M/S. Gee Cee Brothers vs The Authorized Officer

Kerala High Court

M/S. Gee Cee Brothers vs The Authorized Officer on 21 May, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
         THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                WP(C) NO. 42046 OF 2022
PETITIONERS:

   1     M/S. GEE CEE BROTHERS,
         AGED 41 YEARS
         REPRESENTED BY ITS MANAGING PARTNER,
         VISHWANADH KANNAN, S/O. G.KANNAN,
         DOOR NO. IV-1287, KURUPLAVU ROAD,
         FORT KOCHI, ERNAKULAM PIN - 682002.

   2     VISHWANADH KANNAN,
         AGED 41 YEARS
         S/O. G.KANNAN, DOOR NO.IV-1287,
         KURUPLAVU ROAD, FORT KOCHI,
         ERNAKULAM PIN - 682002.

   3     V.YALIZAI,
         AGED 39 YEARS
         DOOR NO.IV-1287, KURUPLAVU ROAD,
         FORT KOCHI, ERNAKULAM PIN - 682002.

   4     C.VENKATESH,
         AGED 38 YEARS
         DOOR NO.IV-1287, KURUPLAVU ROAD,
         FORT KOCHI, ERNAKULAM PIN - 682002.

         BY ADV K.MOHANAKANNAN


RESPONDENTS:

   1     THE AUTHORIZED OFFICER,
         KOTAK MAHINDRA BANK LIMITED,
         40/9702, KANAKA DAMODAR BUILDING,
         VEEKSHANAM ROAD,
         OPPOSITE INTERNATIONAL HOTEL,
         KOCHI, PIN - 682035.
 W.P.(C)No.42046 of 2022
                           :2:

    2    THE CHIEF MANAGER,
         KOTAK MAHINDRA BANK LIMITED,
         40/9702, KANAKA DAMODAR BUILDING,
         VEEKSHANAM ROAD,
         OPPOSITE INTERNATIONAL HOTEL,
         KOCHI, PIN - 682035.

         BY ADVS.
         J.RAMKUMAR
         M.A.JOSEPH MANAVALAN
         KRUSCH P.A


     THIS WRIT PETITION (CIVIL) HAVING COME UP   FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C)No.42046 of 2022
                              :3:

                      JUDGMENT

Dated this the 21st day of May, 2024 The petitioners are before this Court seeking to quash Ext.P3 and to direct the respondents to permit the petitioners to clear the amount demanded as per Ext.P3, less the amount already remitted, in easy monthly instalments.

2. The petitioners challenge Ext.P3. Ext.P3 is a possession notice issued by the respondents under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002.

3. 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 W.P.(C)No.42046 of 2022 :4: SARFAESI Act at the instance of a defaulter since the statute provides for an efficacious alternate remedy.

4. 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.

5. 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.

6. 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 W.P.(C)No.42046 of 2022 :5: appropriate redressal, the powers conferred under Article 226 of the Constitution of India shall be exercised only in extraordinary circumstances.

7. 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.

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 ams W.P.(C)No.42046 of 2022 :6: APPENDIX OF WP(C) 42046/2022 PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED U/S. 13(2) OF THE SARFAESI ACT DATED 17/08/2022.

Exhibit P2 TRUE COPY OF THE STATEMENT OF ACCOUNTS FROM 01/01/2022 TO 19/12/2022.

Exhibit P3 TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE 1ST RESPONDENT DATED 14/12/2022.

Exhibit P4 TRUE COPY OF THE PROPOSAL FOR SETTLEMENT DATED 24.12.2022.

Exhibit P5 TRUE COPY OF THE STATEMENT OF ACCOUNT FURNISHED BY THE RESPONDENT BANK FOR THE PERIOD FROM 01/12/2022 TO 31/12/2022.

Exhibit P6 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE RESPONDENT BANK DATED 13-9- 2023.