Rafeeque vs Authorised Officer
2021 Latest Caselaw 8313 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                       WP(C).No.6438 OF 2021(D)


PETITIONER:

               RAFEEQUE
               AGED 47 YEARS
               S/O. AHAMED KOYA T., KAROOTH HOUSE, VAIDYARANGADI
               P.O., RAMANATTUKKARA, KOZHIKODE-673633.

               BY ADVS.
               SRI.ARUN BABU
               SRI.G.HARIPRASAD
               SRI.RIPPLE HAMZA

RESPONDENTS:

      1        AUTHORISED OFFICER,
               KRUR VYSYA BANK, ERNAKULAM DIVISION OFFICE, KPCC
               JUNCTION, M.G. ROAD, ERNAKULAM-682018.

      2        KARUR VYSYA BANK LIMITED,
               11/128, PRAMOD BUILDING, CHEROOTY ROAD, KOZHIKODE-
               673001, REPRESENTED BY ITS BRANCH MANAGER.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.6438 OF 2021(D)

                                   2

                             JUDGMENT

Dated this the 12th day of March 2021

Heard the learned counsel for the petitioner. The petitioner has

made the following prayers in the instant petition.

(a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to grant sufficient time for regularizing the entire debts of the petitioner in account number 15012283000000422, maintained with the 1st respondent.

(b) Issue writ of mandamus or any other appropriate writ, order or direction directing the respondents not to proceed against the property of the petitioner, which is a secured asset, as per Ext.P1 notice.

2. The learned counsel for the petitioner argued that the

petitioner had took a secured overdraft facility from the respondents

by mortgaging 41 cents of his property and now, the respondents

have issued a notice at Ext.P1 for possession of the said property. The

petitioner is therefore, entitled for the interim relief of stay of the

proceedings under the SARFAESI Act. The learned counsel for the

petitioner further argued that in some other loan, the petitioner had

approached this Court and this Court has granted instalments.

3. The petition as framed and filed is not maintainable in the

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

Authorized Officer, State Bank of Travancore and another vs.

Mathew K.C ((2018) 3 Supreme Court Cases 85)(DB). WP(C).No.6438 OF 2021(D)

4. The petitioner, by the indirect way, is challenging the action

under the SARFAESI Act by filing the instant petition and therefore, as

the petitioner is having alternate and most efficacious remedy in the

matter, the petition cannot be entertained by this Court.

5. So far as the prayer of the petitioner for instalment is

concerned, the matter is contractual between the parties. The

petitioner was already having facility of instalment and now again,

after declaring the amount of financial assistance as a non-performing

asset, the respondents have taken an action under the SARFAESI Act

which have ultimately culminated into issuance of possession notice.

The instalment as claimed therefore, amounts to regularization of loan

which is the prerogative of the secured creditor and this Court cannot

interfere in the same.

In the light of foregoing discussion, the petition is dismissed.

Sd/-

A.M.BADAR Nsd //true copy// JUDGE PA to Judge WP(C).No.6438 OF 2021(D)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE NOTICE DATED 19/01/2021 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.