Sony Sebastian vs Kerala State Co-Operative Bank ...
2022 Latest Caselaw 7895 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
                       OP (DRT) NO. 288 OF 2022
PETITIONERS:

    1     SONY SEBASTIAN
          AGED 56 YEARS
          W/O. SEBASTIAN, PATHIKKATT HOUSE, RAJAPURAM P.O,
          POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.

    2     SEBIN SEBASTIAN,
          AGED 27 YEARS
          S/O. SEBASTIAN VARKEY, PATHIKKATT HOUSE, RAJAPURAM P.O,
          POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.

    3     SEBASTIAN VARKEY
          AGED 58 YEARS
          S/O. LATE VARKEY, PATHIKKATT HOUSE, RAJAPURAM P.O,
          POOMANKANDAM, IDUKKI DISTRICT, PIN - 685604.

          BY ADVS.
          VARGHESE C.KURIAKOSE
          ALBIN A. JOSEPH



RESPONDENTS:

    1     KERALA STATE CO-OPERATIVE BANK LTD.,
          IDUKKI COLONY P.O, IDUKKI DISTRICT, PIN - 685602,
          REPRESENTED BY ITS AUTHORISED OFFICER

    2     THE AUTHORISED OFFICER,
          KERALA STATE CO-OPERATIVE BANK LTD, IDUKKI COLONY P.O,
          IDUKKI DISTRICT, PIN - 685602.

          BY ADV GILBERT GEORGE CORREYA




     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P (DRT) No.288/2022                           -2-

                                      JUDGMENT

The petitioners have approached this court being aggrieved by the fact that

physical possession of the residential house of the 1st petitioner which was a secured

asset in so far as the 1st respondent bank is concerned has been taken even before

proceedings under Section 13 (4) of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act (hereinafter referred to

as the Securitisation Act) have been finalized. It is submitted that going by the

judgment of the Supreme Court in Kanaiyalal Lalchand Sachdev and others

v. State of Maharashtra and others; (2011) 2 SCC 782 the taking of physical

possession can only be done after action under Section 13 (4) is initiated. It is

submitted that though a slightly different view has been taken in Standard

Chartered Bank and others v. Noble Kumar and others; (2013) 9 SCC

620, this court in Roshan Narayanan C.S. v. Authorised Officer, Central

Bank of India and another; 2017 (4) KLT 1172 has found that when there are

mutually irreconcilable decisions of the Supreme Court and the latter judgment

does not refer to the earlier judgment, then the earlier judgment will have to be

followed. Specific reference is made to paragraph 13 of this court judgment in

Roshan Narayan (supra) where this court held as follows:-

"13. I might add, at this juncture, that this court is mindful of the plethora of judicial precedents which state that, when confronted with two or more mutually irreconcilable decisions of the Supreme Court, that are cited at the bar, the inviolable recourse is to apply the earliest view, as the succeeding ones would fall in the category of per incuriam (See: Sandeep Kumar Bafna v State of Maharashtra & Anr

- 2014 (16) SCC 623). In the instant case, it would have been easy for this court to brush aside the decision in Noble Kumar (supra) as per incuriam, as the said decision does not refer to the earlier decisions of concurrent benches in Satyawati Tandon (Supra) and Kanaiyalal (Supra). My attempt in this judgment, however, has been to reconcile the said decisions in the light of the statutory provisions."

2. The learned Standing Counsel appearing for the 1 st respondent

vehementally opposes the grant of any relief. Firstly it is submitted that the

petitioners are chronic defaulters and the liability as on date in excess of

Rs.33,00,000/-. It is submitted that the petitioners have also moved before the

Debts Recovery Tribunal through a duly constituted securitization application and

there is no cause of action whatsoever for the petitioners to approach this court by

invoking the writ jurisdiction of this court under Article 226 of the Constitution of

India. It is submitted that the law laid down in Noble Kumar (supra) is categoric

and that action under Section 14 of the Securitization Act can be initiated even at

the stage of demand notice under Section 13 (2) of the SARFAESI Act. It is

submitted that there is absolutely no conflict between the decision in Noble

Kumar (supra) and the earlier decision in Kanaiyalal Lalchand Sachdev

(supra) as the question considered in Kanaiyalal Lalchand Sachdev (supra)

was completely different and the issue considered was whether an appeal would lie

under Section 17 in respect of an action taken under Section 14 of the Act. It is

submitted that while considering that question the Supreme Court came to the

conclusion that since taking of possession was also a measure under Section 13 (4)

an appeal would certainly lie against the taking of possession under Section 14 of

the SARFAESI Act.

3. Considering the fact that the secured asset which is now taken

possession is stated to the residential house of the 1 st petitioner, I suggested the

learned counsel appearing for the petitioner that pending consideration of the stay

application before the Debts Recovery Tribunal, the physical possession of the

residential house can be restored on payment of some amount to the 1 st respondent

bank. The learned counsel for the petitioners would state that the petitioners would

be willing to sum equivalent to 10% of the total outstanding as a condition for

obtaining the possession of the secured asset, pending consideration of the stay

application by the Debts Recovery Tribunal. The learned Standing counsel has

reluctantly accepted this proposal. Accordingly this original petition will stand

disposed of directing that on the petitioner paying a sum of Rs.3.35 lakhs to the 1 st

respondent bank towards the loan liability, the physical possession of the

residential house of the 1st petitioner which has been taken by the 1 st respondent

bank shall be returned to the 1 st petitioner. Further proceedings under the

SARFAESI Act against the petitioners will depend on the orders to be passed by the

Debts Recovery Tribunal in the stay application filed in the securitization

application. The possession of the residential house of the 1 st petitioner shall be

restored within one week from the date on which the payment of Rs.3.35 lakhs is

made to the 1st respondent bank.

Original petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE

AMG

APPENDIX OF OP (DRT) 288/2022

PETITIONER EXHIBITS

Exhibit P1 DEMAND NOTICE DATED 05.01.2021 ISSUED BY THE DEFENDANTS BANK.

Exhibit P2 OBJECTIONS DATED 05.02.2021 SUBMITTED BY THE APPLICANTS.

Exhibit P3 REPLY DATED 09.02.2021 ISSUED BY THE DEFENDANTS BANK.

Exhibit P4 A DETAILED OBJECTION SUBMITTED BY THE APPLICANTS DATED 02.03.2022.

Exhibit P5 ORDER DATED 24.05.2022 IN MC.NO. 268/2022 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA.