Aleykutty Poulose vs State Of Kerala
2021 Latest Caselaw 8175 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

   WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

                       WP(C).No.6201 OF 2021(A)

PETITIONERS:

      1        ALEYKUTTY POULOSE
               AGED 79 YEARS
               W/O. PAULOSE, KALATHINAMATTATHIL HOUSE, KELAKAM P.O.,
               KELAKAM VILLAGE, IRITTY TALUK, KANNUR DISTRICT,PIN-
               670 674

      2        MR.K.P.TOMY,
               AGED 49 YEARS
               S/O. PAULOSE, KALATHINAMATTATHIL HOUSE, KELAKAM P.O.,
               KELAKAM VILLAGE, IRITTY TALUK, KANNUR DISTRICT,PIN-
               670 674

               BY ADV. SRI.P.T.ABHILASH

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
               DEPARTMENT OF LAND REVENUE, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001

      2        THE DISTRICT COLLECTOR,
               CIVIL STATION, COLLECTORATE ROAD, THAVAKKARA,
               KANNUR ,PN-670 002

      3        THE AUTHORISED OFFICER,
               THE SOUTH INDIAN BANK, REGIONAL OFFICE, KVR TOWER,
               PAMAN MADAHVAN ROAD, TALAP, KANNUR-670 002

      4        THE BRANCH MANAGER,
               SOUTH INDIAN BANK, PERAVOOR BRANCH, PERAVOOR, KANNUR
               DISTRICT,PIN-670 673

      5        THE CONVENOR,
               STATE LEVELS BANKERS COMMITTEE CELL, CANARA BANK
               BUILDING, M.G ROAD, THIRUVANANTHAPURAM-695 001


               GP-SRI.JAFAR KHAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.6201 OF 2021(A)

                                      2

                                JUDGMENT

Dated this the 10th day of March 2021

Petitioner has prayed for the following reliefs.

(I) Issue a writ of mandamus or any other appropriate writ, order or direction to the 3rd and 4th respondent to stay the entire proceedings against the petitioners, till the final disposal of the matter pending before the 5 th respondent as directed by Ext.P10 judgment, forthwith;

(II) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3 rd and 4th respondents not to proceed the recovery proceedings against the petitioners till the disposal of the OA No. 52/2020 pending before DRT-1, Ernakulam, forthwith;

(III) Issue a writ of certiorari to quash entire proceedings before the Hon'ble CJM, Thalassery to take possession of the agricultural property owned by the petitioners, and provide reasonable time to the petitioners till the final disposal of pending OA No. 52/2020 and Ext.P7 before the 5th respondent, forthwith;

(IV) Issue such other writ, order or direction which may deem fit in the facts and circumstances of the case.

2. Learned counsel for the petitioner argued that in the year

2019, petitioner has received notice of the Advocate Commissioner at

Ext.P8 informing that he will be visiting the premises of the secured

assets for taking possession on 15/10/2019. The learned counsel for

the petitioner argued that thereafter, the petitioner approached this

Court by filing writ petition bearing number WP(C) 28007/2019 which

was decided on 13.01.2020. My attention is drawn by the learned

counsel for the petitioner to paragraph 6 of the judgment which reads WP(C).No.6201 OF 2021(A)

thus:

"The submissions on both sides are recorded. Without getting into the merits of the controversy in any manner, and solely for the purpose of preservation of subject matter of the lis, it is ordered that further coercive steps in pursuance to the impugned proceedings will be kept in abeyance by the respondent Bank for a limited period of one month from today. "

3. With this, the learned counsel for the petitioners further

argued that thereafter, the 4th respondent secured creditor had

approached the Debt Recovery Tribunal for recovery of dues by filing

Original Application No.52/2020 which is pending for hearing and is

now fixed on 04/05/2021. The learned counsel for the petitioner

further argued that the respondents are trying to evict the petitioners

from the secured assets, though the same is an agricultural land.

Therefore, the respondents be restrained from taking possession of

the secured assets till disposal of the Original Application No.52/2020.

4. I have considered the submissions so advanced and

perused the materials placed before me along with memo of petition.

