IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
WP(C) NO. 7986 OF 2022
PETITIONER/S:
XAVIERKUTTY PUTHETH
AGED 53 YEARS
PROPRIETOR, MEREENA TRADING AND EXPORTS, 37/3230,
PANORAMA ARCADE, EDAPPALLY, KOCHI-682024.
BY ADVS.
SHEEN JOSE
DIPU.R
SARASWATHI PALEREKEEZHIL
BASIL MATHEW
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMERCE AND
INDUSTRIES DEPARTMENT, UDYOG BHAVAN, RAFI AHAMMED
KIDWAL MARG REJPATH ROAD, AREA, NEW DELHI-110011.
2 THE RESERVE BANK OF INDIA
SANSAD MARG, NEW DELHI-110001, REPRESENTED BY ITS
GOVERNOR.
3 STATE BANK OF INDIA
SHANMUGAM ROAD, MARINE DRIVE, NEAR MENAKA STOP,
ERNAKULAM, REPRESENTED BY ITS DEPUTY GENERAL MANAGER-
682035.
4 STATE BANK OF INDIA SBI
STRESS ASSETS RECOVERY BRANCH, STATE BANK OF INDIA, 7TH
FLOOR,VANKAARATH TOWERS, PALARIVATTOM BYE-PASS
JUNCTION, ERNAKULAM-682024., REPRESENTED BY IS CHIEF
GENERAL MANAGER AND AUTHORIZED OFFICER.
5 STATE LEVEL BANKERS COMMITTEE
REPRESENTED BY ITS CONVENER AND GENERAL MANAGER, SLBC
CELL, CANARA BANK, CIRCLE OFFICE, CANARA BANK BUILDING,
M G ROAD, TRIVANDRUM-695001.
BY ADV S.EASWARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7986 OF 2022 2
JUDGMENT
Petitioner has approached this Court, challenging Ext.P18 proceedings, by which symbolic possession of immovable property belonging to the petitioner is taken by the respondent bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as 'the Securitisation Act').
2. Primary contention of the learned counsel for the petitioner is that Ext.P18 is bad in law on account of the fact that it was not preceded by a notice under Section 13(2) of the Securitisation Act. It is submitted that Ext.P18 has been issued after the earlier notice under Section 13(2) of the Securitization Act had been withdrawn. It is submitted that Ext.P18 is therefore unsustainable as it was not preceded by a notice under Section 13(2) of the Securitization Act.
3. Learned Sanding Counsel appearing for the respondent bank would submit that the contention taken by the learned counsel for the petitioner is not correct and that Ext.P18 was indeed preceded by a notice under Section 13(2) of the Act and that the contention of the learned counsel for the petitioner that the said notice had been withdrawn is absolutely untenable. He also submits that the writ petition was filed when there was an order of the Supreme Court of India permitting persons who would otherwise have to approach the Debts Recovery Tribunal to file writ petitions challenging proceedings WP(C) NO. 7986 OF 2022 3 initiated by the bank under the SARFAESI Act. This was on the ground that there were no presiding officer at the Debts Recovery Tribunal. It is submitted that since the Debts Recovery Tribunal has resumed functioning, it is for the petitioner to challenge Ext.P18 before the Debts Recovery Tribunal in a manner known to law.
4. Having heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent bank, I am of the view that this writ petition can be disposed of, permitting the petitioner to approach the Debts Recovery Tribunal against the proceedings initiated by the bank under the SARFAESI Act in a duly constituted appeal under Section 17 of the said Act. In order to enable the petitioner to avail sufficient time to file original application, the interim order granted by this Court on 10.03.2022 and extended thereafter, will continue to be in operation for a period of three weeks. If any appeal/stay petition is filed by the petitioner, the same shall be decided by the Debts Recovery Tribunal untrammeled by any observation by this Court.
sd/-
GOPINATH P.
JUDGE ajt WP(C) NO. 7986 OF 2022 4 APPENDIX OF WP(C) 7986/2022 PETITIONER EXHIBITS Exhibit P18 TRUE COPY OF TH SYMBOLIC POSSESSION DATED 05.03.2022 OF THE 4TH RESPONDENT.
Exhibit P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 15.11.2019.
Exhibit P2 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.11.2019 BETWEEN THE PETITIONER AND RESPONDENT BANK.
Exhibit P3 TRUE COPY OF THE COMMUNICATION FROM THE RESPONDENT BANK DATED 29.02.2020.
Exhibit P4 TRUE COPY OF THE MINUTES OF STATE LEVEL BANKERS COMMITTEE HELD ON 24/8/2018. Exhibit P5 TRUE COPY OF THE LETTER DATED 01.06.2020 OF THE RESPONDENT BANK REQUIRING PETITIONER TO RENEW OF THE INSURANCE POLICY.
Exhibit P6 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT BANK ON 01.06.2020.
Exhibit P7 TRUE COPY OF THE 13(2) NOTICE ISSUED TO THE PETITIONER ON 10.06.2020.
Exhibit P8 TRUE COPY OF THE REQUEST FORWARDED BY THE PETITIONER ON 20.06.2020 TO THE RESPONDENT. Exhibit P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE PETITIONER ON 2/7/2020.
Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED 6/7/2020.
Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 13.07.2020 OF 4TH RESPONDENT TO THE PETITIONER.
Exhibit P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 17/07/2020.
Exhibit P13 TRUE COPY OF THE PUBLICATION PUBLISHED IN MALAYALAM DAILY NAME MATHRUBHUMI BY THE 4TH RESPONDENT ON 18.11.2021.
Exhibit P14 TRUE COPY OF THE PETITIONER SUBMITTED A DETAILED REPRESENTATION TO THE 4TH RESPONDENT DATED 10.01.2022.
Exhibit P15 TRUE COPY OF THE 4TH RESPONDENT SENT A REPLY DATED 19.01.2022.
Exhibit P16 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE BANKING OMBUDSMAN 22.12.2021.
Exhibit P17 TRUE COPY OF THE ORDER ISSUED BY THE 1ST WP(C) NO. 7986 OF 2022 5 RESPONDENT DATED 11.01.2022.
Exhibit P18 TRUE COPY OF THE SYMBOLIC POSSESSION DATED 05.03.2022 OF THE 4TH RESPONDENT.
RESPONDENT EXHIBITS Exhibit R4 (a) TRUE COPY OF THE WRIT PETITION NO.18624 OF 2020 ALONG WITH EXHIBITS.
Exhibit R4 (b) TRUE COPY OF THE JUDGMENT DATED 14.3.2022 IN WPC 18624 OF 2020 Exhibit R4 (c) TRUE COPY OF THE INSPECTION REPORT DATED 26.9.2019 Exhibit R4 (d) TRUE COPY OF THE LETTER DATED 26.9.2019 DECIDED TO REJECT THE CLAIM FOR RESTRUCTURING OF THE ACCOUNT Exhibit R4 (e) TRUE COPY OF THE CIRCULAR NO.DOR.NO BP BC/34/21.4.048/2020-21 ISSUED BY THE RBI ON 6.8.2020