Amisha Jaisingh Gaikwad vs Manager; State Bank Of India
2022 Latest Caselaw 12073 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
                        WP(C) NO. 38415 OF 2022
PETITIONER/S:

          AMISHA JAISINGH GAIKWAD
          AGED 20 YEARS
          D/O LATE JAISINGH GAIKWAD; RESIDING AT: GAIKWAD HOUSE,
          XIV/427, J.M. COTTAGE, S.N.ROAD, KOORKANCHERY P.O.,
          THRISSUR, PIN - 680007
          BY ADVS.
          SAMEER M NAIR
          MANU RAMACHANDRAN
          M.KIRANLAL
          R.RAJESH (VARKALA)
          GEETHU KRISHNAN
          SAILAKSHMI MENON


RESPONDENT/S:

    1     MANAGER; STATE BANK OF INDIA
          MAYANNAD BRANCH, SITUATED AT: KUNUPADAM BUILDINGS,
          MAYANNAD P.O., KOLLAM, PIN - 691020
    2     THE AUTHORIZED OFFICER UNDER SECURITIZATION ACT
          STATE BANK OF INDIA, OFFICE AT: SARB
          THIRUVANANTHAPURAM, LMS COMPOUND, VIKAS BHAVAN P.O.,
          HIRUVANANTHAPURAM, PIN - 695033
    3     LATA JAISINGH GAIKWAD
          AGED 40 YEARS
          W/O LATE JAISINGH GAIKWAD; RESIDING AT: GAIKWAD HOUSE,
          XIV/427, J.M. COTTAGE, S.N.ROAD, KOORKANCHERY P.O.,
          THRISSUR, PIN - 680007
    4     SRAVAN JAISINGH GAIKWAD
          AGED 18 YEARS
          RESIDING AT: GAIKWAD HOUSE, XIV/427, J.M. COTTAGE,
          S.N.ROAD, KOORKANCHERY P.O., THRISSUR, PIN - 680007
          BY ADV AMAL GEORGE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 38415 OF 2022              2




                                 JUDGMENT

Petitioner has approached this Court, being aggrieved

by the proceedings initiated against the petitioner under the

provisions of the SARFAESI Act to recover amounts due

under a cash credit facility availed by the late father of the

petitioner.

2. When this matter is taken up for consideration

today, learned counsel appearing for the respondent bank

submits that having regard to the contentions taken in the

writ petition, this is a matter which can be adjudicated only

under Section 17 of the SARFAESI Act and no relief,

whatsoever, can be granted to the petitioner in proceedings

under Article 226 of the Constitution of India.

3. Learned counsel appearing for the petitioner

refers to the facts of the case and submits that the petitioner

is only 20 years old and she is taking earnest efforts to clear

the liability of the bank. It is submitted that if the

possession of the secured asset is taken , the petitioner, her

mother and her younger brother will be thrown to streets. It

is submitted that the petitioner may be permitted to

approach the bank with a proposal for One Time Settlement.

4. Having heard the learned counsel appearing for

the petitioner and the learned counsel appearing for the

respondent bank, I am of the view that there is considerable

merit in the contention taken by the learned counsel

appearing for the respondent bank that the legality of

proceedings initiated under the provisions of the SARFAESI

Act can be properly determined only in a Securitisation

Application under Section 17 of the SARFAESI Act.

However, considering the peculiar facts and circumstances

of the case and considering the fact that the petitioner

wishes to pursue a claim for One Time Settlement, I direct

that further proceedings against the petitioner under the

provisions of the SARFAESI Act shall be kept in abeyance,

for a period of three weeks from today to enable the

petitioner to approach the bank with a proposal for One

Time Settlement. Within the aforesaid time, it will also be

open to the petitioner to approach the Debts Recovery

Tribunal, if so advised. Any proposal for One Time

Settlement, that may be submitted by the petitioner, shall be

considered by the competent authority of the respondent

bank having regard to the norms for grant of One Time

Settlement .

The writ petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 38415/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE DEATH CERTIFICATE OF LATE JAISINGH GAIKWAD Exhibit P2 A TRUE COPY OF THE EMAIL MAKING ENQUIRY INTO THE SAID INSURANCE AND REQUEST TO SETTLE THE ISSUE Exhibit P3 A TRUE COPY OF THE NOTICE FROM ADVOCATE COMMISSIONER ISSUED AS ON 21.11.2022 Exhibit P4 A TRUE COPY OF THE CORPORATION LICENSE OF JM BAKES DATED 06.07.2022 Exhibit P5 A TRUE COPY OF THE RTI PREFERRED BY 4TH RESPONDENT DATED 11.08.2022 RESPONDENT EXHIBITS Exhibit R1(a) True photocopy of the notice for demand issued by the respondent Bank under Section 13(2) of the SARFAESI Act dated 10/12/2021 Exhibit R1(b) True photocopy of the consolidated reply caused to be issued by the petitioner and respondents 3 and 4 dated 17/12/2021 Exhibit R1(c) True photocopy of the reply sent by the respondent Bank under Section 13(3A) of the SARFAESI Act dated 03/01/2022 Exhibit R1(d) True photocopy of the possession notice issued by the respondent Bank to the petitioner and respondents 3 and 4 dated 05/03/2022