Jasna P vs Bank Of Baroda
2021 Latest Caselaw 6196 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                       WP(C).No.1308 OF 2021(K)


PETITIONER:

               JASNA P
               AGED 43, W/O MUHAMMED ASHARAF, NEIKUTTIPARAMBU,
               KOTTOOLY P.O., KOZHIKODE DISTRICT, PIN-673 016,
               PRESENTLY RESIDING AT DEVI APARTMENTS, E6,
               MINI BYE-PASS ROAD, PUTHIYARA, CALICUT DISTRICT,
               PIN-673 016.

               BY ADVS.
               SRI.K.S.SAJEEV KUMAR
               BISMI T.A.

RESPONDENTS:

      1        BANK OF BARODA
               REGIONAL OFFICE, SECOND FLOOR, ACE ATRIYA, NEAR
               ENGLISH CHURCH, KANNUR ROAD, KOZHIKODE DISTRICT,
               PIN-673 006, REPRESENTED BY ITS MANAGER.

      2        THE STATE OF KERALA,
               REP. BY ITS SECRETARY TO GOVERNMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

               R1 BY ADV. SRI.LEO GEORGE

OTHER PRESENT:

               SMT. POOJA SURENDRAN, GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.1308/2021                       2


                                  JUDGMENT

Dated this the 22nd day of February 2021

This writ petition is filed by the co-borrower of the

1st respondent-Bank. The petitioner is the wife of borrower and

the loan was taken for running business of the partnership firm,

M/s.Plyco. What is sought to be impugned in the instant writ

petition is the action taken by the 1 st respondent- secured creditor

under the SARFAESI Act. The main prayer in this writ petition is

thus:

i) Issue a writ of mandamus or other appropriate writ, order or direction, directing the 1st respondent to terminate all further proceedings in pursuance to item No.1 of Exhibit P2 publication issued in pursuance to the provisions of the SARFAESI Act of 2002, being illegal and unsustainable.

2. The averment in the writ petition is to the effect that the

husband of the petitioner was residing along with the petitioner.

However, subsequently, they had developed a strained

relationship and therefore, the petitioner is staying separately.

The petitioner has disclosed how a loan was taken by her with her

husband for partnership business. According to the petitioner,

their property situated in survey No.22 worth about Rs.2 crores

came to be mortgaged by offering it as security for the financial

assistance availed by the firm owned by the petitioner and her

husband. It is averred that an overall amount of Rs.43,10,706/-

was outstanding and by fixing upset price of the property at

Rs.78,97,000/-, the property is sought to be sold by the

1st respondent by taking action under the SARFAESI Act. It is

further contended that neither the petitioner nor the firm has

ever received any communication regarding progress but the

overdraft facility was abruptly terminated by the 1st respondent.

In paragraph 7 of the writ petition, the relevant averment reads

thus:

"7. ... At this juncture, it is pertinent to note that no notice or information has ever been issued either to the petitioner or to the firm disclosing the fact that the facility has been converted as a non- paying asset and the Bank is intending to proceed against the property. Further to all these, neither M/s.Plyco or its partners, the petitioner and her husband have ever been issued with any statutory notice as contemplated under the provisions of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2000 before subjecting the property to sale.

Without complying any of the statutory stipulations, the Bank has very hastily proceeded to conduct the proposed sale of the property exclusively belonging to the petitioner at a very meager rate which reveals the malafide intention of the Bank...".

In addition to this, ground No.8 of the writ petition is to the effect

that statutory notice as prescribed under Section 13 of the

SARFAESI Act and provisos to the same vitiate the sale and those

are in violation of the principles of natural justice since no notices

have ever been issued either to the petitioner or to the firm.

With such averments, action taken by the 1st respondent under

the SARFAESI Act is sought to be declared illegal and

unsustainable. An additional prayer for instalment is also made

by the petitioner.

3. Heard learned counsel for the petitioner, learned

Standing Counsel appearing for the 1st respondent-Bank and also

the learned Government Pleader.

4. During the course of first hearing, learned counsel for

the petitioner argued about total non compliance of the statutory

provisions of the SARFAESI Act by the secured creditor and

therefore, the 1st respondent was noticed and in the meanwhile,

interim relief of restraining the 1st respondent from further

proceedings according to the provisions of the SARFAESI Act

came to be passed. Immediately on the next date of hearing, the

1st respondent-secured creditor placed on record the statement

along with compilation of documents showing compliance of

provisions of the SARFAESI Act including notices issued, paper

publications as well as postal receipts.

