Kerala High Court
Sanjeev Charles vs India Bulls Housing Finance Ltd on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(C) NO. 10347 OF 2021
PETITIONER:
SANJEEV CHARLES
AGED 62 YEARS, S/O CHARLES,
7D, KOWDIAR MANOR,
JAWAHAR NAGAR, TRIVANDRUM.
BY ADV LIZA P.CHERIAN
RESPONDENTS:
1 INDIA BULLS HOUSING FINANCE LTD
M-62, FIRST FLOOR,
CONNAUGHT PLACE,
NEW DELHI,
REPRESENTED BY ITS AUTHORIZED OFFICER-110001.
2 THE AUTHORIZED OFFICER
INDIA BULLS HOUSING FINANCE LTD,
M-62, FIRST FLOOR,
CONNAUGHT PLACE,
NEW DELHI-110001.
BY ADV SRI.MADHU RADHAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.09.2021, THE COURT ON 23.09.2021, DELIVERED THE FOLLOWING:
W.P.(C) No.10347 of 2021
2
BECHU KURIAN THOMAS, J.
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W.P.(C) No.10347 of 2021
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Dated this the 23rd day of September, 2021
JUDGMENT
Petitioner challenges the notice issued by the Advocate
Commissioner proposing to take possession of the properties
created as security interest. A direction is also sought to conduct an
auction of one of the properties and take possession of the
residential building only thereafter, if required.
2. When the Advocate Commissioner appointed by the Chief
Judicial Magistrate under section 14 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short 'the Act'), issued a notice to take
possession of the security interest created by the petitioner in favour
of the respondent financial institution on 12-04-2021, petitioner
rushed to this Court, invoking jurisdiction under Article 226 of the
Constitution of India. In an attempt to save the residential building of
W.P.(C) No.10347 of 2021
the petitioner, it was pleaded that one of the security interests
created was a landed property having a value of more than Rs.25
Crores while the liability of the petitioner to the respondents was only
Rs.4 Crores and only a portion of the security interest was required
to clear the entire liability. It was also pleaded that on an earlier
occasion, the Advocate Commissioner had taken possession of the
landed property of the petitioner and had brought the same for sale.
However, since the auction could not be conducted, respondents
have now proceeded against the residential building of the petitioner.
3. On 30-04-2021, when this writ petition came up for
admission, an interim order was granted directing the respondents
not to dispossess the petitioner from his residential apartment for a
period of six weeks on condition that petitioner deposits an amount of
Rs.15 lakhs within 30 days. When this case came up on 14-09-2021,
it was submitted that petitioner had not complied with the condition
as stipulated in the earlier order dated 30-04-2021.
4. Advocate Liza P. Cherian, the learned counsel for the
petitioner, vehemently contended that the respondent bank can
W.P.(C) No.10347 of 2021
proceed to recover the liability of the petitioner from the security
interest created over one acre of property, which according to her,
was situated in one of the prime localities of Thiruvananthapuram.
She also sought a time of seven days for complying with the
condition imposed on 30-04-2021.
5. In spite of the objections raised by the learned counsel for
the respondent financial institution and persuaded by the impressive
arguments of the counsel for the petitioner, this Court dictated an
order in open court, granting seven more days from 14-09-2021 to
comply with the condition imposed by this Court in its earlier order.
6. Though the aforesaid order granting time to the petitioner to
comply with the condition was dictated in open court, during the
course of the day, the learned counsel for the respondent bank
submitted that, when the officials of the respondent bank went to the
landed property to take possession, they found numerous
obstructions existing over the property and hence requested for an
urgent hearing on the matter. In view of the aforesaid submission,
without signing the order granting extension of time, this case was
W.P.(C) No.10347 of 2021
posted to the next day, i.e., 15-09-2021.
7. When the matter was taken up on 15-09-2021, petitioner
filed I.A. No.2 of 2021 to accept additional documents, I.A. No.3 of
2021 to extend time for payment as directed in the order dated
30-04-2021, I.A. No.4 of 2021 to stay the notice issued by the
Advocate Commissioner to take over possession of the property and
I.A. No.7 of 2021 to accept additional documents, while the
respondents filed I.A. No.5 of 2021 to vacate the interim order and
I.A. No.6 of 2021 to accept documents.
8. In the above background and in view of the vehement
objections of the respondents, this Court proceeded to consider the
merits of the case and heard the arguments of Adv.Liza P. Cherian,
the learned counsel for the petitioner as well as Adv.Madhu
Radhakrishnan, the learned counsel for the respondents.
9. Apart from reiterating the contentions in the writ petition, the
learned counsel for the petitioner submitted that the security interest
created by the petitioner was several times more valuable than the
total liability, and hence all properties need not be subjected to
W.P.(C) No.10347 of 2021
dispossession or sale. It was further stated that the landed property
of one acre situated in close proximity to an important institution in
Thiruvananthapuram was more than sufficient to clear off the
liabilities and hence, relying upon the decision in Ambati Narasayya
v. M.Subba Rao and Another (AIR 1990 SC 119), it was canvassed
that possession of both properties need not be taken and that it
would suffice if the landed property alone is taken possession and
sold and if any balance remains, the residential apartment of the
petitioner can then be proceeded against.
10. On the other hand, the learned counsel for the
respondents submitted that the petitioner has an efficacious remedy
to approach the Debts Recovery Tribunal, challenging the measures
taken to dispossess the petitioner and that it has been repeatedly
held in numerous decisions that the High Courts shall not interfere
under Article 226 of the Constitution of India in proceedings initiated
under the Act. It was also submitted that several impediments have
been created over the one acre of property by the petitioner himself
and that the same will not fetch the value as alleged and no willing
W.P.(C) No.10347 of 2021
purchaser will come forward to purchase it. Respondents further
contended that it was the bank's prerogative to decide to proceed
against all or any of the security interests created and the borrower
has no right to dictate to the bank on this count.
