Kuriachan M.C vs Canara Bank
2023 Latest Caselaw 8414 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
        MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                        WP(C) NO. 17647 OF 2023
PETITIONER/S:

            KURIACHAN M.C.,
            AGED 59 YEARS
            17/78(2) MOUNT VIEW, CHITTUR ROAD, MANAPPULLIKKAVU,
            KUNNATHURMEDU P.O., PALAKKAD, PIN - 678013

            BY ADV B.SABITHA (DESOM)



RESPONDENT/S:

    1       CANARA BANK,
            RERESENTED BY ITS AUTHORIZED OFFICER, CANARA BANK, BIG
            BAZAR BRANCH, PALAKKAD, PIN - 678014

    2       THE MANAGER,
            CANARA BANK, BIG BAZAR BRANCH, PALAKKAD, PIN - 678014


OTHER PRESENT:

            SRI M GOPIKRISHNAN NAMBIAR




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17647 OF 2023
                               2

                           JUDGMENT

The writ petition is filed to direct the respondents to

withhold the operation of the recovery proceedings

initiated against the petitioner under the Securitization

and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 (in short, 'Act') till the

disposal of RP No.62/2022 on the file of the Kerala State

Consumer District Disputes Redressal Commission,

Palakkad.

2. The petitioner's case is that he is an Advocate by

profession. He had availed a housing loan from the 2 nd

respondent bank by creating an equitable mortgage by

deposit of title deeds. The bank has initiated proceedings

under the Act and is threatening to take physical

possession of the secured asset. Hence, the petitioner

filed CC No.70/2021 against the respondent before the

Consumer Disputes Redressal Commission, Palakkad. The

respondent was set ex-parte and Ext.P8 order was

passed. Although the respondent filed an application to WP(C) NO. 17647 OF 2023

set aside the ex-parte order, the same was rejected by the

Commission by Ext.P9 order. Aggrieved by Ext.P9 order,

the respondent has filed RP No.62/2022 before the

Consumer Redressal Commission, Palakkad and the same

is pending consideration. During the pendency of the

above revision petition, the respondents have initiated

proceedings under the Act. The entire proceedings

initiated by the respondents are vitiated and bad in the

eyes of law. Hence, the entire proceedings may be

directed to be withheld till a decision is taken on RP

No.62/2022. Hence, the writ petition.

3. Heard; Smt.B.Sabitha, the learned Counsel

appearing for the petitioner and Sri.Gopikrishnan

Nambiar, the learned Counsel appearing for the

respondents.

4. The point is whether further proceedings in RP

No.62/2022 has to be stayed.

5. The petitioner asserts that, challenging the

recovery proceedings, the petitioner has preferred CC

No.70/2021 before the Consumer Disputes Redressal WP(C) NO. 17647 OF 2023

Commission, Palakkad. Indisputably, the Commission has

not passed any order interdicting the respondents from

proceeding with the recovery proceedings.

6. Even though the respondent was set ex-parte

before the Commission, the respondent later filed an

application to set aside the ex-parte order, which was

rejected by the Commission. Then, the respondent filed

RP No.62/2022 before the Kerala State Consumer

Disputes Redressal Commission, Thiruvananthapuram,

and by order dated 19.09.2022, further proceedings

before the Commission have been stayed.

7. The petitioner prays that the SARFAESI

proceedings may be deferred, till a decision is taken on

RP No.62/2022. The said request is untenable in view of

Section 34 of the Act, which prohibits the Courts/Forums

from interdicting proceedings which are to be

adjudicated by the Debt Recovery Tribunal/Debt

Recovery Appellate Tribunal.

8. Furthermore, it is up to the petitioner to have

approached the Commission and sought for stay of the WP(C) NO. 17647 OF 2023

the recovery proceedings, which has not been done.

Thus, I am of the definite view that the prayer in the writ

petition, to stay the recovery proceedings till a decision is

taken on R.P.No.62/2022 is untenable. Nonetheless, I

leave it to the petitioner to work out his remedies, in

accordance with law, if any available.

9. The Hon'ble Supreme Court in South Indian

Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw

(SC) 320), after adverting to a myriad of earlier judicial

pronouncements, has categorically declared that High

Courts shall not, unless in extra ordinary circumstances,

interfere with proceedings initiated under the Act, in writ

proceedings under Article 226 of the Constitution of

India.

10. On an analysis of the pleadings and materials on

record and appreciating the rival submissions made

across the Bar, and that the respondents are not willing

to extend any installment facility to the petitioner, I do

not find any extraordinary circumstances to entertain the WP(C) NO. 17647 OF 2023

writ petition by exercising the discretionary powers of

this Court under Article 226 of the Constitution of India.

Resultantly, the writ petition is dismissed, without

prejudice to the right of the petitioner to work out his

remedies in accordance with law.

Sd/-

C.S.DIAS JUDGE rkc/07.08.23 WP(C) NO. 17647 OF 2023

APPENDIX OF WP(C) 17647/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 09.08.2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit P1A TRUE COPY OF THE COMPLAINT DATED 09.08.2017 SUBMITTED BY THE PETITIONER TO THE REGIONAL MANAGER

Exhibit P2 TRUE COPY OF THE COMPLAINT DATED 05.12.2017 BY THE PETITIONER TO THE GENERAL MANAGER OF THE SAID BANK AT THIRUVANANTHAPURAM

Exhibit P3 TRUE COPY OF THE REPLY BY THE DIVISIONAL MANAGER DATED 27.12.2017 TO THE PETITIONER

Exhibit P3A TRUE COPY OF THE BANK STATEMENT ISSUED BY THE 2ND RESPONDENT PERTAINING TO THE PETITIONER FROM 27.01.2004 TO 15.05.2023

Exhibit P4 TRUE COPY OF THE COMPLAINT BEFORE THE CHIEF MANAGER DATED 19.02.2018

Exhibit P5 TRUE COPY OF THE LETTER BY THE DIVISIONAL MANAGER DATED 26.02.2018

Exhibit P6 TRUE COPY OF THE REPLY LETTER ISSUED BY THE CHIEF MANAGER OF THE 2ND RESPONDENT BANK DATED 05.03.2018

Exhibit P7 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD IN C.C NO. 70/21 DATED 29.03.2021

Exhibit P8 THE TRUE COPY OF THE EX-PARTE ORDER PASSED BY THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD DATED 09.12.2021 WP(C) NO. 17647 OF 2023

Exhibit P9 THE TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE ORDER FILED BY THE RESPONDENTS DATED 18.05.2022

Exhibit 10 12. THE TRUE COPY OF THE VERSION FILED BY THE 2ND RESPONDENT BANK BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD IN CC NO. 70 OF 2021 DATED 28.05.2022

Exhibit10A THE TRUE COPY OF THE REVISION PETITION FILED BY THE RESPONDENTS BANK BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION AS RP NO. 62/2022

Exhibit 11 TRUE COPY OF 13(2) NOTICE DATED 10.1.2023 ISSUED BY THE RESPONDENTS TO THE PETITIONER