Dismissed

Mrs. Staly. S v. the Authorized Officer

Kerala HC6 Mar 2024WP(C)/445/2024

Case brief

AI extract

What is this about?

A borrower challenged demand and possession notices issued by the State Bank of India under the SARFAESI Act, seeking quashing and instalment facilities. Following Supreme Court and Division Bench precedent holding that no writ lies against such proceedings given the statutory remedy before the Tribunal, the writ petition was dismissed as not maintainable.

What the court decided

AI extract

Mrs. Staly. S Vs the Authorized Officer — 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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WEDNESDAY, THE 6TH DAY OF MARCH 2024/16TH PHALGUNA, 1945
WP(C) NO. 445 OF 2024

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PETITIONER:

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MRS. STALY. S

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AGED 38 YEARS, PALLIKKAVILKIZHAKKATHIL
MALIBHAGOM CHAVARA SOUTH KOLLAM,
PIN – 691 584.

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BY ADVS.

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P.R.MILTON
HARISANKAR S.

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RESPONDENT:

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THE AUTHORIZED OFFICER
STATE BANK OF INDIA, RAPC KOLLAM,
1ST AND 2ND FLOOR , RAVI'S ARCADE,
NEAR IRON BRIDGE KOLLAM, PIN – 691 013.

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BY ADV
JAWAHAR JOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C) No.445 of 2024

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JUDGMENT

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Dated this the 6^th day of March, 2024

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The petitioner, who has availed a financial

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advance from the State Bank of India, has approached this Court seeking the following reliefs:

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(i) to issue a mandamus or any other appropriate writ order or direction to call for the records relating to issue of Ext.P1 demand notice and Ext.P2 possession notice and set aside the same are illegal and unsustainable.

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(ii) to call for the records relating to issue of Ext.P4 letter issued by the respondent and direct the respondent to consider and pass appropriate orders in Ext.P3 request of the petitioner by granting installment facilities for paying the overdue amount along with the regular EMI.

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(iii) dispense with production of English translation of vernacular documents.

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(iv) such other appropriate order or directions as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.

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(v) To allow the writ petition with costs.

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2. When this writ petition came up for admission on

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22.01.2024, this Court passed an interim order to the

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W.P.(C) No.445 of 2024

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following effect:

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“There will be an interim order directing the petitioner to pay an amount of Rs.5 lakhs within a period of one month and a further amount of Rs.5 lakhs within a further period of one month. If the petitioner remits the amounts as directed above, coercive proceedings pursuant to Ext.P2 shall stand deferred for a period of two months.”

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Standing Counsel representing the respondent

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submits that the petitioner has not made the payment as directed by this Court.

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Perusal of the pleadings would indicate that the petitioner is in effect challenging the proceedings initiated by the respondent under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

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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

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W.P.(C) No.445 of 2024

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: 4 :

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SARFAESI Act at the instance of a defaulter since the statute provides for an efficacious alternate remedy.

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In the judgment in Authorised Officer, State 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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Following the judgment in Satyawati Tondon (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 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.445 of 2024

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: 5 :

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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.

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Sd/- N. NAGARESH JUDGE

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AMR

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W.P.(C) No.445 of 2024

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APPENDIX OF WP(C) 445/2024

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PETITIONER’S EXHIBITS

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Exhibit P1TRUE COPY OF THE DEMAND NOTICE ISSUED
BY THE RESPONDENT BANK DATED
16/08/2023.

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Exhibit P2TRUE COPY OF THE POSSESSION NOTICE
ISSUED BY THE BANK, TO THE PETITIONER
AND HER HUSBAND DATED 20/11/2023.

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Exhibit P3TRUE COPY OF LETTER SUBMITTED BY THE
PETITIONER AND HER HUSBAND BEFORE THE
BANK DATED 22/11/2023.

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Exhibit P4

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TRUE COPY OF REPLY LETTER ISSUED BY
THE BANK ON 27/11/2023 TO THE
PETITIONER AND HER HUSBAND.

Mrs. Staly. S v. the Authorized Officer

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Mrs. Staly. S v. the Authorized Officer

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