11. I have considered the rival contentions. At this stage of the
deliberations itself, it is noted that, petitioner had failed to comply with
the condition ordered by this Court to deposit Rs.15,00,000/-, within
30 days from 30-04-2021. Petitioner did not even seek an extension
of time within the period stipulated for complying with the condition.
The petition for extension of time was filed only on
13-09-2021 as I.A. No.3 of 2021. In such circumstances, this Court
finds that the conduct of the petitioner does not merit any indulgence
or sympathy at the hands of this Court.
12. Be that as it may, in the decision reported in Authorised
Officer, State Bank of Travancore and Another v. Mathew K.C.
[(2018) 3 SCC 85] and in a catena of decisions, the Supreme Court
has held that ordinarily, the relief under Article 226 or 227 of the
Constitution of India is not available when an efficacious alternative
W.P.(C) No.10347 of 2021
remedy is available to any aggrieved person. Similarly, in United
Bank of India v. Satyawati Tondon and Others [(2010) 8 SCC 110]
also the Supreme Court observed that a writ petition ought not to be
entertained in view of the alternate statutory remedy available under
the SARFAESI Act.
13. In the latter of the decisions referred to above, it was
observed as follows: "Unfortunately, the High Court overlooked the settled
law that the High Court will ordinarily not entertain a petition under Art.226 of the
Constitution if an effective remedy is available to the aggrieved person and that
this rule applies with greater rigour in matters involving recovery of taxes, cess,
fees, other types of public money and the dues of banks and other financial
institutions. In our view, while dealing with the petitions involving challenge to the
action taken for recovery of the public dues, etc. the High Court must keep in
mind that the legislations enacted by Parliament and State Legislatures for
recovery of such dues are a code unto themselves inasmuch as they not only
contain comprehensive procedure for recovery of the dues but also envisage
constitution of quasi - judicial bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such cases, the High Court must insist that
before availing remedy under Art.226 of the Constitution, a person must exhaust
the remedies available under the relevant statute. It is a matter of serious
W.P.(C) No.10347 of 2021
concern that despite repeated pronouncements of this Court, the High Courts
continue to ignore the availability of statutory remedies under the DRT Act and
the SARFAESI Act and exercise jurisdiction under Art.226 for passing orders
which have serious adverse impact on the right of banks and other financial
institutions to recover their dues. ..........We hope and trust that in future the
High Courts will exercise their discretion in such matters with greater caution,
care and circumspection."
14. In yet another recent decision of this Court in Green Valley
Farms, Attapady and Another v. Syndicate Bank, Palakkkad
Branch and Others (2019 (5) KHC 960), it was reiterated that the
High Court should not interfere in exercise of the extraordinary
jurisdiction when a remedy under the statute is available.
15. The contention that one of the properties over which
security interest was created alone is sufficient to clear the entire
liabilities to the respondent bank, is a matter which the petitioner can
ventilate before the Tribunal. In this context it may be apposite to
observe that the respondent bank has produced photographs to
show that, at the time when they attempted to take possession of the
landed property, there were seemingly obstructions created on the
W.P.(C) No.10347 of 2021
said land by strangers. Though the respondent bank has a
contention that the obstructions were created at the behest of the
borrower, the petitioner claims that he has no role in those
obstructions created by the strangers. Petitioner has also filed an
FIR as Crime No.1101 of 2021 against those trespassers. These are
not matters for this Court to consider in the exercise of its
extraordinary jurisdiction under Article 226 of the Constitution.
16. In view of the above, I find that the challenge raised by the
petitioner is not maintainable under Article 226 of the Constitution of
India and no circumstances exist warranting an interference under
the extraordinary jurisdiction of this Court.
The writ petition is therefore dismissed. However, petitioner will
be at liberty to raise all contentions before the jurisdictional Tribunal.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.10347 of 2021
APPENDIX OF WP(C) 10347/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC
28483/2019 DATED 13.11.2019.
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED
12.04.2021.
Exhibit P3 THE TRUE COPY OF NOTICE ISSUED BY
ASSISTANT COMMISSIONER OF SALE TAX.
Exhibit P4 THE TRUE COPY OF ADVOCATE COMMISSIONERS
NOTICE DATED 13-8-2021.
Exhibit P5 THE TRUE COPY OF RELEVANT PAGE OF
MANORAMA NEWSPAPER DATED 9-9-2021.
Exhibit P6 THE TRUE COPY OF PAYMENT RECEIPT
Exhibit P7 TRUE COPY OF THE FIR FROM THE HONOURABLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-V,
TRIVANDRUM DATED 03/09/2021
Exhibit P8 TRUE COPY OF THE PHTOGRAPH OF THE LANDED
PROPERTY
Exhibit P9 TRUE COPY OF THE PHOTOGRAPH OF THE
PETITIONER RECEIVING AWARD FROM
HONOURABLE PRESIDENT OF INDIA
RESPONDENT'S/S' EXHIBITS
EXHIBIT R1(A)(B) PHOTOGRAPHS SHOWING THE TEMPORARY SHEDS
(C)(D) IN THE SCHEDULE PROPERTY
EXHIBIT R2 COMMISSION REPORT SUBMITTED BY THE
ADVOCATE COMMISSIONER DATED 14.9.2021