5. When the matter was listed on 18.02.2021, learned

counsel for the petitioner argued that the documents annexed

with the statement of the 1st respondent-secured creditor are

incorrect documents and the cover allegedly sent to the petitioner

was not containing any notice under Section 13(2) of the

SARFAESI Act. This was argued on the basis of the postal

acknowledgment at Annexure R1(c) which was showing that the

cover was sent by the Vijaya Bank and not by the 1 st respondent-

Bank of Baroda. Hence the interim order was continued with a

direction to the 1 st respondent-Bank of Baroda to swear an

affidavit clarifying this fact. The following order was passed on

18.02.2021:

"Heard the learned counsel for the petitioner, on the statement made by the respondent as well as the Annexures to the statement. This was because, on the

last date of hearing ie, on 18.01.2021, the following order came to be passed by this Court.

"Heard the learned counsel appearing for the petitioner. Learned counsel appearing for the petitioner argues that there is total non-compliance of statutory provisions of the SARFAESI Act as no notices as contemplated by the said Act were ever issued by the secured creditor.

Learned standing counsel for the 1 st respondent is seeking adjournment. Post after two weeks. In the meanwhile, interim relief as prayed."

2. Perusal of this order goes to show that statement of the learned counsel for the petitioner that there was total non-compliance of statutory provisions of the SARFAESI Act as no notices as contemplated by the said Act were ever issued by the secured creditor came to be accepted by this Court for granting interim relief as prayed by the petitioner.

3. The petition is challenging the steps taken by the secured creditor, ie, respondent according to the provisions of the SARFAESI Act, 2002 and more particularly, the e-acution sale notice, Ext.P2, issued under the SARFAESI Act. This Court is well aware of the binding precedent of the Hon'ble Supreme Court in the matter of Authorized Officer, State Bank of Travancore and another vs. Mathew K.C ((2018) 3 Supreme Court Cases 85)(DB) which prohibits this Court in entertaining this writ petition challenging the steps taken by the secured creditor under the SARFAESI Act in the light of alternate remedy available under the

said Act. However, as total non-compliance with the provisions of the SARFAESI Act came to be urged by the learned counsel for the petitioner and as, there is such specific averment made in paragraph 7 of the writ petition, the writ petition came to be entertained and the interim order was passed.

4. Now the respondent-secured creditor has filed a statement. It is specifically averred in the said statement that demand notice was issued by the Authorized Officer of the respondent Bank under Section 13(2) of the SARFAESI Act. The respondent has placed on record, the said demand notice at Annexure R1(b). It is further averred by the secured creditor in their statement that the acknowledgments evidencing receipt of the demand notice by the borrowers, including the petitioner is also received and the same is produced along with the statement. Perusal of Annexure R1(c) shows that the petitioner herself has received the demand notice and she has acknowledged the same on 13.09.2019.

5. Learned counsel for the petitioner submits that notice at Annexure R1(b) is issued by the Bank of Baroda, whereas the acknowledgment at Annexure R1(c) is that of some communication issued by the Vijaya Bank. According to the learned counsel for the petitioner, what was sent in the envelope was not notice under Section 13(2) by the Bank of Baroda as the acknowledgment reveals that the communication was sent by Vijaya Bank.

6. The respondent to swear an affidavit and to clarify whether communication at Ext.R1(b), ie, notice under Section 13(2) of the SARFAESI Act was issued to

the petitioner as well as the borrower in the envelope which came to be acknowledged by Ext.R1(c)...".

6. Today, in response to the order dated 18.02.2021, the

1st respondent-Bank of Baroda had sworn an affidavit clarifying

the facts and also produced on record the postal receipts at

Annexure R1(c).

7. In the light of this factual situation, today the writ

petition is finally heard by this Court. Learned counsel for the

petitioner again reiterated his contention that the document at

Annexure R1(c), which is a postal acknowledgment of the year

2019, is a forged and fabricated document which is not bearing

the signature of the petitioner. It needs to be noted that this is

an acknowledgment of notice at Annexure R1(b) issued by the

1st respondent-Bank of Baroda under Section 13(2) of the

SARFAESI Act recalling the loan by declaring it as non performing

asset. Learned counsel for the petitioner further argued that the

amount of loan was Rs.76 lakhs, out of which, Rs.43 lakhs is due

and payable by the petitioner. However, the entire property is

sought to be sold for effecting this recovery of about Rs.43 lakhs.

