Thaha Mohammad vs The Authorised Officer
2021 Latest Caselaw 22910 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
   TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                       WP(C) NO. 16600 OF 2021
PETITIONER:

          THAHA MOHAMMAD,
          AGED 59 YEARS
          S/O. HASANARU KUNJU, KACHITHARAYIL, KOTTACKUPURAM,
          KLAPPANA P.O., KARUNAGAPPALLY, KOLLAM DISTRICT.
          BY ADVS.
          T.K.ANANDA KRISHNAN
          RENIL ANTO KANDAMKULATHY
          JANAKI KRISHNAN A


RESPONDENTS:

    1     THE AUTHORISED OFFICER,
          FEDERAL BANK LIMITED, LCRD MAVELIKKARA, SATELLITE
          DIVISION, MAVELIKKARA, KOLLAM DISTRICT-690101.
    2     THE MANAGER,
          FEERAL BANK LIMITED, KAYAMKULAM BRANCH, KAYAMKULAM,
          KOLLAM DISTRICT-690502.
    3     SULPHI,
          SOLE PROPRIETOR, M/S. AYIRATH MOTORS, AYIRATH VEEDU,
          KOTTUKULANGARA, KAYAMKULAM P.O., ALAPPUZHA-690502.
    4     SAINUDHEEN KUNJU,
          AYIRATH VEEDU, KOTTUKULANGARA, KAYAMKULAM P.O.,
          ALAPPUZHA-690502.
    5     AMINA,
          W/O. SAINUDHEEN KUNJU, AYIRATH VEEDU, KOTTUKULANGARA,
          KAYAMKULAM P.O., ALAPPUZHA-690502.
          BY ADVS.
          SUNIL SHANKER
          VIDYA GANGADHARAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16600 OF 2021
                                    2




                   BECHU KURIAN THOMAS, J
                 ................................................
                  W.P.(C) NO.16600 OF 2021
           ...........................................
      Dated this the 23rd day of November, 2021


                               JUDGMENT

Petitioner is a guarantor. He challenges the

proceedings initiated by the respondents on the ground

that respondents have not proceeded against the

borrower and are instead targeting only the guarantor.

The borrower is the son-in-law while the co-guarantor

is the daughter of the petitioner.

2. The grievance of the petitioner is that

respondent Bank is refusing to proceed against the

borrower and are instead attempting to proceed

against the property of the guarantors by taking

recourse to the provisions of Section 14 of the

Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act 2002. It is in WP(C) NO. 16600 OF 2021

such circumstances that petitioner has approached this

Court.

3. While this writ petition was pending, the

respondent Bank proceeded against the property of the

borrower and unfortunately, even after bringing the

property of the borrower for sale, no bidders turned up

and hence the sale did not fructify.

4. The aforesaid facts stares at the face of the

petitioner.

5. The respondent Bank cannot be restrained from

proceeding against the guarantors, merely on the

ground that there are properties of the borrower

available, since both liabilities are joint and several. As

a guarantor the petitioner cannot claim any protection

against enforcement of the security interest. Secured

creditor is entitled to proceed simultaneously against

the property of the borrower as well as the guarantors.

In such a view of the matter this Court cannot restrain

the attempts of the respondent Bank in proceeding WP(C) NO. 16600 OF 2021

against the property of the guarantors, especially,

when they were not able to realise the amounts due to

them in their attempts to sell property of the borrower.

6. In such a view of the matter, I find no merit in

the writ petition and accordingly the same is dismissed.

However, petitioner is given liberty to move the

appropriate Tribunal as and when the occasion arises

against the steps that may be initiated by the Bank

against the property, in accordance with law.

Sd/-

BECHU KURIAN THOMAS JUDGE AJM WP(C) NO. 16600 OF 2021

APPENDIX OF WP(C) 16600/2021

PETITIONER'S EXHIBITS :

Exhibit P5 THE TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT C.M.P.1181/21 BEFORE THE C.J.M.COURT, KOLLAM

Exhibit P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE BANK DATED 06/02/2017.

Exhibit P2 THE TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 26/03/2019 UNDER SECTION 13(8) OF THE SARFAECI ACT.

Exhibit P3 THE TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 22/04/2021.

Exhibit P4 THE TRUE COPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT TO THE EXT. P3 NOTICE.

Exhibit P5 THE TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT CMP NO.1181/21 BEFORE THE CJM COURT, KOLLAM.

Exhibit P6 THE TRUE COPY OF THE NOTICE ISSUED IN CMP 1181/2021BY THE CJM COURT, KOLLAM.

RESPONDENT'S EXHIBITS : NIL


AJM              //TRUE COPY//     PA TO JUDGE