M/S. Leo Tourism And Lifespace ... vs The Authorised Officer/Chief ...
2021 Latest Caselaw 13201 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE A.M.BADAR
         THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                        WP(C) NO. 12632 OF 2021
PETITIONER/S:

             M/S. LEO TOURISM AND LIFESPACE DEVELOPERS PRIVATE
             LIMITED,
             REGD. OFFICE AT DOOR NO.14/497, LEO GROUP, SOUTH
             CHELLANAM P.O., COCHIN-682008, REPRESENTED BY ITS
             MANAGING DIRECTOR, DR. GEORGE P. JOSEPH.

             BY ADVS.
             HARISANKAR V. MENON
             MEERA V.MENON
             L.RAJESH NARAYAN
             K.KRISHNA



RESPONDENT/S:

     1       THE AUTHORISED OFFICER/CHIEF MANAGER,
             CSB BANK LIMITED, (FORMERLY THE CATHOLIC SYRIAN BANK
             LIMITED), ASSET RECOVERY BRANCH, VALANJAMBALAM, ERNAKULAM
             SOUTH, KOCHI-682016.

     2       THE MANAGER,
             CATHOLIC SYRIAN BANK LIMITED, MARKET ROAD BRANCH,
             ERNAKULAM-682020.




             BY ADVS.
             MADHU RADHAKRISHNAN- STANDING COUNSEL
             NELSON JOSEPH
             M.D.JOSEPH



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12632 OF 2021                2



                                     JUDGMENT

The petitioner, who happens to be a debtor of

respondents/secured creditor, by this writ petition is challenging the

communication at Ext.P23, which is a notice under Section 13(2)of the

SARFAESI Act, issued by the respondent.

2. Heard both sides.

3. Heard the learned counsel for the petitioner at sufficient length

of time. He argued that the petitioner had entered into a development

agreement with Kerala Region Latin Catholic Bishops Council

(hereinafter referred to as 'the Council' for the sake of brevity)

regarding construction of seminary. It is further submitted that with

the consent of the Council vide communication at Ext.P7, the petitioner

has raised finance against the said project and property regarding

construction of seminary. It is further submitted that thereafter, the

petitioner has executed power of attorney in favour of the respondents

authorising the respondents to receive the payment in respect of the

work executed by the petitioner in respect of construction of seminary

of the Council. With this, it is argued that, though substantial amount

is due from the Council to the petitioner, the same has not been paid

and the respondents have not taken any steps for recovery of the said

amount from the Council. In these premises, according to the learned

counsel for the petitioner, the respondents ought not to have issued

impugned Ext.P3 dated 12.04.2021 under Section 13(2) of the

SARFAESI Act.

4. I have considered the submissions so advanced and perused

the materials placed before me. The petitioner is a debtor, who has

availed financial assistance from the respondents by mortgaging his

property as a security. As seen from the notice under Section 13(2) of

the SARFAESI Act, the petitioner has defaulted in payment of loan and

total amount outstanding against the petitioner as on 31.03.2021 is

Rs.59833688.52. By the impugned notice, the petitioner is directed to

clear the entire amount due together with costs, charges and

expenses, incurred by the secured creditor before the date of

publication of notice for public auction.

5. The contract of development for construction of seminary is a

contract entered into between the petitioner and the Council . The

secured creditor has nothing to do with that contract. The secured

creditor has only permitted the petitioner to raise finance against that

project and property. If any amount is due and payable to the

petitioner by the Council, then it is for the petitioner to get that

amount recovered by taking recourse to the provisions of law. On the

pretext that the petitioner has permitted the respondents/secured

creditor to recover that amount from the Council, the petitioner cannot

impugn the action taken by the respondents/secured creditor under

the SARFAESI Act. Even otherwise, in the light of the 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

petition as framed and filed challenging the action taken by the

secured creditor under the SARFAESI Act is not maintainable. Remedy

of the petitioner lies elsewhere. Hence, the writ petition is dismissed.

