Venukumar T vs The Authorized Officer
2021 Latest Caselaw 6583 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                       WP(C).No.4680 OF 2021(H)


PETITIONER:

              VENUKUMAR T.
              AGED 57 YEARS
              S/O THIRAVIYAN PILLAI, SREEPADMAN VALIYAKALUNGU
              PARANDODE P O, ARYANADU, TRIVANDRUM-695542.

              BY ADVS.
              SRI.M.R.SARIN
              SMT.S.GREESHMA SHANMUKHAN

RESPONDENT:

              THE AUTHORIZED OFFICER
              CANARA BANK,
              FORT BRANCH,
              TRIVANDRUM-695023.


OTHER PRESENT:

              SRI. M.GOPIKRISHNAN NAMBIAR, SC.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.4680/2021              2


                             JUDGMENT

Dated this the 24th day of February 2021

Heard the learned counsel for the petitioner. He argued

that the petitioner is ready and willing to clear off the entire

overdue amount in instalments. By drawing my attention to the

sale notice at Ext.P1 issued under Rules 8 and 9 of the Security

Interest (Enforcement) Rules, 2002, learned counsel for the

petitioner submits that the notice is dated 05.02.2021 whereas

sale is proposed to be held on 26.02.2021. Therefore, there is

no clear 30 days notice of sale and on this ground of illegality,

this Court can entertain the writ petition. It is further argued

that the petitioner can deposit an amount of Rs.1 or 2 lakhs and

as such, this Court may stay the proposed sale which is to be

held on 26.02.2021.

2. Learned Standing Counsel appearing for the

respondent-Bank submits that it was in the year 2005, loan of

about Rs.5 lakhs was obtained by the petitioner from the

respondent and the same has been declared as non performing

asset in the year 2008. According to the learned Standing

Counsel, as on 24.02.2021, the overdue amount is about

Rs.12,43,021/-. Learned Standing Counsel prays for dismissal of

the writ petition.

3. I have considered the submissions so advanced.

Though the petitioner, in clear terms, has not challenged the

action taken by the secured creditor under the SARFAESI Act,

the purport of the argument of the learned counsel for the

petitioner shows that the petitioner wants to stall the sale of the

secured asset scheduled to be held on 26.02.2021. The

petitioner has alternate and most efficacious remedy of

challenging the sale on the alleged ground of illegality in the sale

notice before the learned Debts Recovery Tribunal. This Court

cannot entertain the writ petition so far as it relates to challenge

to the steps taken by the secured creditor for enforcing security

interest under the SARFAESI Act. The position of law is

crystallised by the Hon'ble Apex Court on this aspect in the

matter of Authorized Officer, State Bank of Travancore and

another vs. Mathew K.C reported in 2018(1) KLT 784.

So far as the request for instalment to repay the overdue

amount is concerned, it is seen that the loan has become non-

performing asset in the year 2008. The petitioner has rushed to

the court on 23.02.2021 when the sale notice dated 05.02.2021

came to be issued. There is no concrete suggestion for

instalments and what is prayed is grant of 25 equal monthly

instalments for payment of the entire amount due to the

respondent. The loan became non performing asset way back in

the year 2008 and therefore, such request for instalments

cannot be considered as a genuine request, in the light of

opposition from the respondent to grant such facility.

This writ petition, therefore, fails and the same is

dismissed.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE SALE NOTICE ISSUED TO PETITIONER BY THE RESPONDENT ON 5.2.21.

RESPONDENT'S EXHIBITS: NIL.

True Copy

P.S to Judge

smp