He reiterated that no notice was ever issued and served on the

petitioner by the 1st respondent. It is further argued that the

1st respondent is now interested to see whether notices are

received by the petitioner. It has accepted the amount paid by

the petitioner even after issuing notices. According to the learned

counsel for the petitioner, the petitioner is a pardanashin lady and

therefore, she had sent interim order of this Court passed in this

writ petition to the 1st respondent-Bank through her husband.

8. As against this, learned Standing Counsel appearing for

the 1st respondent-Bank argued that the writ petition proceeds on

the premises that the petitioner has developed a strained

relationship with her husband and he is now staying separately

and that is how she has not received any notices sent by the

secured creditor for following the provisions of the SARFAESI Act.

On this background, learned Standing Counsel drew my attention

to the letter at Annexure R1(a) dated 21.01.2021 under signature

of the husband of the petitioner and pointed out that by this

letter, the husband of the petitioner, who is not a party to this writ

petition, has supplied a copy of the interim order passed by this

Court on the first date of hearing. According to the learned

Standing Counsel, this act by itself shows that the averments

made in the writ petition are totally false. Then the learned

Standing Counsel drew my attention to the compilation produced

by the 1st respondent along with its statement as well as affidavit

to show adherence to the provisions of the SARFAESI Act by the

secured creditor and prayed for dismissal of the writ petition.

9. I have considered the submissions so advanced and

perused the entire materials placed before me. I have already

narrated the averments made by the petitioner in the writ petition

which lead this Court to pass an interim order of staying the

proceedings under the SARFAESI Act despite judgment of the

Hon'ble Apex Court in the matter of Authorized Officer, State

Bank of Travancore and another vs. Mathew K.C (2018(1)

KLT 784). The following is the first order passed by this Court on

18.01.2021.

"Heard the learned counsel appearing for the petitioner. Learned counsel for the petitioner argues that there is total non-compliance of statutory provisions of the SARFAESI Act as no notices as contemplated by the said Act were ever issued by the secured creditor.

Learned standing counsel for the 1st respondent is seeking adjournment. Post after two weeks. In the meanwhile, interim relief as prayed".

This is how by prima facie accepting the contention of the

petitioner that there is total non-compliance of the statutory

provisions of the SARFAESI Act, this Court granted an interim

relief in favour of the petitioner awaiting response of the

1st respondent. Even if it is assumed that the petitioner has not

received any notices under the SARFAESI Act, in the wake of

statement filed by the 1st respondent, this aspect becomes a

disputed question of fact which cannot be adjudicated in writ

jurisdiction by this Court.

10. Be that as it may, statement on affidavit filed by the

1st respondent-secured creditor shows that, on 02.09.2019, a

demand notice recalling the loan and declaring the loan account

as non performing asset came to be issued by the 1 st respondent.

The said notice is at Annexure R1(b). It is seen from the record

and the postal receipt at Annexure R1(p) that the said demand

notice came to be despatched on 12.09.2019 by the

1st respondent. Thereafter, as seen from Annexure R1(d) dated

25.11.2019, possession notice came to be issued by the

1st respondent. Annexure R1(e) is the acknowledgment of that

notice by the partnership firm, M/s.Plyco, owned by the petitioner

and her husband. It seems that, because the acknowledgment of

the possession notice by the individual partner was not returned

to the 1st respondent, the sale notice came to be published in

English and Malayalam dailies and Annexures R1(f) and R1(g) are

the paper publications of the notice of possession. It is averred

by the 1st respondent that even this possession notice was affixed

on the secured asset as well as premises of the loanee.

Thereafter sale notice dated 25.02.2020 came to be issued under

Section 14 of the SARFAESI Act read with Rule 8 of the Security

Interest (Enforcement) Rules, 2002 by the 1 st respondent. The

postal receipts of that notice are also placed on record by the 1 st

respondent and those are at Annexure R1(i). This sale notice is

also published in English and Malayalam dailies and those

documents are at Annexures R1(j) and R1(k). It is contended by

the learned Standing Counsel appearing for the 1st respondent-

Bank that this sale notice was also affixed on the premises of the

loanee as well as secured asset.

