Jayasree vs Phoenix Arc Private Ltd

Kerala High Court

Jayasree vs Phoenix Arc Private Ltd 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. 10256 OF 2024
PETITIONER:

         JAYASREE
         AGED 55 YEARS
         W/O.MADHAVANUNNI T, KALLAMKUTH HOUSE,
         NEDIYARUPP P.O., MALAPPURAM - 673638.

         BY ADVS.
         AJMAL V. A.
         A.C.ARFANA
         FATHIMA V.A.


RESPONDENTS:

    1    PHOENIX ARC PRIVATE LTD
         5TH FLOOR, DANI CORPORATE PARK,
         158, CST ROAD, KALIAN, SANTACRUZ (E)
         MUMBAI - 400098, REPRESENTED BY ITS
         MANAGING DIRECTOR, PIN - 400098.

    2    THE AUTHORISED OFFICER
         PHOENIX ARC PRIVATE LTD., 5TH FLOOR,
         DANI CORPORATE PARK, 158, CST ROAD,
         KALIAN, SANTACRUZ (E) MUMBAI - 400098.

         BY ADVS.
         A.C.ARFANA
         NIDHI SAM JOHN
         A.KEVIN THOMAS
         LIJO JOSEPH (THOPPIL)
         CELIA SANTHOSH
         A.V.THOMAS (SR.)

     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.10256 of 2024
                                 :2:


                        JUDGMENT

Dated this the 21st day of May, 2024 The petitioner, who has availed a financial assistance from the South Indian Bank Limited and who is facing securitisation proceedings now executed by the 1st respondent - Phoenix ARC Private Limited, has filed this writ petition seeking the following reliefs:-

''i) Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction commanding the 1st and 2nd respondents to release the mortgaged property having a total extent of 1.46 Acres of land comprised in Survey No.59/1A, 59/2 and 102/1,2 and 96/1 of the Perinthalmanna Village, Perinthalmanna Taluk in Malappuram District to the 2nd petitioner without any encumbrances after receiving the 25% of the auction price immediately , and the balance amount within a time frame that may please be fixed by this Hon'ble Court;

ii. Issue any such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper considering the circumstances of the case in the interest of justice. '' W.P.(C)No.10256 of 2024 :3:

2. Standing Counsel representing the 1st respondent submitted that the Bank transferred the security interest to the 1st respondent and the secured asset has already been put to sale by the 1st respondent. The petitioner has approached the Debts Recovery Tribunal and the Debts Recovery Tribunal has granted an interim stay against the confirmation / issuance of Sale Certificate.

3. The argument of the petitioner before this Court is that the petitioner is ready to redeem the mortgage paying the entire amount payable to the Bank and if the property is possessed by a third party, the petitioner will be put to untold hardship.

4. This Court has considered the issue of redemption of mortgage in the judgment in IDBI Bank Limited v. The Sub Registrar and others [ILR 2024 (2) Kerala 235] and W.P.(C)No.10256 of 2024 :4: held as follows:-

''16. It was after the judgment in Mathew Varghese (supra), Section 13(8) was substituted as per Amendment Act 44 of 2016. The Hon'ble Apex Court considered the impact of the amendment to Section 13(8) in Celir LLP v.

Bafna Motors (Mumbai) Private Limited [MANU/SC/1042/2023 : 2023:INSC:838 : 2023 (5) KLT 599]. The Apex Court held that with the advent of the 2016 amendment, Section 13(8) of the SARFAESI Act now uses the expression ''before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets''. The Apex Court held that the right of redemption of mortgage is available to the borrower under the SARFAESI Act only till the publication of auction notice, in the light of the amended Section 13(8).

17. In Celir LLP (supra), the Apex Court further held that the statutory right of redemption under the Transfer of Property Act, 1882 will not be applicable to the SARFAESI Act in view of the amended Section 13(8) and any right of redemption of a borrower must be found within the SARFAESI Act in terms of the amended Section 13(8).''

5. In view of the afore judgment, it may not be proper for this Court to grant any relief in the writ petition. At any rate, the petitioner is before the Debts Recovery Tribunal and W.P.(C)No.10256 of 2024 :5: the Debts Recovery Tribunal has already passed an interim stay order in favour of the petitioner.

In view of the above, the writ petition is disposed of without granting any relief sought for by the petitioner in the writ petition, but at the same time, granting liberty to the petitioner to agitate his grievance before the Debts Recovery Tribunal.

Sd/-

N. NAGARESH JUDGE ams W.P.(C)No.10256 of 2024 :6: APPENDIX OF WP(C) 10256/2024 PETITIONER'S EXHIBIT Exhibit P1 TRUE COPY OF THE E-AUCTION SALE NOTICE DATED 19.12.2023 ISSUED BY THE 1ST RESPONDENT.

RESPONDENT'S EXHIBIT Exhibit R1(a) TRUE COPY OF THE SALE NOTICE DATED 19.12.2023 ISSUED BY THE 2ND RESPONDENT.