Ajin Joy Abraham vs The South Indian Bank Ltd
2023 Latest Caselaw 10991 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                    WP(C) NO. 35115 OF 2023
PETITIONER:

         AJIN JOY ABRAHAM
         AGED 39 YEARS
         S/O JOYKUTTY ABRAHAM
         THONNIPPARACKAL (H), ANICKADU P.O,
         PATHANAMTHITTA, PIN - 689585

         BY ADV AJITH M. JIJI


RESPONDENT:

         THE SOUTH INDIAN BANK LTD
         REPRESENTED BY THE AUTHORIZED OFFICER,
         REGIONAL OFFICE, 2 ND FLOOR, TMJ COMPLES,
         RAMANCHIRA, THIRUVALLA, PIN - 689107

         SRI.JOMY GEORGE

     THIS WRIT PETITION       (CIVIL) HAVING COME UP    FOR
ADMISSION ON 26.10.2023,      THE COURT ON THE SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) No.35115 of 2023
                                           2




                                 JUDGMENT

Dated this the 26th day of October, 2023

The petitioner availed an Overdraft facility of

₹28,00,000/- from the respondent-Bank in the year 2017.

When the petitioner defaulted in making repayments, the

respondent-Bank has issued possession notice to the

petitioner stating that the petitioner is liable to pay an amount

of ₹33,21,227/-.

2. The petitioner states that the default was not made

deliberately and it happened under unforeseen

circumstances. Therefore, unless the respondent-Bank

regularises the loan account by permitting the petitioner to pay

the overdue amount in installments, the petitioner will be put

to untold hardship and loss.

3. Standing Counsel entered appearance on behalf of

the respondent and submitted that on default on the part of WP(C) No.35115 of 2023

the petitioner, the respondent has invoked the provisions of

the Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act. The respondent-Bank is

a Private Bank. Therefore, a writ petition under Article 226 of

the Constitution of India is not maintainable, contended the

Standing Counsel.

4. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondent.

5. The Hon'ble Apex Court considered a similar issue

in a civil appeal involving the respondent-Bank. The Hon'ble

Apex Court deprecated the High Court entertaining writ

petitions in SARFAESI matters, especially against private

banks. The Apex Court held that when a statute prescribes a

particular mode, an attempt to circumvent shall not be

encouraged by a writ court. The judgment is in M/s.South

Indian Bank Limited and others v. Naveen Mathew Philip WP(C) No.35115 of 2023

and another [Civil Appeal arising out of SLP (Civil)

Nos.22021-22022 of 2022].

In view of the judgment of the Hon'ble Apex Court, I find

that this writ petition is not maintainable. The writ petition is

therefore dismissed.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.35115 of 2023

APPENDIX OF WP(C) 35115/2023

PETITIONER'S EXHIBITS

Exhibit -P1 TRUE COPY OF THE SAID POSSESSION NOTICE DATED 11.09.2023 ISSUED ON THE PETITIONER BY THE RESPONDENT BANK.