Sanil Kumar vs State Bank Of India Sbi
2023 Latest Caselaw 1794 Ker

W.P.C.No.1991/23                   1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
  WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                       WP(C) NO. 1991 OF 2023
PETITIONER/S:

     1      SANIL KUMAR,
            AGED 40 YEARS,
            S/O.KRISHNA PILLAI,
            VADAKKEMADOM HOUSE,THOTTAPUZHASSERY, MARAMON P.O.,
            KOZHENCHERRY, PATHANAMTHITTA DISTRICT, PIN - 689
            641.

     2      DIVYALAKSHMI,
            AGED 38 YEARS,
            W/O.SANIL KUMAR,
            VADAKKEMADOM HOUSE,THOTTAPUZHASSERY, MARAMON P.O.,
            KOZHENCHERRY, PATHANAMTHITTA DISTRICT, PIN - 689
            641.

             BY ADV.JOHN MATHEW (THEREZHATH)



RESPONDENTS:

     1       STATE BANK OF INDIA SBI,
             STRESSED ASSETS RECOVERY BRANCH,
             LMS COMPOUND, OPPOSITE TO MUSEUM WEST GATE,
             VIKASBHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033
             REPRESENTED BY ITS MANAGER, PIN - 695 033.

     2       THE AUTHORIZED OFFICER,
             STATE BANK OF INDIA,
             STRESSED ASSETS RECOVERY BRANCH,
 W.P.C.No.1991/23                      2



             LMS COMPOUND, OPPOSITE TO MUSEUM WEST GATE,
             VIKASBHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695 033.

             BY ADV.JAWAHAR JOSE


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.02.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.C.No.1991/23                       3



                           JUDGMENT

The petitioners have approached this Court challenging the

recovery proceedings initiated by the respondents herein.

Petitioners are the borrowers, and they had jointly availed a

housing loan of Rs.20,00,000/- with a home loan insurance cover of

Rs.1,63,640/- and a term loan of Rs.2,00,000/- from the respondents

herein. When the aforesaid accounts became Non-Performing

Assets, proceedings were initiated by the respondent to recover the

amounts by invoking the provisions under SARFAESI Act. Now, in

pursuance to the aforesaid proceedings, the respondent bank is in

the process of taking possession of the secured asset. This writ

petition is filed challenging the said proceedings.

2. Heard Sri. John Mathew Therezhath learned counsel for

the petitioners and Sri.Jawahar Jose, the learned counsel for

respondents 1 and 2.

3. The learned counsel for the respondents points out that

this writ petition cannot be entertained, mainly in view of the fact

that the petitioner earlier approached this Court by filing W.P.

(C).No.14752 of 2017, which was disposed of as per judgment

dated 05.05.2017, granting instalment facility to them. However,

they did not pay any amount, and further proceedings were

initiated in such circumstances. It is further pointed out by the

learned counsel for the respondents that, in this writ petition, there

is no reference to the earlier writ petition and the judgment passed

by this Court. Therefore, there is suppression of material facts. As

regards the merits of the case, the learned counsel for the

petitioner contends that they have served no notice under Section

13(4) of SARFAESI Act and no publication of the same has also

been made by the secured creditor.

4. However, the learned counsel for the respondents points

out that notice has been served on the petitioners on 25.04.2017,

and publication thereof was made on 30.04.2017, which is within

the statutory period, in Indian Express Daily and Mathrubumi Daily.

Thus, considering all the relevant aspects, I do not find any ground

to grant the relief sought in this writ petition.

5. At this juncture, the learned counsel for the petitioners

submits that he may be granted an opportunity to approach the

bank seeking some more time. Considering the limited prayer, I

deem it appropriate to provide an opportunity. The learned counsel

for the respondents points out that the proper person to approach

is the Assistant General Manager, Stressed Assets Recovery

Branch, Thiruvananthapuram and representation can be submitted

before him.

In such circumstances, this writ petition is disposed of

permitting the petitioners to submit representation, if any, to

Assistant General Manager, Stressed Assets Recovery Branch,

Thiruvananthapuram, within a period of one week from today and

upon receipt of the same, it shall be taken into consideration within

a period of two weeks from the date of receipt of the same. The

recovery proceedings against the petitioners shall be kept in

abeyance for a period of two weeks from today.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/1.2.23

APPENDIX OF WP(C) 1991/2023

PETITIONER EXHIBITS

ExhibitP1 THE TRUE COPY OF THE DEMAND NOTICE DATED 21/10/2019 ISSUED BY THE 1ST RESPONDENT BANK TO THE PETITIONERS UNDER SECTION 13(2) OF THE SARFAESI ACT, 2002

Exhibit P2 THE TRUE COPY OF THE O.A NO 367 / 2020 DATED 27/05/2020 PENDING ON THE FILE OF DEBT RECOVERY TRIBUNAL - II ERNAKULAM FILED BY THE 1ST RESPONDENT BANK AGAINST THE PETITIONERS WITHOUT EXHIBITS

ExhibitP3 THE TRUE COPY OF THE NOTICE DATED 12/12/2022 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONERS