Mariamma Varghese vs Union Of India
2023 Latest Caselaw 1158 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                         WP(C) NO. 1597 OF 2023
PETITIONER:

          MARIAMMA VARGHESE
          W/O.K.T.VARGHESE, AGED 80 YEARS,
          KAVUMKOTTU VEEDU, ESM COLONY, KULATHUPUZHA P.O,
          KOLLAM, PIN - 681 310.

          BY ADVS.
                     P.T.JOSE
                     S.ASHITHA
                     ABEY AUGUSTINE
                     ALTHAF P.A.
                     JAYASANKAR S.S.



RESPONDENTS:

    1     UNION OF INDIA
          REPRESENTED BY THE SECRETARY
          MINISTRY OF FINANCE, NEW DELHI, PIN - 110 001.

    2     THE REGISTRAR ,DEBT RECOVERY TRIBUNAL II ERNAKULAM
          1ST FLOOR, KSHB BUILDING,
          PANAMPILLY NAGAR, ERNAKULAM, PIN - 682 036.

    3     STATE BANK OF INDIA
          REP.BY MANAGER, KOLATHUPUZHA BRANCH
          KOLATHUPUZHA, KOLLAM DISTRICT, PIN - 691 310.

    4     THE AUTHORIZED OFFICER/CHIEF MANAGER, STATE BANK OF
          INDIA, STRESSED ASSETS RECOVERY BRANCH (SARB)
          LMS COMPOUND, OPP.MUSEUM WEST GATE
          VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM, PIN - 695 033.


OTHER PRESENT:

          ADV. TOM K THOMAS (SC)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.1597/2023                  2




                            JUDGMENT

Petitioner has approached this Court challenging

Ext.P12 order of the Tribunal on I.A.Nos.2417/2022 and

3260/2022 in S.A.No.475/2022.

2. It is the case of the petitioner that the Tribunal has

not properly appreciated the contentions taken by the

petitioner before the Tribunal and has mechanically rejected

the stay application by directing a payment of a sum of Rs.53

Lakh, as a condition for stay of further proceedings. It is

submitted that the amount claimed by the Bank has not been

properly adjudicated and the amount is to be adjudicated in

the original application filed by the Bank under the provisions

of the Recovery of Debts and Bankruptcy Act, 1993. It is

submitted that the Tribunal has found that there is no prima

facie illegality in the proceedings initiated under Section 14

of the SARFAESI Act, in a mechanical manner. It is submitted

that out of the two items of property, which have been

mortgaged, one item of property had already been taken

possession of and the value that may be released by the sale

of that property will be sufficient to clear the entire liability

with the Bank. It is submitted that Interlocutory Applications

filed for conducting valuation or for producing the valuation

obtained by the Bank in respect of the property which has

already been taken possession of has not been considered by

the Tribunal. It is submitted that going by the Judgment of

the Supreme Court in Mardia Chemicals v. Union of India;

2004(4) SCC 311, the proceedings under Section 17 of the

SARFAESI Act are in the nature of original proceedings. It is

also submitted that the Supreme Court has set aside the

provisions of the SARFAESI Act to the extent it required a

pre-deposit to be made as a condition for maintaining an

application under Section 17 of the SARFAESI Act.

Therefore, it is submitted, the Tribunal could not have

imposed any condition of deposit for the grant of stay.

3. Adv. Tom K. Thomas, the learned counsel appearing

for the respondent Bank would submit that the contentions

taken by the petitioner are without any merit whatsoever. It

is submitted that the Tribunal has considered the contentions

taken in the Interlocutory Applications and has found that

there was no prima facie illegality in the proceedings adopted

by the Bank under Section 14 of the SARFAESI Act. It is

submitted that the Supreme Court in Mardia Chemicals

(supra), has concluded that it will be open to the Tribunal to

grant stay/interim order subject to any condition and

therefore it is not open to the petitioner to contend that the

Tribunal should not have imposed any condition. It is

submitted that the Supreme Court only frowned upon the

requirement of the pre-deposit as a condition for maintaining

an application under Section 17 of the SARFAESI Act and that

by itself does not mean that the Tribunal could not impose

any condition for the grant of stay. It is submitted that the

contention that the amount has not been adjudicated, cannot

be accepted, as the principal amount itself is Rs.1.87 Crores

and the petitioner has only been required to make payment of

a sum of Rs.53 Lakh as a condition for stay. It is submitted

that even assuming without conceding that there is any merit

in the dispute regarding the amounts now claimed by the

Bank, the petitioner cannot have a dispute regarding the

principal amount. It is submitted that the condition imposed

by the Tribunal is less than half of the principal amount (as

claimed in the original application filed in the year 2018) as

due from the petitioner. It is submitted that the Tribunal has

neither failed to exercise any jurisdiction vested in it nor has

it exceeded any jurisdiction vested in it. It is submitted that

the petitioner has an effective alternative remedy of appeal

under the SARFAESI Act and therefore the writ petition is

clearly not maintainable.

