Xavierkutty Putheth vs Union Of India
2022 Latest Caselaw 6031 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
                         WP(C) NO. 7986 OF 2022
PETITIONER/S:

          XAVIERKUTTY PUTHETH
          AGED 53 YEARS
          PROPRIETOR, MEREENA TRADING AND EXPORTS, 37/3230,
          PANORAMA ARCADE, EDAPPALLY, KOCHI-682024.
          BY ADVS.
          SHEEN JOSE
          DIPU.R
          SARASWATHI PALEREKEEZHIL
          BASIL MATHEW


RESPONDENT/S:

    1     UNION OF INDIA
          REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMERCE AND
          INDUSTRIES DEPARTMENT, UDYOG BHAVAN, RAFI AHAMMED
          KIDWAL MARG REJPATH ROAD, AREA, NEW DELHI-110011.
    2     THE RESERVE BANK OF INDIA
          SANSAD MARG, NEW DELHI-110001, REPRESENTED BY ITS
          GOVERNOR.
    3     STATE BANK OF INDIA
          SHANMUGAM ROAD, MARINE DRIVE, NEAR MENAKA STOP,
          ERNAKULAM, REPRESENTED BY ITS DEPUTY GENERAL MANAGER-
          682035.
    4     STATE BANK OF INDIA SBI
          STRESS ASSETS RECOVERY BRANCH, STATE BANK OF INDIA, 7TH
          FLOOR,VANKAARATH TOWERS, PALARIVATTOM BYE-PASS
          JUNCTION, ERNAKULAM-682024., REPRESENTED BY IS CHIEF
          GENERAL MANAGER AND AUTHORIZED OFFICER.
    5     STATE LEVEL BANKERS COMMITTEE
          REPRESENTED BY ITS CONVENER AND GENERAL MANAGER, SLBC
          CELL, CANARA BANK, CIRCLE OFFICE, CANARA BANK BUILDING,
          M G ROAD, TRIVANDRUM-695001.
          BY ADV S.EASWARAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7986 OF 2022                 2



                                JUDGMENT

Petitioner has approached this Court, challenging Ext.P18

proceedings, by which symbolic possession of immovable property

belonging to the petitioner is taken by the respondent bank under the

provisions of the Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act (hereinafter referred to as

'the Securitisation Act').

2. Primary contention of the learned counsel for the petitioner

is that Ext.P18 is bad in law on account of the fact that it was not

preceded by a notice under Section 13(2) of the Securitisation Act. It

is submitted that Ext.P18 has been issued after the earlier notice

under Section 13(2) of the Securitization Act had been withdrawn. It

is submitted that Ext.P18 is therefore unsustainable as it was not

preceded by a notice under Section 13(2) of the Securitization Act.

3. Learned Sanding Counsel appearing for the respondent

bank would submit that the contention taken by the learned counsel

for the petitioner is not correct and that Ext.P18 was indeed preceded

by a notice under Section 13(2) of the Act and that the contention of

the learned counsel for the petitioner that the said notice had been

withdrawn is absolutely untenable. He also submits that the writ

petition was filed when there was an order of the Supreme Court of

India permitting persons who would otherwise have to approach the

Debts Recovery Tribunal to file writ petitions challenging proceedings

initiated by the bank under the SARFAESI Act. This was on the ground

that there were no presiding officer at the Debts Recovery Tribunal. It

is submitted that since the Debts Recovery Tribunal has resumed

functioning, it is for the petitioner to challenge Ext.P18 before the

Debts Recovery Tribunal in a manner known to law.

4. Having heard the learned counsel for the petitioner and the

learned Standing Counsel for the respondent bank, I am of the view

that this writ petition can be disposed of, permitting the petitioner to

approach the Debts Recovery Tribunal against the proceedings

initiated by the bank under the SARFAESI Act in a duly constituted

appeal under Section 17 of the said Act. In order to enable the

petitioner to avail sufficient time to file original application, the interim

order granted by this Court on 10.03.2022 and extended thereafter,

will continue to be in operation for a period of three weeks. If any

appeal/stay petition is filed by the petitioner, the same shall be decided

by the Debts Recovery Tribunal untrammeled by any observation by

this Court.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 7986/2022

PETITIONER EXHIBITS Exhibit P18 TRUE COPY OF TH SYMBOLIC POSSESSION DATED 05.03.2022 OF THE 4TH RESPONDENT.

Exhibit P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 15.11.2019.

Exhibit P2 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.11.2019 BETWEEN THE PETITIONER AND RESPONDENT BANK.

Exhibit P3 TRUE COPY OF THE COMMUNICATION FROM THE RESPONDENT BANK DATED 29.02.2020.

Exhibit P4 TRUE COPY OF THE MINUTES OF STATE LEVEL BANKERS COMMITTEE HELD ON 24/8/2018. Exhibit P5 TRUE COPY OF THE LETTER DATED 01.06.2020 OF THE RESPONDENT BANK REQUIRING PETITIONER TO RENEW OF THE INSURANCE POLICY.

Exhibit P6 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT BANK ON 01.06.2020.

Exhibit P7 TRUE COPY OF THE 13(2) NOTICE ISSUED TO THE PETITIONER ON 10.06.2020.

Exhibit P8 TRUE COPY OF THE REQUEST FORWARDED BY THE PETITIONER ON 20.06.2020 TO THE RESPONDENT. Exhibit P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE PETITIONER ON 2/7/2020.

Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED 6/7/2020.

Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED 13.07.2020 OF 4TH RESPONDENT TO THE PETITIONER.

Exhibit P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 17/07/2020.

Exhibit P13 TRUE COPY OF THE PUBLICATION PUBLISHED IN MALAYALAM DAILY NAME MATHRUBHUMI BY THE 4TH RESPONDENT ON 18.11.2021.

Exhibit P14 TRUE COPY OF THE PETITIONER SUBMITTED A DETAILED REPRESENTATION TO THE 4TH RESPONDENT DATED 10.01.2022.

Exhibit P15 TRUE COPY OF THE 4TH RESPONDENT SENT A REPLY DATED 19.01.2022.

Exhibit P16 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE BANKING OMBUDSMAN 22.12.2021.

Exhibit P17 TRUE COPY OF THE ORDER ISSUED BY THE 1ST

RESPONDENT DATED 11.01.2022.

Exhibit P18 TRUE COPY OF THE SYMBOLIC POSSESSION DATED 05.03.2022 OF THE 4TH RESPONDENT.

RESPONDENT EXHIBITS Exhibit R4 (a) TRUE COPY OF THE WRIT PETITION NO.18624 OF 2020 ALONG WITH EXHIBITS.

Exhibit R4 (b) TRUE COPY OF THE JUDGMENT DATED 14.3.2022 IN WPC 18624 OF 2020 Exhibit R4 (c) TRUE COPY OF THE INSPECTION REPORT DATED 26.9.2019 Exhibit R4 (d) TRUE COPY OF THE LETTER DATED 26.9.2019 DECIDED TO REJECT THE CLAIM FOR RESTRUCTURING OF THE ACCOUNT Exhibit R4 (e) TRUE COPY OF THE CIRCULAR NO.DOR.NO BP BC/34/21.4.048/2020-21 ISSUED BY THE RBI ON 6.8.2020