Allowed

Sebastian v. the Authorized Officer, Wayanad District

Kerala HC9 Apr 2024WP(C)/5089/2018

Case brief

AI extract

What is this about?

Writ petition against SARFAESI demand and possession notices. The loan was declared NPA on 16.4.2004 but the Section 13(2) notice was issued only in November 2017, beyond the 12-year limitation period under Article 62 of the Limitation Act applicable via Section 36 of the Securitization Act. The Court declared the proceedings without jurisdiction and set aside Exhibits P4 and P5.

What did the court decide?

Proceedings under the Securitization Act declared without jurisdiction; possession notices Exts.P4 and P5 set aside; no costs.

Sebastian Vs the Authorized Officer, Wayanad District — 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 EASWARAN S.

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TUESDAY, THE 9^TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946

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WP(C) NO. 5089 OF 2018

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PETITIONER/S:

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1 MATHAI P.P., S/O PATHROSE, PUNCHAKKARA HOUSE, SEETHAMOUNT P.O., PULPPALLY, PIN - 673 579.

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2 SEBASTIAN P.M. S/O.MATHAI, PUNCHAKKARA HOUSE, SEETHAMOUNT P.O.,PULPPALLY, PIN-673 579.

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3 ROSAKUTTY

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W/O.MATHAI, PUNCHAKKARA HOUSE, SEETHAMOUNT P.O.,PULPPALLY, PIN-673 579.

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BY ADVS.

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SRI.K.PAUL KURIAKOSE

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SRI.T.A.RAFEEK CHERTHALA

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RESPONDENT/S:

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1 THE DEPUTY GENERAL MANAGER AUTHORIZED OFFICER, WAYANAD DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE: KALPETTA NORTH, P.B.NO. 7, PIN - 673 122.

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2 WAYANAD DISTRICT CO-OPERATIVE BANK LTD HEAD OFFICE: KALPETTA NORTH, P.B.NO. 7, PIN - 673 122.

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BY ADV SRI.P.P.JACOB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P. (C) No.5089 of 2018

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EASWARAN S. , J.

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W.P. (C) No.5089 of 2018

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Dated this the 9th day of April 2024

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JUDGMENT

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The present writ petition is filed by the petitioners challenging the proceedings initiated against them in terms of the

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provisions contained under Act 13(2) and 13(4) of the Secularization and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the Securitization Act’). Though notice was served on the respondents there is no representation even the matter is posted from time to time.

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The primary contention of the petitioners is that as per Ext.P1 demand notice under Section 13(2) of the Securitization Act, it is explicitly clear that the loan was declared as NPA on

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16.4.2004 whereas the demand notice was issued only on 2.11.2017.

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W.P. (C) No.5089 of 2018 3

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In terms of Section 36 of the Securitization Act, the provisions of the Limitation Act, in so far as initiation of measures are concerned, are made applicable to the proceedings. Article 62 of the Limitation Act, 1963, in turn, provides that the period of limitation of 12 years from the date on which the money under the mortgage has become due. Ext.P1 specifically shows that the loan account was declared as NPA on 16.4.2004. The indisputed fact being above, it is clear that the money became due in the year 2004. Admittedly, the initiation of Section 13(2) measures are after a lapse of 12 years. Accordingly, the measures initiated under the provisions of the Securitization Act cannot be sustained.

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In view of the fact that the initiation of measures under Sections 13(2) and 13(4) of the Securitization Act are beyond the period of limitation, this Court is inclined to exercise the extra ordinary jurisdiction under Article 226 of the Constitution of India and the facts of the case would specifically fit into exceptions mentioned by the honourable Supreme Court in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal [2014 (1) SCC

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W.P. (C) No.5089 of 2018 4

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603] which is followed by the Apex Court in Authorized Officer, State Bank of Travancode vs. Mathew K.C. [2018 (1) KHC 786 ] and further in South Indian Bank Ltd. vs. Naveen Mathew Philip [2023 (4) KLT 29].

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In view of the above, the proceedings initiated against the petitioners under the Secularization Act are declared to be without jurisdiction. Exhibits P4 and P5 are set aside. Writ petition is ordered accordingly. No order as to cost.

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Sd/- EASWARAN S. JUDGE

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W.P. (C) No.5089 of 2018 5

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APPENDIX OF WP(C) 5089/2018

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PETITIONER EXHIBITS

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EXHIBIT P1	PHOTOSTAT TRUE DATED 02.11.201	COP 7.	Y OF DEMAND NOTICE
EXHIBIT P2	PHOTOSTAT TRUE 16.11.2017 TO E THEIR LAWYER.	CO XHIB	PY OF REPLY DATED IT P-1 NOTICE THROUGH
EXHIBIT P3	PHOTOSTAT TRUE DATED 05.12.201	COPY 7.	OF REJOINDER NOTICE
EXHIBIT P4	PHOTOSTAT TRUE DATED 06.01.201	COPY 8 OF	OF POSSESSION NOTICE THE RESPONDENT-BANK.
EXHIBIT P5	PHOTOSTAT TRUE DATED 03.02.201	COPY 8 OF	OF POSSESSION NOTICE THE RESPONDENT-BANK.
EXHIBIT P6	PHOTOSTAT TRUE	COPY	OF CERTIFICATE DATED
	13.07.2016 ISS OFFICER, KRISHI	UED BHAV	BY THE AGRICULTURAL AN, MULLANKOLLY.
EXHIBIT P6(a)	PHOTOSTAT TRUE	COPY	OF CERTIFICATE DATED
	13.07.2016 ISS OFFICER, KRISHI	UED BHAV	BY THE AGRICULTURAL AN, MULLANKOLLY.

Sebastian v. the Authorized Officer, Wayanad District

Case brief

What is this about?

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Sebastian v. the Authorized Officer, Wayanad District

Case brief

What is this about?

What did the court decide?

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