Anilkumar V. Nair vs The Authorized Officer (Chief ...
2021 Latest Caselaw 10385 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                       WP(C).No.8080 OF 2021(H)


PETITIONER:

               ANILKUMAR V. NAIR
               AGED 51 YEARS
               M/S SAMRAT MIDDLE EAST EXPORTS PVT. LTD.,
               S/O VASUDEVAN NAIR, PARRY JUNCTION, COCHIN-682 005.

               BY ADVS.
               SMT.E.V.MOLY
               SRI.ROHAN BABU JOSEPH

RESPONDENTS:

      1        THE AUTHORIZED OFFICER (CHIEF MANAGER)
               SARD, STRESSED ASSETS RECOVERY BRANCH (SBI)
               40/974, IIND FLOOR, R.S BUILDINGS, MG ROAD,
               ERNAKULAM, COCHIN-682 011.

      2        STATE BANK OF INDIA, SH40,
               THALAVADY, VYASAPURAM, ALAPPUZHA-688 521,
               REPRESENTED BY ITS AUTHORIZED OFFICER.



               BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR), STANDING
               COUNSEL
               SRI.JITHESH MENON, STANDING COUNSEL

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.8080 OF 2021(H)

                                       2

                                  JUDGMENT

Dated this the 26th day of March 2021

Heard both sides.

2. The petitioner is praying for allowing him to settle the

over draft account within a reasonable period under the One

Time Settlement Scheme. The petition is circulated urgently

before this Court because sale is scheduled to be held today.

The learned counsel for the petitioner submits that the petitioner

desires to repay the entire over standing amount within a period

of one month from today.

3. The learned counsel appearing for respondents

opposed the petition by contending that the overdue amount is

more than Rs.7.27 Crores and even on earlier occasion, the

petitioner has came up before this Court on the last date when

the auction was scheduled and this Court had refused to grant

relief to the petitioner. The Writ Appeal challenging the judgment

of the learned Single Judge of this Court is also dismissed and as

the auction is fixed today no interference should be made by this

Court in the writ jurisdiction.

4. I have considered the submissions so advanced and

perused the materials placed before me. The petitioner has

made default in repayment of loan and that is how the acting WP(C).No.8080 OF 2021(H)

under the provisions of Rule 8(6) of the Security Interest

(Enforcement Rules, 2002), respondents, Secured Creditor had

issued a notice for sale of immovable property, which was

offered as security for availing loan by the petitioner. The sale is

scheduled to be held today.

5. Even on earlier occasion when the sale was

scheduled, the petitioner had approached this Court with similar

relief by filing W.P.(C) No.34050 of 2019 and the said petition

came to be disposed of vide judgment dated 12 th December,

2019, Ext.P1. It is apposite to reproduce paragraph 4 of that

judgment, which read thus :

"4. I have already adverted to the writ prayers and the petitioner tries to convince this Court to grant stay of Ext.P5 sale notice. This Court is constrained to remark that the present writ petition is filed more or less on the last day of schedule given in Ext.P5 sale notice. As rightly pointed out by Senior Adv. Sri. K.K. Chandran Pillai, the steps taken so far would be rendered meaningless, if this Court in any way or atleast on the submission made by the petitioner, interferes with the on going process of sale. The petitioner, for both the reasons, namely, that the effective remedy is before the Debts Recovery Tribunal and that the equity is also not in favour of the petitioner, the writ petition must fail."

6. Similar is the situtation in the instant case. Today the

sale is scheduled and the petitioner has came up before this WP(C).No.8080 OF 2021(H)

Court by seeking urgent circulation of this writ petition which is

filed today.

7. What is sought to be challenged in the indirect

manner is the action taken under the SARFAESI Act by the

Secured Creditor by getting the sale stalled. In the light of

judgment of the Hon'ble Apex Court in the matter of

Authorised Officer, State Bank of Travancore and another

vs. Mathew K. C ((2018) 3 Supreme Court Cases 85)(DB)), this

Court cannot interfere in the action of intended sale of the

secured asset. The interim relief, which is being sought by the

petitioner is to stay the further proceedings under the SARFAESI

Act. Rather that seems to be the only reason for filing the instant

petition.

8. As the petitioner has alternate and most efficacious

remedy of approaching the Debt Recovery Tribunal (DRT) in the

matter, this is not a fit case to interfere in the writ jurisdiction.

The petition is accordingly rejected.

The petitioner is at liberty to avail the alternate remedy.

Sd/-

A.M.BADAR

JUDGE DK WP(C).No.8080 OF 2021(H)

APPENDIX PETITIONER'S EXHIBITS:

     EXHIBIT P1            THE TRUE COPY OF THE JUDGMENT DATED
                           12.12.2019 IN WPC 34050/2019

     EXHIBIT P2            THE TRUE COPY OF THE SALE

NOTICE/PUBLICATION DATED 3.3.2021(WITH TRANSLATION)

RESPONDENTS' EXHIBITS: NIL