Mohandas vs Kerala State Co-Operative Bank, P.B ...

Kerala High Court

Mohandas vs Kerala State Co-Operative Bank, P.B ... on 20 May, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
        MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                       WP(C) NO. 12420 OF 2024
PETITIONER:

            MOHANDAS
            AGED 69 YEARS
            S/O. NARAYANAN NAIR, PATHALINGAL HOUSE, KULUKKALLOOR,
            MULAYANKAVU P.O, PALAKKAD, PIN - 679337.
            BY ADVS.
            AMJATHA D.A.
            FARHANA K.H.


RESPONDENTS:

    1       KERALA STATE CO-OPERATIVE BANK, P.B NO.25
            REPRESENTED BY THE EXECUTIVE OFFICER, H.P.O ROAD,
            SULTHANPET, PALAKKAD, PIN - 678001.

    2       THE BRANCH MANAGER
            KERALA STATE CO-OPERATIVE BANK, KOPPAM BRANCH,
            PALAKKAD, PIN - 679307.

            BY ADV M.SASINDRAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12420 OF 2024                    2


                                      JUDGMENT

Dated this the 20th day of May, 2024 This writ petition has been filed by the petitioner seeking the following reliefs:-

(i) To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading up to quash Exhibit P1 and all proceedings pursuant thereto.

(ii) Issue a writ of mandamus or any appropriate writ, order or direction, directing the respondent to regularize the loan account by giving installments for the overdue amount.

2. The petitioner is the Power of Attorney holder of the borrower who had availed an Overdraft facility from the Bank. When the petitioner failed to make payments, coercive proceedings have been initiated invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner approached this Court seeking to direct the respondents to regularise the loan account.

3. When the writ petition came up for admission on 25.03.2024, this Court passed an interim order staying further proceedings pursuant to Ext.P1 till 20.05.2024 on condition that WP(C) NO. 12420 OF 2024 3 the petitioner shall remit an amount of Rs.15 lakhs on or before 30.03.2024 and a further amount of Rs.15 lakhs on or before 30.04.2024. It is an admitted position that the petitioner has not paid any amount pursuant to the interim orders of this Court. In this writ petition, the petitioner is challenging Ext.P1 sale notice. Ext.P1 sale notice is issued invoking Section 13(4) of the SARFAESI Act.

4. It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the SARFAESI Act. In United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110], the Hon'ble Apex Court declared that no writ petition shall be entertained against the proceedings initiated under the SARFAESI Act at the instance of a defaulter since the statute provides for an efficacious alternate remedy.

5. In the judgment in Authorised Officer, State Bank of Travancore v. Mathew K.C. [2018 (1) KLT 784], the Hon'ble Apex Court reiterated that no writ petition would lie against the proceedings under the SARFAESI Act in view of the statutory remedy available under the said Act. WP(C) NO. 12420 OF 2024 4

6. Following the judgment in Satyawati Tondon (supra), a Division Bench of this Court in the judgment in Anilkumar v. State Bank of India [2020 (2) KLT 756] declined to exercise jurisdiction under Article 226 of the Constitution of India against the proceedings initiated under the Securitisation Act.

7. In South Indian Bank Limited v. Naveen Mathew Philip [2023 (4) KLT 29], the Apex Court held that when the legislature has provided a specific mechanism for appropriate redressal, the powers conferred under Article 226 of the Constitution of India shall be exercised only in extraordinary circumstances.

8. In Jayakrishnan A. v. Union Bank of India and others (W.P.(C) No.30803/2023), this Court held that writ petition challenging any proceedings under the Securitisation Act is not maintainable since the aggrieved person has an effective and efficacious remedy before the Tribunal constituted under the Act which is competent to adjudicate the issues of fact and law, including statutory violations. WP(C) NO. 12420 OF 2024 5

In the light of the categorical pronouncements of law made by the Apex Court and by this Court, the above writ petition is not maintainable and it is dismissed.

Sd/-

N.NAGARESH JUDGE Sru WP(C) NO. 12420 OF 2024 6 APPENDIX OF WP(C) 12420/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE SALE NOTICE DATED 13.02.2024.