Kerala High Court
We Build (P) Ltd vs State Bank Of India on 8 December, 2022
W. A. Nos. 1596 & 1706 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 8TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA,
1944
WA NO. 1596 OF 2022
AGAINST THE JUDGMENT WP(C) 28391/2021 OF HIGH COURT OF
KERALA
APPELLANT/S:
WE BUILD (P) LTD.,
HAVING ITS REGISTERED OFFICE AT TC 16/713,
JAGATHY, THIRUVANANTHAPURAM - 695014. REPRESENTED
BY ITS MANAGING DIRECTOR MR. C KAMALASANAN S/O.
CHELLAPPAN AGED 80 YEARS, RESIDING AT "SHRUTHY",
TC16/712, JAGATHY, THIRUVANANTHAPURAM-695014.
BY ADV MILLU DANDAPANI
RESPONDENT/S:
1 STATE BANK OF INDIA,
(ERSTWHILE STATE BANK OF TRAVANCORE) POOJAPPURA
BRANCH, POOJAPPURA P.O. THIRUVANANTHAPURAM-
695012. REPRESENTED BY THE CHIEF MANAGER,
2 THE AUTHORISED OFFICER/CHIEF MANAGER,
STATE BANK OF INDIA, POOJAPPURA BRANCH,
THIRUVANANTHAPURAM-695012.
3 THE CHIEF MANAGER /AUTHORISED OFFICER,
STATE BANK OF INDIA, STRESSED ASSETS RECOVERY
BRANCH, LMS COMPOUND, OPPOSITE MUSEUM WEST GATE,
VIKAS BHAWAN P.O, THIRUVANANTHAPURAM-695033.
4 THE GENERAL MANAGER,
LOCAL HEAD OFFICE, STATE BANK OF INDIA, S.S.
KOVIL ROAD, THIRUVANANTHAPURAM-695 001.
BY ADV. JAWAHAR JOSE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.12.2022, ALONG WITH WA.1706/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W. A. Nos. 1596 & 1706 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 8TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA,
1944
WA NO. 1706 OF 2022
APPELLANT/S:
WE BUILD (P) LTD.
HAVING ITS REGISTERED OFFICE AT TC. 16/713,
JAGATHY,
THIRUVANANTHAPURAM-695014,
REPRESENTED BY ITS MANAGING DIRECTOR
MR.C.KAMALASANAN, S/O.CHELLAPPAN, AGED 80 YEARS,
RESIDING AT "SHRUTHY", TC 16/712,
JAGATHY, THIRUVANANTHAPURAM-695014.
BY ADV MILLU DANDAPANI
RESPONDENT/S:
1 STATE BANK OF INDIA ,
(ERSTWHILE STATE BANK OF TRAVANCORE) POOJAPPURAM
BRANCH, POOJAPPURA.P.O,
THIRUVANANTHAPURAM-695012.
2 THE AUTHORISED OFFICER/CHIEF MANAGER,
STATE BANK OF INDIA, POOJAPPURA BRANCH,
THIRUVANANTHAPURAM-695012.
3 THE CHIEF MANAGER/ AUTHORISED OFFICER,
STATE BANK OF INDIA, STRESSED ASSETS RECOVERY
BRANCH, LMS COMPOUND,
OPPOSITE MUSEUM WEST GATE, VIKAS BHAVAN.P.O,
THIRUVANANTHAPURAM-695033.
4 THE GENERAL MANAGER,
LOCAL HEAD OFFICE, STATE BANK OF INDIA, S.S.KOVIL
ROAD, THIRUVANANTHAPURAM-695001.
BY ADV. JAWAHAR JOSE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.12.2022, ALONG WITH WA.1596/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W. A. Nos. 1596 & 1706 of 2022
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JUDGMENT
Shaji P. Chaly, J.
The captioned appeals are filed by a Private Limited Company
challenging the common judgment of the learned Single Judge in W.
P. (C) No. 28391 of 2021 and R. P. No. 149 of 2022 in I. A. No. 4 of
2022 dated 11.10.2022.
2. The subject issue arises under the SARFAESI Act, 2002.
When the writ petition was admitted to the files of the writ Court, in I.
A. No. 4 of 2022, confirmation of the sale was stayed by the learned
Single Judge; however, later it was modified and permitted the Bank to
confirm the sale. The said order was sought to be reviewed by the
appellant by filing R. P. No. 149 of 2022. Accordingly, the learned
Single Judge reviewed the order and has passed an interim order dated
14.02.2022 restraining the Bank from carrying out registration of the
secured assets in favour of the auction purchasers.
