IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
OP (DRT) NO. 288 OF 2022
PETITIONERS:
1 SONY SEBASTIAN
AGED 56 YEARS
W/O. SEBASTIAN, PATHIKKATT HOUSE, RAJAPURAM P.O,
POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.
2 SEBIN SEBASTIAN,
AGED 27 YEARS
S/O. SEBASTIAN VARKEY, PATHIKKATT HOUSE, RAJAPURAM P.O,
POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.
3 SEBASTIAN VARKEY
AGED 58 YEARS
S/O. LATE VARKEY, PATHIKKATT HOUSE, RAJAPURAM P.O,
POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.
BY ADVS.
VARGHESE C.KURIAKOSE
ALBIN A. JOSEPH
RESPONDENTS:
1 KERALA STATE CO-OPERATIVE BANK LTD.,
IDUKKI COLONY P.O, IDUKKI DISTRICT, PIN - 685602,
REPRESENTED BY ITS AUTHORISED OFFICER
2 THE AUTHORISED OFFICER,
KERALA STATE CO-OPERATIVE BANK LTD, IDUKKI COLONY P.O,
IDUKKI DISTRICT, PIN - 685602.
BY ADV GILBERT GEORGE CORREYA
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P (DRT) No.288/2022 -2-
JUDGMENT
The petitioners have approached this court being aggrieved by the fact that physical possession of the residential house of the 1st petitioner which was a secured asset in so far as the 1st respondent bank is concerned has been taken even before proceedings under Section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the Securitisation Act) have been finalized. It is submitted that going by the judgment of the Supreme Court in Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others; (2011) 2 SCC 782 the taking of physical possession can only be done after action under Section 13 (4) is initiated. It is submitted that though a slightly different view has been taken in Standard Chartered Bank and others v. Noble Kumar and others; (2013) 9 SCC 620, this court in Roshan Narayanan C.S. v. Authorised Officer, Central Bank of India and another; 2017 (4) KLT 1172 has found that when there are mutually irreconcilable decisions of the Supreme Court and the latter judgment does not refer to the earlier judgment, then the earlier judgment will have to be followed. Specific reference is made to paragraph 13 of this court judgment in Roshan Narayan (supra) where this court held as follows:-
"13. I might add, at this juncture, that this court is mindful of the plethora of judicial precedents which state that, when confronted with two or more mutually irreconcilable decisions of the Supreme Court, that are cited at the bar, the inviolable recourse is to apply the earliest view, as the succeeding ones would fall in the category of per incuriam (See: Sandeep Kumar Bafna v State of Maharashtra & Anr
- 2014 (16) SCC 623). In the instant case, it would have been easy for this court to brush aside the decision in Noble Kumar (supra) as per incuriam, as the said decision does not refer to the earlier decisions of concurrent benches in Satyawati Tandon (Supra) and Kanaiyalal (Supra). My attempt in this judgment, however, has been to reconcile the said decisions in the light of the statutory provisions."
O.P (DRT) No.288/2022 -3-
2. The learned Standing Counsel appearing for the 1 st respondent vehementally opposes the grant of any relief. Firstly it is submitted that the petitioners are chronic defaulters and the liability as on date in excess of Rs.33,00,000/-. It is submitted that the petitioners have also moved before the Debts Recovery Tribunal through a duly constituted securitization application and there is no cause of action whatsoever for the petitioners to approach this court by invoking the writ jurisdiction of this court under Article 226 of the Constitution of India. It is submitted that the law laid down in Noble Kumar (supra) is categoric and that action under Section 14 of the Securitization Act can be initiated even at the stage of demand notice under Section 13 (2) of the SARFAESI Act. It is submitted that there is absolutely no conflict between the decision in Noble Kumar (supra) and the earlier decision in Kanaiyalal Lalchand Sachdev (supra) as the question considered in Kanaiyalal Lalchand Sachdev (supra) was completely different and the issue considered was whether an appeal would lie under Section 17 in respect of an action taken under Section 14 of the Act. It is submitted that while considering that question the Supreme Court came to the conclusion that since taking of possession was also a measure under Section 13 (4) an appeal would certainly lie against the taking of possession under Section 14 of the SARFAESI Act.
3. Considering the fact that the secured asset which is now taken possession is stated to the residential house of the 1 st petitioner, I suggested the learned counsel appearing for the petitioner that pending consideration of the stay application before the Debts Recovery Tribunal, the physical possession of the residential house can be restored on payment of some amount to the 1 st respondent O.P (DRT) No.288/2022 -4- bank. The learned counsel for the petitioners would state that the petitioners would be willing to sum equivalent to 10% of the total outstanding as a condition for obtaining the possession of the secured asset, pending consideration of the stay application by the Debts Recovery Tribunal. The learned Standing counsel has reluctantly accepted this proposal. Accordingly this original petition will stand disposed of directing that on the petitioner paying a sum of Rs.3.35 lakhs to the 1 st respondent bank towards the loan liability, the physical possession of the residential house of the 1st petitioner which has been taken by the 1 st respondent bank shall be returned to the 1 st petitioner. Further proceedings under the SARFAESI Act against the petitioners will depend on the orders to be passed by the Debts Recovery Tribunal in the stay application filed in the securitization application. The possession of the residential house of the 1 st petitioner shall be restored within one week from the date on which the payment of Rs.3.35 lakhs is made to the 1st respondent bank.
Original petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE AMG O.P (DRT) No.288/2022 -5- APPENDIX OF OP (DRT) 288/2022 PETITIONER EXHIBITS Exhibit P1 DEMAND NOTICE DATED 05.01.2021 ISSUED BY THE DEFENDANTS BANK.
Exhibit P2 OBJECTIONS DATED 05.02.2021 SUBMITTED BY THE APPLICANTS.
Exhibit P3 REPLY DATED 09.02.2021 ISSUED BY THE DEFENDANTS BANK. Exhibit P4 A DETAILED OBJECTION SUBMITTED BY THE APPLICANTS DATED 02.03.2022.
Exhibit P5 ORDER DATED 24.05.2022 IN MC.NO. 268/2022 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA.