Sunil Mathew vs The South Indian Bank Limited
2023 Latest Caselaw 113 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                        WP(C) NO. 41116 OF 2022
PETITIONER/S:

          SUNIL MATHEW
          AGED 48 YEARS
          S/O.K.J.MATHAI,
          KUNNAPPALLIL HOUSE,
          VIZHIKKATHODU P.O.,
          KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK,
          KOTTAYAM DISTRICT, PHONE -9526384384., PIN - 686518
          BY ADVS.
          C.HARINDRAMOHAN NAIR
          SEBASTIAN JOSEPH (KURISUMMOOTTIL)


RESPONDENT/S:

          THE SOUTH INDIAN BANK LIMITED
          REGIONAL OFFICE AT REGENCY SQUARE,
          K.K.ROAD, COLLECTORATE P.O., KOTTAYAM
          REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED
          OFFICER., PIN - 686002
          BY ADVS.
          SUNIL SANKAR.P.
          MATHEW JACOB (KUNNATHU)
          K.MADHUSOODANAN(K/692/1979)
          SYRIAC JOSEPH(K/304/1980)




          ADV. K. MADHUSOODANAN (SC)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 41116 OF 2022               2




                                JUDGMENT

Petitioner approached this Court, being aggrieved by the

fact that the Chief Judicial Magistrate Court, Kottayam had

proceeded to direct the advocate commissioner appointed under

Section 14 of the SARFAESI Act to identify the property, which

has been mortgaged to the respondent bank, with the assistance

of the Village officer/Taluk surveyor.

2. It is the case of the petitioner that civil suits are

pending in the matter and the Taluk Surveyor/village officer will

not be in a position to identify the property which has been

mortgaged to the respondent bank. It is submitted that the

petitioner has already approached the Debts Recovery Tribunal

by filing S.A. No.114 of 2022 and the same is pending

consideration of the Tribunal.

3. Learned counsel appearing for the respondent bank

would submit that, on an earlier occasion, the petitioner had

approached this Court by filing W.P.(C.) No.23082 of 2022,

which was disposed of on 15.07.2022, finding that it will be open

to the petitioner to approach the Debts Recovery Tribunal.

According to the learned counsel appearing for the respondent

bank, the issue now raised by the petitioner can only be

adjudicated in proceedings before the Tribunal and not by way

of a writ petition under Article 226 of the Constitution of India.

4. Having heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the respondent

bank, I am clearly of the opinion that there is considerable merit

in the contention taken by the learned counsel appearing for the

respondent bank. It is settled from the decision of the Hon'ble

Supreme Court in United Bank of India v. Satyawati Tondon

and Others [2010 KHC 4518] that when the measures under

the SARFAESI Act are challenged on its merits, this Court

cannot exercise jurisdiction under Article 226 of the Constitution

of India and decide the disputes raised as the petitioner has an

effective alternative remedy before the Tribunal. The facts of the

present case show that the petitioner is already before the

Tribunal, challenging the proceedings initiated by the bank. In

such circumstances and considering the nature of the disputes

now raised, I am of the opinion that the petitioner cannot be

given any relief in exercise of jurisdiction under Article 226 of

the Constitution of India.

The writ petition fails and it is accordingly, dismissed. It is

made clear that it will be open to the petitioner to seek urgent

orders from the Tribunal in the pending Securitisation

Application. All contentions raised are left open.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 41116/2022

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE PLAINT IN O.S.NO.80/2022 OF MUNSIFF COURT, KANJIRAPPALLY Exhibit-P2 TRUE COPY OF THE INTERIM ORDER DATED 11/3/2022 PASSED IN I.A.NO.2/2022 IN O.S.NO.80/2022 OF MUNSIFFS COURT, KANJIRAPPALLY.

Exhibit-P3 TRUE COPY OF PLAINT IN O.S.NO.52/2022 OF MUNSIFF COURT, KANJIRAPPALLY DATED 18/2/2022 .

Exhibit-P4 TRUE COPY OF THE INTERIM ORDER DATED 19/2/2022 PASSED IN I.A.NO.1/2022 IN O.S.NO.52/2022 OF MUNSIFF COURT, KANJIRAPPALLY Exhibit-P5 TRUE COPY OF THE DECREE DATED 29/11/2019 IN O.S.NO.227/1996 OF MUNSIFF'S COURT, KANJIRAPPALLY.

Exhibit-P6 TRUE COPY OF THE NOTICE DATED 11.06.2020 IN A.S.NO.19/2020 OF SUB COURT, PALA Exhibit-P7 TRUE COPY OF THE INTERIM REPORT OF ADVOCATE COMMISSIONER, ADVOCATE SUNNY JAMES, DATED 30- 9-2022 IN M.C.NO.205/2022 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM Exhibit-P8 TRUE COPY OF THE ORDER DATED 30.9.2022 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM IN CRL.M.P.NO.2040/2022 IN M.C.NO.205/22.