Shibu Job C vs The Authorised Officer
2022 Latest Caselaw 5334 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

   FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944

                    WP(C) NO. 6647 OF 2022

PETITIONERS:

    1     SHIBU JOB C.,
          S/O.JOB,
          MEKKATTUKULAM HOUSE,
          KOMBARA, ERNAKULAM 682 018
    2     BENCY SHIBU
          W/O. SHIBU JOB C,
          CHEERAN HOUSE NO. 24,
          MEKKATTUKULAM HOUSE, KOMBARA,
          ERNAKULAM 682 018
    3     GEORGE M.I.,
          S/O.ITTY MATHEW,
          MEKKATTUKULAM HOUSE,
          KOMBARA, ERNAKULAM 682 018
    4     SUSI GEORGE
          W/O. GEORGE,
          MEKKATTUKULAM HOUSE,
          KOMBARA, ERNAKULAM 682 018
          BY ADV N.SASI



RESPONDENT:

          THE AUTHORISED OFFICER
          THE SOUTH INDIAN BANK LTD,
          REGIONAL OFFICE, PLATINUM JUBILEE BUILDING,
          CIVIL LINE ROAD, AYYANTHOLE,
          THRISSUR 680 003
 W.P.(C) No.6647/22
                                   -:2:-

              BY ADV S.EASWARAN,SC


       THIS     WRIT   PETITION    (CIVIL)    HAVING    COME    UP    FOR
ADMISSION       ON   20.05.2022,   THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.6647/22
                                       -:3:-


                      BECHU KURIAN THOMAS, J.
                       -----------------------------------------
                           W.P.(C) No.6647 of 2022
                       ----------------------------------------
                     Dated this the 20th day of May, 2022

                                  JUDGMENT

Petitioners have preferred this writ petition challenging the

proceedings initiated under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002 (for

short 'the Act). One of the contentions raised by the petitioners is

with respect to inclusion of two items of properties (Item Nos.6 and 7

in Ext.P8) in the proceedings under section 14 of the Act. According

to the petitioners, the said two items of properties were in fact

released by the bank itself much earlier and therefore including the

said properties in the proceedings under section 14 of the Act was

patently perverse warranting interference by this Court. It was also

pointed out that, the amounts now sought to be recovered has no

bearing on the actual amounts due from the petitioners and that the

petitioners are prejudiced due to the inflated amounts sought to be

recovered.

2. Learned counsel for the respondent on the other hand W.P.(C) No.6647/22

referring to Ext.R1(b) order of the Chief Judicial Magistrate dated

05.03.2022 submitted that, though petitioners are correct in pointing

out the inclusion of two items of properties in Ext.P8, on noticing the

said mistake, the bank had moved appropriate application for

deleting the said items and by the above mentioned order, the

learned Magistrate has directed deletion of Items Nos.6 and 7 from

the schedule of property to be taken possession of. Learned counsel

further submitted that the dispute relating to the quantum is a matter

which has to be adjudicated before the statutory Tribunal.

3. Having heard the arguments of Sri.N.Sasi, learned counsel

for the petitioners and Sri.S.Easwaran, learned Standing Counsel for

the respondent, I am of the view that petitioners have an alternative

remedy before the Tribunal and recourse to Article 226 is not

justified. The contention regarding the inclusion of properties that

were already released is not correct since Ext.R1(b) shows that the

learned Magistrate has already deleted those two properties. Thus,

what remains is the dispute on quantum.

4. Since the petitioners have been enjoying an interim order

from 28.02.2022 onwards, I am of the view that if the petitioners

intend to pursue the challenge against the proceedings initiated W.P.(C) No.6647/22

under the Act, they must pursue the said remedy before the statutory

Tribunal and not under Article 226 of the Constitution of India.

5. Accordingly, reserving the liberty of the petitioners to pursue

the statutory remedy, this writ petition is disposed of by extending the

interim order already granted on 28.02.2022 till 02.06.2022. It is

clarified that grant or extension of the interim order is not a reflection

upon the merits of the case and the Tribunal will be free to consider

the application, if any, preferred by the petitioners independently and

on its own merits.

The writ petition is disposed of as above.

Sd/-

BECHU KURIAN THOMAS JUDGE vps W.P.(C) No.6647/22

APPENDIX OF WP(C) 6647/2022 PETITIONER'S/S' EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE DATED 11.12.2019 ISSUED BY THE RESPONDENT TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE DATED 12.3.2020 ISSUED BY THE RESPONDENT TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE MC NO 295/2020 DATED 16.7.2020 FILED BY THE RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT DATED 16.7.2020 FILED BY THE RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM EXHIBIT P5 TRUE COPY OF THE ORDER DATED 7.12.2021 BY THE CHIEF JUDICIAL MAGISTRATES COURT, ERNAKULAM EXHIBIT P6 TRUE COPY OF THE PAYMENT SCHEDULE BY THE PETITIONERS TO THE RESPONDENTS EXHIBIT P7 TRUE COPY OF THE E MAIL COMMUNICATION DATED 8.12.2021 ISSUED BY THE RESPONDENT TO THE PETITIONERS EXHIBIT P8 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONERS DATED 16.2.2022

RESPONDENT'S/S' EXHIBITS EXHIBIT R1(a) TRUE COPY OF CMP NO 679/2022 IN MC NO 295/2020 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM EXHIBIT R1(b) TRUE COPY OF THE ORDER DATED 5.3.2022 IN CMP NO.679/2022 IN MC NO 295/2020