11. The statement of the 1st respondent-secured creditor

further shows that, thereafter sale notice at Annexure R1(l) came

to be issued putting the property for sale on 30.01.2021. Then

the petitioner approached this Court with the averments stated in

the foregoing paragraphs of this writ petition. Annexure R1(m) is

the postal tracking report of the sale notice and Annexures R1(n)

and R1(o) are the paper publications of the sale notice in English

as well as Malayalam dailies. Why postal acknowledgment at

Annexure R1(c) bears the stamp of the Vijaya Bank as sender of

the notice is clarified by the 1st respondent in its affidavit filed

today and paragraph 3 of that affidavit reads thus:

"3. I submit that the credit facilities which is the subject matter of the above Writ Petition have been availed by the Borrowers from the chalapuram Branch of the Erstwhile Vijaya Bank. In the meanwhile, the erstwhile Vijaya Bank, was amalgamated with Bank of Baroda (First Respondent Bank) with effect from 01/04/2019 in accordance with a scheme of amalgamation notified by the Ministry of Finance, Department of Financial Services published in the Gazette of India vide GSR No.2(E) dated 02.01.2019. As per the scheme of amalgamation and by operation of law, all assets including Actionable claims, Mortgages, securities, guarantees etc became vested in the first Respondent bank. As such, the first respondent Bank became entitled to recover amounts due from the Borrowers including the petitioner to erstwhile Viajaya Bank by operation of Law being the successor Bank. It is in the said capacity that the Authorised Officer of the First respondent issued Annexure R1(b) demand Notice to the Borrowers including the Petitioner by Registered post Acknowledgment Due. True Copy of the Postal Receipts evidencing dispatch of Annexure R1(b) demand Notice to the Borrowers including the Petitioner is produced herewith and

Marked as Annexure R1(p). In this context it is submitted that in so far as the first respondent was operating from the very same premises as was that of the Erstwhile Vijaya bank and in so far as, practically, it took a considerable time to change the name of the Erstwhile 'Vijaya Bank' to 'Bank of Baroda', the Branches of the Erstwhile 'Vijaya Bank' was permitted to use the office stationery originally used by it before Amalgamation for a considerable time. In the circumstance, it so happened that the Seal of the Erstwhile Vijaya bank happened to be affixed at the place provided for the address of the Sender as revealed from Annexure R1(c) available in page No.11 of the Statement submitted on behalf of the first respondent. As the address of the Sender is only meant for Return of 'Acknowledgment Card' in case of service of the postal Article OR return of 'unserved Cover' in case of non service. It is submitted that the same has no consequence in so far as the Receipt of R1(b) demand notice by the Petitioner is concerned".

The statement made in this paragraph of the affidavit of the

1st respondent clinches the issue. It is thus seen from the

voluminous documents produced by the secured creditor that the

secured creditor has taken steps envisaged by the SARFAESI Act

for recovery of the loan amount which is declared as non-

performing asset. The contrary averments made in the writ

petition sworn by the petitioner as such prima facie contains

misstatements of facts disentitling her from equitable relief. The

contention made in paragraph 7 of the writ petition that no

notices were ever issued and served seems to be factually

incorrect. The averment regarding the strained relationship of

the petitioner with her husband also seems to be factually

incorrect in the light of the fact that it was her husband who had

delivered the interim order of this Court along with covering letter

under his own signature at Annexure R1(a).

12. It is trite that one who seek equitable relief must

approach this Court with clean hands. This writ petition is an

example as to how to approach the court by not keeping one's

hand clean. The petitioner is certainly not entitled for equitable

relief of declaring the action taken by the 1 st respondent-Bank

under the SARFAESI Act illegal. The following are the

observations of the Hon'ble Apex Court in Mathew K.C 's case

(supra), in paragraphs 5, 9 to 15 and 17.

"5. ....... The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule

is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:

"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569, that :-

"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial

institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :-

"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other

financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

* * *

55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."

11. In Union Bank of India and another vs. Panchanan Subudhi, 2010 (15) SCC 552, further proceedings under Section 13(4) were stayed in the writ jurisdiction subject to deposit of Rs.10,00,000/- leading this Court to observe as follows :

"7. In our view, the approach adopted by the High Court was clearly erroneous. When the respondent failed to abide by the terms of one-time settlement, there was no justification for the

High Court to entertain the writ petition and that too by ignoring the fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act."

12. The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782 observing:

"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)"

13. In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the 'SARFAESI Act' available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing :

"27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented.

28.......In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge."

14. A similar view was taken in Punjab National Bank and

another vs. Imperial Gift House and others, (2013) 14

SCC 622, observing:-

"3. Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court.

4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the Bank."

15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say

that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade

Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :-

"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."

So far as the prayer for instalments is concerned, there is nothing

concrete coming from the side of the petitioner to consider that

request. Moreover, misstatement of facts made in the writ

petition by the petitioner does not allow me to tilt the balance of

equity in favour of the petitioner. Grant of instalments is the

discretion of the financial institute. This writ petition as such is

totally misconceived and devoid of merit. I refrain myself from

imposing cost on the petitioner.

The writ petition is accordingly dismissed.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE LETTER DATED 3.9.2018 ISSUED BY VIJAYA BANK, CHALAPURAM,CALICUT DISTRICT TO M/S PLYCO

EXHIBIT P2 A TRUE COPY OF THE PAPER PUBLICATION CIRCULATED IN MALAYAALA MANORAMA DAILY DATED 8.1.2021 WITH ENGLISH TRANSLATION

EXHIBIT P3 A TRUE COPY OF THE COMMON DEPOSIT SLIP DATED 29.9.2020 ISSUED BY THE FIRST RESPONDENT BANK FOR AN AMOUNT OF RS 5,00,000/-

EXHIBIT P4 TRUE COPY OF THE COMMON DEPOSIT SLIP DATED 6.11.2020 ISSUED BY THE FIRST RESPONDENT BANK FOR AN AMOUNT OF RS 50,000/-

RESPONDENTS' ANNEXURES:

ANNEXURE R1(a) TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE HUSBAND OF THE PETITIONER TO THE REGIONAL OFFICE OF THE RESPONDENT BANK DTD.21.01.2021.

ANNEXURE R1(b) TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE AUTHORISED OFFICER OF THE RESPONDENT BANK UNDER SECTION 13(2) OF THE SARFAESI ACT 2002 DTD.02.09.2019.

ANNEXURE R1(c) TRUE COPIES OF THE ACKNOWLEDGEMENT CARDS EVIDENCING RECEIPT OF DEMAND NOTICE BY THE BORROWERS INCLUDING THE PETITIONER.

ANNEXURE R1(d) A TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE AUTHORISED OFFICER OF THE RESPONDENT BANK DTD.25.11.2019.

ANNEUXRE R1(e) A TRUE COPY OF THE ACKNOWLEDGMENT CARD SHOWING RECEIPT OF POSSESSION NOTICE BY THE FIRM OF THE PETITIONER.

ANNEXURE R1(f) A TRUE COPY OF THE POSSESSION NOTICE PUBLISHED IN NEW INDIAN EXPRESS DAILY (ENGLISH).

ANNEXURE R1(g) A TRUE COPY OF THE POSSESSION NOTICE PUBLISHED IN DESABHIMANI DAILY (MALAYALAM VERSION).

ANNEXURE R1(h) A TRUE COPY OF THE SALE NOTICE ISSUED BY THE AUTHORISED OFFICER OF THE RESPONDENT BANK TO THE BORROWERS IS PRODUCED HEREWITH 27.02.2020.

ANNEXURE R1(i) TRUE COPIES OF THE POSTAL RECEIPTS EVIDENCING DESPATCH OF SALE NOTICE TO THE BORROWERS INCLUDING THE PETITIONER. ANNEXURE R1(j) A TRUE COPY OF THE SALE NOTICE PUBLISHED IN NEW INDIAN EXPRESS DAILY (ENGLLISH) ANNEXURE R1(k) A TRUE COPY OF THE SALE NOTICE PUBLISHED IN DESABHIMANI DAILY (MALAYALAM VERSION) ANNEXURE R1(l) A TRUE COPY OF THE SALE NOTICE ISSUED BY THE AUTHORISED OFFICER OF THE RESPONDENT BANK TO THE BORROWERS DTD.8.1.2021 ANNEXURE R1(m) TRUE COPIES OF THE POSTAL RECEIPTS EVIDENCING DESPATCH OF SALE NOTICE TO THE BORROWERS INCLUDING THE PETITIONER. ANNEXURE R1(n) A TRUE COPY OF THE SALE NOTICE PUBLISHED IN HINDU DAILY (ENGLISH) ANNEXURE R1(o) A TRUE COPY OF THE SALE NOTICE PUBLISHED IN MALAYALA MANORAMA DAILY (MALAYALAM VERSION) ANNEXURE R1(p) TRUE COPIES OF THE POSTAL RECEIPTS EVIDENCING DESPATCH OF ANNEXURE R1(b) DEMAND NOTICE TO THE BORROWERS INCLUDING THE PETITIONER.

True Copy

P.S to Judge

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