SD/-

A.M.BADAR JUDGE ajt

APPENDIX OF WP(C) 12632/2021

PETITIONER ANNEXURE

Exhibit P1 COPY OF DEVELOPMENT AGREEMENT BETWEEN THE PETITIONER AND CONSTRUCTION OF SECRETARIAT OF KERALA REGION LATIN CATHOLIC BISHOPS COUNCIL (KRLCBC), ALUVA-2 DATED 21/11/2011.

Exhibit P2 COPY OF SUPPLEMENTARY AGREEMENT BETWEEN THE PETITIONER AND CONSTRUCTION OF SECRETARIAT OF KERALA REGION LATIN CATHOLIC BISHOPS COUNCIL (KRLCBC), ALUVA-2 DATED 31/03/2013.

Exhibit P4 COPY OF COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOPS' COUNCIL (KRLCBC), ALUVA DATED 31/03/2013.

Exhibit P5 COPY OF COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOPS'S COUNCIL (KRLCBC), ALUVA DATED 30/05/2013.

Exhibit P6 COPY OF COMMUNICATION ISSUED BY THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCL (KRLCBC), ALUVA TO THE PETITIONER. DATED 22/06/2013.

Exhibit P7 COPY OF NO OBJECTION CERTIFICATE ISSUED BY THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 26/07/2013.

Exhibit P8 COPY OF POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF THE 2ND RESPONDENT DATED 24/07/2014.

Exhibit P9 COPY OF THE COERING LETTER ISSUED BY THE 2ND RESPONDENT TO THE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 01/05/2014.

Exhibit P10 .COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 07/09/2015.

Exhibit P11 COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 11/01/2018.

Exhibit P12 COPY OF WORK COMPLETION CERTIFICATE ISSUED BY M/S. BINESH SUKUMAR ARCHITECTS AND PLANNERS, KOCHI TO THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 15/01/2018.

Exhibit P13 COPY OF REPLY FILED BY THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA TO THE 2ND RESPONDENT DATED 25/01/2018.

Exhibit P14 COPY OF REPLY ISSUED BY THE 2ND RESPONDENT TO THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 05/11/2018.

Exhibit P15 COPY OF COMMUNICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15/10/2018.

Exhibit P16 COPY OF REPLY LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 26/10/2018.

Exhibit P17 COPY OF REQUEST SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 01/08/2019.

Exhibit P18 COPY OF REQUEST SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 02/08/2019.

Exhibit P19 COPY OF REQUEST SUBMITTED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED

03/08/2019.

Exhibit P20 COPY OF SHOW CAUSE NOTICE WITH ANNEXURES ISSUED BY THE PETITIONER BEFORE THE KERALA REGION LATIN CATHOLIC BISHOP'S COUNCIL (KRLCBC), ALUVA DATED 18/07/2020.

Exhibit P21 COPY OF COMMUNICATION SUBMITTED BY THE PETITIONER BEFORE THE MANAGER AND THE ZONAL MANAGER OF THE 2ND RESPONDENT BANK DATED 18/07/2020.

Exhibit P22 COPY OF STATEMENT OF THE OVERDRAFT ACCOUNT OF THE PETITIONER PAID BY THE PETITIONER TO THE 2ND RESPONDENT DATED NIL.

Exhibit P23 COPY OF NOTICE NO. ARBEKM/SARFAESI/F-

335/57/2021 ISSUED BY THE 1ST RESPONDENT DATED 12/04/2021.

Exhibit P24 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 04/05/2021.

Exhibit P25 COPY OF REPLY FILED BY THE 1ST RESPONDENT BEFORE THE PETITIONER DATED 19/05/2021.

Exhibit P26 COPY OF REJOINDER FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 27/05/2021.

Exhibit P27 COPY OF PHOTOGRAPHS OF THE PETITIONER'S SITE OFFICE SITE.