Kerala High Court
Shaji.N vs The Authorized Officer on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WP(C).No.1559 OF 2021(T)
PETITIONERS:
1 SHAJI.N
AGED 53 YEARS
S/O. NARAYANAN, PROPRIETOR, M/S. VAISAKH MARKETING,
PP VI/1357/1, USHUS BUILDING, POTHENCODE P.O.,
THIRUVANANTHAPURAM DISTRICT, PERMANENTLY RESIDING AT
NARAYANA, POTHENCODE P.O., THIRUVANANTHAPURAM
DISTRICT.
2 MOLLY S.
AGED 45 YEARS
W/O. SHAJI, PERMANENTLY RESIDING AT NARAYANA,
POTHENCODE P.O., THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.SHAJIN S.HAMEED
SHRI.MELWIN BYJU
RESPONDENT:
THE AUTHORIZED OFFICER
ASSISTANT VICE PRESIDENT, THE FEDERAL BANK LTD.,
LCRD/THIRUVANANTHAPRUAM DIVISION, 4TH FLOOR, FEDERAL
TOWERS, STATUE, THIRUVANANTHAPURAM DISTRICT, PIN
CODE-695001.
SC-SRI. SUNIL SANKAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.1559 OF 2021(T)
2
JUDGMENT
Dated this the 21st day of January 2021
Heard both sides.
2. Learned counsel for the petitioners argued that the
petitioners had taken loan of Rs.25,00,000/- for their business and that
of Rs.30,00,000/- for housing in the year 2017. Because of the losses
caused to the business, they could not regularly service those loans. It
is further argued that during the pandemic, Covid-19, action for
recovery of loan was taken by resorting to the SARFAESI Act and now
the petitioners want to clear the business loan, so also they want to
clear the overdue amount housing loan if installments are given for
payment of outstanding amount of the loan for the purpose of
regularization.
3. The learned counsel appearing for the respondent opposed
the petition by contending that in the light of the possession notice at
Ext.P1, the petitioners have alternative remedy and therefore, the
petition is not maintainable. He further argued that the respondent has
noticed that a 3rd party has been inducted in the mortgage property and
that 3rd party is intending to purchase the mortgage property by
securing loan from ICICI Bank.
4. I have considered the submissions so advanced and perused
the possession notice at Ext.P1. It is seen that on declaring the loan as
WP(C).No.1559 OF 2021(T)
non-performing asset by issuing notice under Section 13(2) of the
SARFAESI Act, now the respondent has issued a notice of possession.
That possession notice shows that outstanding amount of loan against
the mortgaged property is Rs.29,42,966.56/- as well as Rs.30,06,335/-.
5. Though, there are averments to the effect that the
petitioners are willing to pay off the entire outstanding liability of the
housing loan as well as the entire business loan in installments, the
petitioners are virtually challenging the possession notice at Ext.P1 and
the relief sought is for stay all proceedings in pursuance to the
possession notice issued under the SARFAESI Act.
In this view of the matter, in the light of judgment of the Hon'ble
Apex Court in the matter of the Authorized Officer, State Bank of
Travancore and another vs. Mathew K.C ((2018) 3 Supreme
Court Cases 85)(DB), because of the availability of alternate and most
efficacious statutory remedy, the petition impugning the action of the
secured creditor taken under the SARFAESI act against the borrower
cannot be validly entertained. The petition is accordingly dismissed.
Needless to mention that the petitioner is free to avail alternate remedy,
if so advised.
Sd/-
A.M.BADAR
Nsd JUDGE
WP(C).No.1559 OF 2021(T)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE POSSESSION NOTICE DATED
2.1.2021 ISSUED BY THE RESPONDENT BANK.
//true copy//
PA to Judge
