024.

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The petitioners have not paid the amount as

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directed by this Court on 14.11.2023, contends the Standing Counsel.

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Heard.

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It is evident that the petitioners are challenging

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Exts.P3 and P4 proceedings, which are proceedings

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W.P.(C) No.353 of 2023

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initiated under Sections 13 and 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

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The grievance of the petitioner is relating to the proceedings initiated by the respondents under Sections 13 and 14 of the Securitisation Act and the attempt of the respondents to take over and sell the secured asset provided by the petitioner.

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It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the SARFAESI Act. In United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110], the Hon’ble Apex Court declared that no writ petition shall be entertained against the proceedings initiated under the SARFAESI Act at the instance of a defaulter since the

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statute provides for an efficacious alternate remedy.

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W.P.(C) No.353 of 2023

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In the judgment in Authorised Officer, State

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Bank of Travancore v. Mathew K.C. [2018 (1) KLT 784] , the Hon’ble Apex Court reiterated that no writ petition would lie against the proceedings under the SARFAESI Act in view of the statutory remedy available under the said Act.

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9. Following the judgment in Satyawati Tondon

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(supra), a Division Bench of this Court in the judgment in Anilkumar v. State Bank of India [2020 (2) KLT 756] declined to exercise jurisdiction under Article 226 of the Constitution of India against the proceedings initiated under the Securitisation Act.

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In South Indian Bank Limited v. Naveen

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Mathew Philip [2023 (4) KLT 29], the Apex Court held that when the legislature has provided a specific mechanism for appropriate redressal, the powers conferred under Article 226 of the Constitution of India shall be exercised only in extraordinary circumstances.

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W.P.(C) No.353 of 2023

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In Jayakrishnan A. v. Union Bank of India and

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others (W.P.(C) No.30803/2023), this Court held that writ petition challenging any proceedings under the Securitisation Act is not maintainable since the aggrieved person has an effective and efficacious remedy before the Tribunal constituted under the Act which is competent to adjudicate the issues of fact and law, including statutory violations.

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In the light of the categorical pronouncements of

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law made by the Apex Court and by this Court, the above writ petition is not maintainable and it is dismissed. It will be open for the petitioners to approach the Bank for any further arrangement / One Time Settlement in the matter.

Sd/-

N. NAGARESH

JUDGE

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W.P.(C) No.353 of 2023

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APPENDIX OF WP(C) 353/2023

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PETITIONERS' EXHIBITS

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Exhibit P1 TRUE COPY OF WARRANT DATED 12.3.2019 AUTHORIZING THE ADVOCATE COMMISSIONER TO TAKE POSSESSION OF PROPERTY IN M.C. NO.251/2019

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Exhibit P2 TRUE COPY OF JUDGMENT DATED 10.7.2019 IN W.P.(C) NO.18557/2019 OF THIS HON'BLE COURT

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Exhibit P3 TRUE COPY OF WARRANT DATED 27.9.2022 BY WHICH ADVOCATE COMMISSIONER IS APPOINTED BY CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM

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Exhibit P4

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TRUE COPY OF NOTICE DATED 24.12.2022 BY ADVOCATE COMMISSIONER TO TAKE PHYSICAL POSSESSION OF SECURED ASSET ON 10.1.2023

Lenin Kumar, v. Authorized Officer/Assistant General Manager, Canara Bank

Case brief

What is this about?

What did the court decide?

Lenin Kumar, v. Authorized Officer/Assistant General Manager, Canara Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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