IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 24544 OF 2021
PETITIONER:
ARUN.M.C.,
AGED 40 YEARS
S/O.MOHAN, PRA 47, SIVA GANGA, HOUSE
NO.111/232, AYANIKADU, NANMA NAGAR, MUKKOLACKAL
P.O., THIRUVANANTHAPURAM-695 043.
BY ADV N.SASI
RESPONDENTS:
1 THE AUTHORIZED OFFICER UNDER SARFAESI ACT,
CSB BANK, SOUTH KERALA ZONAL OFFICE, MALANKARA
BUILDING COMPLEX, PALAYAM, THIRUVANANTHAPURAM-
695 034.
2 THE DEBT RECOVERY TRIBUNAL NO.II, ERNAKULAM
REPRESENTED BY ITS REGISTRAR, 1ST FLOOR, KSHB
BUILDING, PANAMPILLY NAGAR, ERNAKULAM-682 036.
BY ADV K.ANAND(K/001343/1995)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.24544/2021
2
JUDGMENT
Dated this the 29th day of June, 2022 The petitioner, who has availed a loan from the CSB bank has approached this Court seeking to call for the records resulting in Ext.P4 warrant and Ext.P5 notice issued by the Advocate Commissioner, to scrutinize and quash the same. The petitioner further wants to direct the 1 st respondent not to take any coercive proceedings under the SARFAESI Act till the disposal of Ext.P7 stay petition.
2. According to the petitioner, the respondents have resorted to measures under Section 13(4) of the SARFAESI Act without issuing proper notice under Section 13(2) of the SARFAESI Act. Though it has been stated that notice has been issued by registered post, no such notice was issued by the respondents.
3. Standing Counsel entered appearance and resisted the writ petition. Standing Counsel submitted that the respondents were forced to take coercive proceedings W.P.(C) No.24544/2021 3 against the petitioner since the petitioner committed persistent defaults in spite of the request made by the respondents to repay the amounts.
4. When this matter came up for admission on 12.11.2021, this Court directed the petitioner to remit an amount of Rs.15,00,000/- on or before 15.12.2021 and a further sum of Rs. 5,00,000/- on or before 31.12.2021. The counsel for the petitioner would submit that the petitioner has remitted Rs.20,00,000/-, though after the stipulated period. The Standing Counsel would dispute this statement and would submit that the petitioner has remitted only Rs.19,75,000/-
5. When the writ petition came up for hearing today, the learned Counsel for the petitioner, after arguing the matter for considerable time, submitted that the petitioner has approached the Debt Recovery Tribunal (DRT) by filing S.A.No.243/2020 and the petitioner may be permitted to prosecute the case before the DRT, for further relief in the matter.
W.P.(C) No.24544/2021 4 Accordingly, granting such liberty, the writ petition is disposed of.
Sd/-
N. NAGARESH JUDGE AJ W.P.(C) No.24544/2021 5 APPENDIX OF WP(C) 24544/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF SA NO.243/2020 DATED 18.11.2020 WITHOUT ANNEXURES FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL NO.II, ERNAKULAM. Exhibit P2 TRUE COPY OF THE IA NO.1171/2020 FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL NO.II, ERNAKULAM. Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 01.01.2021 FILED BY THE RESPONDENT BEFORE THE DEBT RECOVERY TRIBUNAL NO.II, ERNAKULAM.
Exhibit P4 TRUE COPY OF THE WARRANT AUTHORIZING THE ADVOCATE COMMISSIONER TO TAKE POSSESSION OF THE PROPERTY DATED 03.09.2021 BY THE CHIEF JUDICIAL MAGISTRATES COURT, THIRUVANANTHAPURAM. Exhibit P5 TRUE COPY OF NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 16.10.2021.
Exhibit P6 TRUE COPY OF THE IA NO.1420/2021 DATED 02.11.2021 WITHOUT ANNEXURES FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL NO.II, ERNKAULAM. Exhibit P7 TRUE COPY OF IA NO.1421/2021 FOR STAY FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL NO.II, ERNAKULAM.