Undisputedly, the petitioner had availed financial assistance from the

respondent No.4 Bank, but he has failed to repay that loan. The notice

at Ext.P1 issued under the SARFAESI Act by the 4 th respondent to the

petitioners makes it clear that the loan was declared as non- WP(C).No.6201 OF 2021(A)

performing asset and the petitioners were called upon to pay the

outstanding amount of Rs.54,35,014/- with interest immediately. The

petitioners were warned that failing to comply the notice at Ext.P1

dated 17/04/2017, further action under the SARFAESI Act will be

taken. Ext.P3 is the possession notice issued by the 4 th respondent to

the petitioner under Rule VIII(1) of the Security Interest

(Enforcement) Rules, 2002 as well as under Section 13 of the

SARFAESI Act.

5. The communication at Ext.P8 shows that the learned Chief

Judicial Magistrate had appointed the concerned advocate as

commissioner for taking possession of the secured asset and that is

how, the possession of the secured asset was to be taken on

15/10/2019. Feeling aggrieved by this communication, the petitioner

had approached this Court by filing writ petition bearing

No.28007/2019 in which the order mentioned in above referred

paragraph came to be passed and the coercive steps were directed to

be kept in abeyance for a limited period of one month from the date of

this judgment at Ext.P10. That one month is already over since long.

6. In these facts and circumstances, the instant petition is

filed for challenging the steps which are being taken by the secured

creditor under the SARFAESI Act for taking possession of the secured WP(C).No.6201 OF 2021(A)

asset. The original application bearing no. 52/2020 filed by the

secured creditor for recovery of money is reportedly pending before

the Debt Recovery Tribunal. The petitioner has not pointed out the

averments in that application for perusal of this Court.

7. Nothing is pointed out to show that the secured assets are

comprising of agricultural land. Even if that is so, the remedy if any

with the petitioner is to approach the DRT to show that the steps

taken by the secured creditor under the SARFAESI Act are illegal and

unsustainable.

In the light of foregoing discussion, the petition as framed and

filed challenging the action taken by the secured creditor under the

SARFAESI Act is not maintainable in view of judgment of the Hon'ble

Apex Court in the matter of Authorized Officer, SBT & Another

Vs. Mathew KC ((2018) 3 SCC 85). The same is accordingly

dismissed.

Sd/-

A.M.BADAR Nsd //true copy// JUDGE PA to Judge WP(C).No.6201 OF 2021(A)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 17.04.2017 TO THE 2ND PETITIONER

EXHIBIT P2 TRUE COPY OF THE GUARANTEE INVOCATION LETTER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER WITH REF NO.BR/GEN/LR.02/15- 16 DATED 17.04.2017

EXHIBIT P3 TRUE COPY OF THE POSSESSION NOTICE DATED 29.08.2017 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P4 TRUE COPY GOVERNMENT ORDER ISSUED BY THE 1ST RESPONDENT IN GO (MS) 367/2018 DATED 12.10.2018

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 16.08.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 16.08.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE AGRICULTURAL MINISTER V.S.SUNIL KUMAR

EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE HON'BLE MINISTER DATED 22.08.;2019 TO THE 1ST PETITIONER

EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER AS PER THE ORDER OF CMP NO 4581/19 HON'BLE CHIEF JUDICIAL MAGISTRATE, THALASSERY DATED 15.10.2019

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 18.10.2019 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT

EXHIBIT P10 PHOTO COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 13.01.2020 IN WPC NO.28007/2019

EXHIBIT P11 TRUE COPY OF THE RECEIPT DATED 23.10.2019 FOR THE PAYMENT OF RS 3,00,000/- (THREE LAKSHS ONLY) BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT WP(C).No.6201 OF 2021(A)

EXHIBIT P11A TRUE COPY OF THE RECEIPT DATED 10.02.2020 ISSUED BY THE 4TH RESPONDENT FOR PAYMENT OF RS 25,000/- BY THE 2ND PETITIONER

EXHIBIT P12 TRUE COPY OF THE CERTIFICATE DATED 04.03.2021 ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KELAKAM