K.K. Alias vs The Bank Of India
2022 Latest Caselaw 9865 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                 &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                      WA NO. 1338 OF 2017
  AGAINST THE JUDGMENT IN WPC 1089/2017 OF HIGH COURT OF
                    KERALA DATED 15.2.2017
APPELLANT/1ST RESPONDENT:

           K.K. ALIAS
           S/O. KURIAKOSE, KOCHAKKAM HOUSE,
           NOW RESIDING AT KURUMBALAKATTU HOUSE,
           MANEEDU VILLAGE, NECHUR P.O,
           MUVATTUPUZHA, ERNAKULAM DISTRICT PIN-686 664

           BY ADV SRI.P.T.JOSE


RESPONDENTS/PETITIONER, RESPONDENTS 2-4:

    1      THE BANK OF INDIA
           REP. BY THE AUTHORIZED OFFICER,
           ERNAKULAM BRANCH,SHANMUGHAM ROAD,
           ERNAKULAM - 682031.
    2      LEELAMMA JOHN, W/O. K.P JOHN,
           RESIDING AT KURUMBALAKATTU HOUSE,
           MANEEDU VILLAGE, NECHUR P.O MUVATTUPUZHA,
           ERNAKULAM DISTRICT PIN - 686 664.
    3      ALPHONSE JOSEPH VADAKKAN
           S/O.V.C JOSEPH RESIDING AT AYODHYA, F.A.C LANE,
           VYTILLA P.O, ERNAKULAM DISTRICT - 682 019.
    4      THE STATE OF KERALA
           REP BY PUBLIC PROSECUTOR, DISTRICT
           COURT,ERNAKULAM - 682 011.

           BY ADV.
           SRI.JAWAHAR JOSE,STANDING COUNSEL,BANK OF INDIA
OTHER PRESENT:
        SMT. ASHITHA FOR APPELLANT,

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
    W.A.1338/2017
                                     2


                             JUDGMENT

Dated this the 31st day of August, 2022

S. Manikumar, CJ.

Before the writ court petitioner has sought for the

following reliefs:

"(I) Issue a writ in the nature of certiorari quashing all further proceedings in Crl.R.P No.75/2016 on the files of the 1st Additional Sessions Court, Ernakulam (ie., Exhibit- P6 proceedings) including Exhibit-P7 order, as the said proceedings is ultra-vires the SARFAESI Act.

(ii) Declare that the Additional Sessions Court, Ernakulam, has no subject matter jurisdiction to adjudicate Crl.R.P No.75/2016 in accordance with the provisions of Criminal Procedure Code."

2. Short facts leading to filing of the writ petition are as

under:

2.1. The petitioner is a nationalized bank. The petitioner

has approached this Court being aggrieved by Exhibit-P7 order of

the Additional Sessions Court, Ernakulam. Whereby, the

proceedings initiated by the petitioner under the provisions of

the Securitization and Reconstruction of Financial Assets and W.A.1338/2017

Enforcement of Security Interest Act (SARFAESI), 2002 was

stayed, which according to the petitioner is without jurisdiction.

2.2. The respondents 2 and 3, who are the partners of M/s.

Green Earth, have availed a cash credit loan from the petitioner

bank, way back in the year 2015. As the borrower was irregular in

the repayment of loan, the bank has classified the said loan

account as N.P.A and initiated the recovery proceedings under

the SARFAESI Act 2002.

2.3. Leelamma John and Alphons Joseph Vadakkan,

respondents 2 and 3 have challenged the proceedings under the

SARFAESI Act, before the writ court in W.P (C) No.30998 of 2015,

and the said case was disposed by Exhibit-P1 judgment.

2.4. As per Exhibil-P1 judgment, this Court has directed the

borrowers to remit an amount of Rs.4,00,000/- within six weeks.

However,the borrowers have not complied with the direction in

Exhibit-Pl judgment.

2.5. Alphons Joseph Vadakkan, the 3rd respondent then

approached the Debts Recovery Tribunal (DRT) with a

securitisation application, in which, the contentions were W.A.1338/2017

withdrawn and prayer was made for standardization of the

account.

2.6. Standardization sought for was permitted by Ext.P2, on

condition of Alphons Joseph Vadakkan, the 3rd respondent

remitting an amount of Rs.12,00,000/- on or before 21.03.2016.

The direction was on the basis of an undertaking made by the 3 rd

respondent, which was not complied with.

2.7. When the Bank again proceeded for recovery, Alphons

Joseph Vadakkan, the 3rd respondent again approached this

Court by filing W.P(C). No.11783 of 2016, which was dismissed by

Ext.P3 judgment dated 4.4.2016 and that the said judgment was

later on confirmed by a Hon'ble Division Bench, vide Ext.P4

judgment in W.A. No.820 of 2016 dated 8.4.2016.

2.8. The petitioner bank thereafter has approached the

Chief Judicial Magistrate Court, Ernakulam, for taking physical

possession of thee secured asset, invoking the authority under

section 14 of the SARFAESI Act, 2002. The learned Magistrate has

appointed an Advocate Commissioner for taking possession of

the property. In the meantime, the 1 st respondent has filed an

interlocutory application before the C.J.M Court, contending that W.A.1338/2017

the said respondent is a tenant occupying the secured asset, and

that the 1st respondent cannot be summarily evicted by the

petitioner, in a proceeding under section 4 of the SARFAESI Act,

2002. The learned Magistrate considered the contentions of the

1st respondent and found that the 1st respondent is not a tenant

and dismissed the petition by Exhibil-P5 order. The 1st respondent

has challenged Exhibit-P5 order before the Sessions Court,

Ernakulam, invoking the revisional jurisdiction specified in

sections 397 and 399 of the Criminal Procedure Code by fling

Exhibil-P6 memorandum of revision by petition.

2.9. The learned Sessions Judge vide Exhibil-P7 order has

stayed the proceedings initiated by the bank, without hearing the

the petitioner bank.

2.10. It is submitted that the learned Sessions Judge has no

jurisdiction under the Criminal Procedure Code to stay the

recovery proceedings initiated by the bank under the SARFAESI

Act. Hence this writ petition.

3. Taking note of the rival submissions and decision

reported in Radhakrishnan V.N v. State of Kerala [2008 KHC

989], writ court ordered thus:

W.A.1338/2017

"5. The Bank contends that a revision is not maintainable, before the Sessions Court especially since the jurisdiction conferred on the CJM is under a special statute and the exercise of such jurisdiction cannot be considered to be an exercise of the functions of a Criminal Court as seen from Section 397 of the Criminal Procedure Code. The above position is settled by a decision of the Division Bench of this Court in Radhakrishnan V.N v. State of Kerala [2008 KHC 989]. The proceedings initiated before the Sessions Court, in which Ext.P7 order has been issued is totally without jurisdiction. The respondent Bank need not wait for the proceedings to be finalised, especially since the same has been invoked without jurisdiction. On declaring the revision proceedings invoked, to be without jurisdiction, there is no reason why the CJM should be interdicted from invoking the power under Section 14 of the SARFAESI.

7. It is also submitted that as of now, there is no Officer in the First Additional Sessions Court, Ernakulam, who could be directed to look into the revision. In such circumstance, there shall be declaration that the proceedings initiated before the First Additional Sessions Judge, is without jurisdiction and that the CJM would be entitled to proceed on the application filed by the Bank under Section 14 of the SARFAESI Act. Even then the remedy of the 1 st respondent against the impugned order of the CJM before the DRT is left open. The writ petition would stand allowed with the above reservation. No Costs."

Being aggrieved by the judgment in W.P(C).No.1089 of 2017

dated 15.2.2017, instant appeal is filed.

W.A.1338/2017

5. On this day, when the matter came up for hearing, Ms.

Ashitha representing learned counsel on record submitted that

the writ appeal is not pressed.

Placing on record the above, writ appeal is dismissed as not

pressed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.