IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 2457 OF 2015
AGAINST THE JUDGMENT IN WPC 33664/2015 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 SREEKUMAR S.,
AGED 47 YEARS, S/O. SATHYADEVAN,
PRAVAVAM, S.N.PURAM, PAVITHRESWARAM P.O.,
PUTHOOR, KOLLAM-691 524.
2 VIJAYARANI V.,
AGED 40 YEARS, W/O. SREEKUMAR S.,
PRAVAVAM, S.N.PURAM, PAVITHRESWARAM P.O.,
PUTHOOR, KOLLAM-691 524.
BY ADVS.
SRI.K.SHAJ
SRI.SAJJU.S
RESPONDENTS/RESPONDENTS:
1 CATHOLIC SYRIAN BANK LTD.,
KOLLAM BRANCH, KOLLAM,
REPRESENTED BY ITS CHIEF MANAGER - 691 523.
2 THE AUTHORIZED OFFICER,
(DEPUTY ZONAL MANAGER, CATHOLIC SYRIAN BANK LTD.,
SME BRANCH, T.D.COMPLEX, CHAMAKKADA, KOLLAM,
KOLLAM DISTRICT-691 001.
SRI.R.S.KALKURA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.2457 of 2015
2
JUDGMENT
Dated this the 25th day of August, 2022 S.Manikumar, C.J.
Before the writ court, the petitioners in W.P.(C)No.33664 of 2015 have sought for the following reliefs:
"I. To call for the records leading to Exhibits P4 notice under the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and to quash the same to the extent of seeking to take possession of the property mentioned as Item No. 3 in Exhibit P1 notice;
II. To declare that the first respondent bank and second respondent are entitled to take physical possession of such part or whole of a property as is sufficient to cover the bank dues in a sale and that property mentioned as Item No.3 in Exhibit P1 notice need to be taken physical possession by the bank only if the properties mentioned as Item No. 2 and 4 in Exhibit P1 notice are not sufficient to realise the bank dues after sale of the same;
III. To issue a writ of mandamus or any other appropriate writ, order or direction to the first respondent bank and second respondent not to take physical possession of the property mentioned as Item No.3 in Exhibit P1 notice till the properties mentioned as Item No. 2 and 4 in Exhibit P1 notice are taken possession of."
W.A.No.2457 of 2015 3
2. Adverting to the rival contentions, writ court, vide judgment in W.P.(C)No.33664 of 2015 dated 04.11.2015, declined to grant the reliefs sought for. Being aggrieved, instant writ appeal is filed.
3. Record of proceedings shows that while admitting the writ appeal, a Hon'ble Division Bench of this court, on 13.11.2015, ordered thus:
"Admitted. Adv Sri. R.S.Kalkura takes notice for the respondents.
2. This writ appeal is against the judgment of the learned single Judge refusing to interfere with further measures under the provisions of the SARFAESI Act, 2002. In the earlier round, the appellants-petitioners got certain directions in their favour through Ext.P3 judgment. Those directions were not complied with. Hence, further measures were pushed through and now the appellants- petitioners are facing actual physical dispossession from residential premises.
3. Hearing the learned counsel for the appellants-writ petitioners and the learned counsel for the first respondent Bank, we notice that there are four items of property covered by the security. One item is garden land which is not liable to be proceeded under SARFAESI proceedings. Out of the other three, the factory premises, going by the submissions on behalf of the Bank, stands leased out by the appellants to somebody W.A.No.2457 of 2015 4 else and is, therefore, being operated by the lessee through workers. Ultimately, the Bank zeroed in on the residential building of the appellants; at the stage at which the proceedings have reached. We also need to bear in mind that the appellants stand invoked Article 226 of the Constitution of India, notwithstanding the fact that they had adequate efficacious remedy in the form of an appeal under the provisions of the SARFAESI Act before the Debt Recovery Tribunal. Therefore, we are of the prima facie view that it is not available in this jurisdiction to go by the niceties of principles emanating out of the provisions of the SARFAESI Act and the Rules therein and thereby interfere with the impugned proceedings. We caution ourselves from doing so because, if we venture to do it, we would be converting an application under Article 226 of the Constitution of India to be merely a statutory appeal under the provisions of the SARFAESI Act.
4. Be that as it may, we think that if the appellants have any intention to liquidate the out-standings by protecting the residential building, amounts will have to be paid to ensure that the SARFAESI proceedings are held back by the Bank. Taking into consideration the contents of Ext.P3 which is a previous judgment inter partes and the views of the learned single Judge as reflected through the impugned judgment, we order that Bank can take actual physical possession of the residential building of the appellants, however that, there will be a true and correct inventory of all items of movable properties in that building duly prepared and the said building shall be W.A.No.2457 of 2015 5 secured appropriately by the Bank and also through proper watch and ward. If the appellants pay to the Bank an amount of Rs.50,00,000/- (Rupees fifty lakhs only) within a period of three weeks from today, the appellants shall be put in de facto, but, not de jure occupation of the residential building as custodians of that property under the Bank and on the further firm condition that the appellants shall take proper care of that piece of secured asset. Once the appellants utilise the benefit of this order, they will be permitted to continue in such occupation, provided they pay the Bank at the rate of Rs.25,00,000/- on before the last working day of every month commencing from December, 2015. If there is failure to pay any of the installments in terms of this order, the Bank will be at liberty to forthwith proceed with further action including by removing the appellants from occupation and also by proceeding with further measures as would be lawfully available in terms of the provisions of the SARFAESI Act. In the event of it becoming necessary for the Bank to re-enter occupation, any request by it to the jurisdictional Chief Judicial Magistrate will be acted upon and the Bank will be put back in occupation within a period of 48 hours therefrom. We clarify that the pendency of these proceedings will not stand in the way of the appellants entering into any transaction for any proposal to sell any of the secured items without prejudice to the rights of the Bank as a secured creditor in terms of the provisions of the SARFAESI Act."
W.A.No.2457 of 2015 6
4. There is no representation on behalf of the appellants. We have gone through the material on record.
Interim order dated 13.11.2015 is a self working order. By efflux of time, nothing survives in this writ appeal for adjudication.
Accordingly, writ appeal is closed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv //true copy// P.A. to Judge