4. Having heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent Bank, I am of the opinion that there is

considerable merit in the contention taken by the learned

counsel appearing for the respondent Bank, that Ext.P12

order is not liable to be interfered with the exercise of

jurisdiction under Article 226 of the Constitution of India. No

grounds are made out even to exercise the jurisdiction of this

Court under Article 227 of the Constitution of India, as I

cannot find that the Tribunal has failed to exercise any

jurisdiction vested in it or has exceeded the limits of any

jurisdiction vested in it. The contention taken by the learned

counsel appearing for the petitioner that the amount claimed

is disputed also does not compel me to take a view in favour

of the petitioner on account of the fact that the condition

imposed by the Tribunal appears to be less than half of the

principal amount claimed by the Bank in the original

application filed before the Tribunal in 2018. The judgment of

the Supreme Court in Mardia Chemicals (supra), makes it

clear that it will be open to the Tribunal, while considering an

application under Section 17 of the SARFAESI Act, to impose

a condition of deposit. Therefore the contention of the

petitioner on the basis of the findings in paragraphs 59 and

64 of the judgment in Mardia Chemicals (supra), does not

appeal to this Court. The writ petition fails and it is

accordingly dismissed.

5. Faced with this situation the learned counsel

appearing for the petitioner submits that the petitioner may

be given two weeks time to approach the Debts Recovery

Appellate Tribunal by filing an appeal and also having regard

to the facts and circumstances of the case, the proceedings

for taking physical possession of the secured asset which is

scheduled to be held on tomorrow (19-01-2023) may be kept

in abeyance for a period of two weeks to enable the petitioner

to approach the Debts Recovery Appellate Tribunal,

challenging Ext.P3 order.

6. Having regard to the finding in this judgment that

the remedy of the petitioner lies in approaching the Debts

Recovery Appellate Tribunal by filing a Appeal under Section

18 of the SARFAESI Act, I am of the view that the request

made by the learned counsel appearing for the petitioner is

reasonable.

Accordingly, it is directed that the steps for taking

physical possession of the secured asset shall stand adjourned

by a period of two weeks from today (till 02-02-2023) to

enable the petitioner to avail any statutory appellate remedy

that may be available to her.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 1597/2023

PETITIONER EXHIBITS

Exhibit 1 TRUE COPY OF SA 475/2022 BEFORE DRT II ERNAKULAM

Exhibit 2 TRUE COPY OF STAY PETITION IA 2417/2022 IN SA 475/2022

Exhibit 3 TRUE COPY OF NOTICE DATED 22/9/2022 ISSSUED BY ADV COMMISSIONER

Exhibit 4 TRUE COPY OF ADVANCE PETITION I.A.2486/2022

Exhibit 5 TRUE COPY OF ORDER IN IA 2486/2022 DATED 27/9/2022

Exhibit 6 TRUE COPY OF THE REGISTERED NOTICE DATED 24/9/2022

Exhibit 7 TRUE COPY OF THE NOTICE DATED 26/10/2022 ISSUED BY ADV COMMISSIONER

Exhibit 8 TRUE COPY OF JUDGMENT IN OP(DRT) 389/2022 DATED 27/10/2022

Exhibit 9 TRUE COPY OF I.A.3260/2022 DATED 22/11/2022

Exhibit 10 TRUE COPY OF I.A.3261/2022 DATED 22/11/2022

Exhibit 11 TRUE COPY OF AMENDMENT APPLICATION I.A.3259/2022 DATED 22/11/2022

Exhibit 12 TRUE COPY OF ORDER DATED 24/11/2022 BY DRT II ERNAKULAM

Exhibit 13 TRUE COPY OF THE NOTICE DATED 12/1/2023 ISSUED BY ADV COMMISSIONER