3. After considering the rival submissions and taking into
account the judgments of the Hon'ble Apex Court in United Bank of
India v. Satyawati Tondon [(2010) 8 SCC 110], Kanaiyalal
W. A. Nos. 1596 & 1706 of 2022
Lalchand Sachdev v. State of Maharashtra [(2011) 2 SCC 782],
Sri. Siddeshwara Co-operative Bank Ltd. v. Ikbal [(2013) 10 SCC
83], CIT v. Chhabil Dass Agarwal [(2014) 1 SCC 603], Agarwal
Tracom Pvt. Ltd. v. Punjab National Bank [(2018) 1 SCC 626],
State Bank of Travancore v. Mathew K. C. [(2018) 3 SCC 85] and
Phoenix ARC Pvt. Ltd. v. Vishwa Bharati Vidya Mandir and
Others [(2022) 5 SCC 345], the learned Single Judge by judgment
dated 11.10.2022 has dismissed the writ petition and the review
petition leaving open the liberty of the appellant to approach the Debts
Recovery Tribunal. Anyhow, the interim order granted by the learned
Single Judge in R. P. No. 149 of 2022 on 14.02.2022 was extended for
a further period of three weeks so as to enable the appellant to
approach the tribunal.
4. When the writ appeals were admitted to the files of this Court,
this Court also directed the Bank not to effect registration of the
document pursuant to the confirmation of the sale until further orders
from this Court, on 08.11.2022. The said order is still in force.
5. In fact the appellant has approached this Court earlier by filing
W. P. (C) No. 12035 of 2020 challenging the correctness of the Debt
W. A. Nos. 1596 & 1706 of 2022
Recovery Tribunal which was dismissed as per judgment dated
15.10.2020 and though W. A. No. 267 of 2021 was filed, it was also
dismissed as per the judgment dated 15.03.2021. The Special Leave
Petition preferred against the said judgment, was also dismissed as per
an order dated 18.11.2021 in SLP (C) NO. 18813 of 2021 by the
Hon'ble Apex Court.
6. The paramount contention advanced in the writ petition is
that the writ petition was filed at a time when the tribunal was not
sitting at Kochi and therefore by virtue of the order passed by the
Hon'ble Apex Court in SLP (C) No. 10911 of 2021, the learned Single
Judge ought to have considered the writ petition on its merits. Other
contentions are also raised with respect to the illegality in the sale
conducted etc.
7. We have heard learned counsel for the appellant Sri. Millu
Dandapani, and Sri. Jawahar Jose for the respondent Bank and its
officials and perused the pleadings and material on record.
8. The sole question to be considered is whether any interference
is required to the judgment of the learned Single Judge.
W. A. Nos. 1596 & 1706 of 2022
9. In fact, the learned Single Judge has dismissed the writ
petition taking into account the legal position as on today with respect
to entertainment of the writ petition against the proceedings initiated
under the SARFAESI Act, 2002. It is unequivocal and clear from the
proposition of law laid down in the judgments by the Hon'ble Apex
Court that no writ petition can be entertained when the aggrieved
person has an equally efficacious remedy before the tribunal. It is true
that the writ petition was filed at a time when the tribunal was not
sitting and the appellant has secured an interim order against the Bank
from proceeding further even though the sale was confirmed.
10. The paramount contention advanced by the appellant, as we
have pointed out above, is that the writ court ought to have entertained
the writ petition in view of the directions contained in SLP (C) No.
10911 of 2021. On a perusal of the order passed by the Hon'ble Apex
Court in the said petition, we are of the view that even though the High
Courts were directed to entertain the matters falling within the
jurisdiction of the Debts Recovery Tribunals and the Debts Recovery
Appellate Tribunals under Article 226 of the Constitution of India, it is
made clear in the said order that once a tribunal is constituted, the
W. A. Nos. 1596 & 1706 of 2022
matters shall be relegated to the tribunals by the High Courts. It is in
accordance with the directives contained in the Special Leave Petition
alone the learned Single Judge dismissed the writ petition leaving open
the liberty of the appellant to approach the tribunal.
11. In fact, in the instant case, the sale notice is under challenge
on various grounds. It is clear from Section 17 of the Act 2002 that the
tribunal is conferred with sufficient power and jurisdiction to consider
such aspects. Therefore, In view of the settled legal position that could
be culled out from the judgments of the Hon'ble Apex Court referred
to supra, we do not think that the appellant has made out any case for
interference in a proceeding under Article 226 of the Constitution of
India. Therefore the learned Single Judge was right in dismissing the
writ petition and relegating the appellant to the tribunal constituted for
the purpose.
12. We are also of the view that the contentions advanced by the
appellant in the writ petition as well in the writ appeal are matters
coming absolutely within the jurisdiction of the tribunal and we are of
the clear opinion that the appellant has not made out any case for
invoking the extraordinary jurisdiction conferred on this Court under
W. A. Nos. 1596 & 1706 of 2022
Article 226 of the Constitution of India.
Needless to say, writ appeals fail and accordingly, they are
dismissed. However the interim order granted by this Court on 8 th
November 2022, that registration shall not be done will stand extended
for a further period of one week from the date of receipt of a copy of
this judgment so as to enable the appellant to approach the competent
forum.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
