Kerala High Court
Pdmc Industries, Through Its Managing ... vs South Indian Bank Ltd on 21 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 29909 OF 2023
PETITIONER:
PDMC INDUSTRIES,
THROUGH ITS MANAGING PARTNER
BOBBY ISAAC MATHEW, AGED 52 YEARS
S/O P.D. MATHEW, TTCMPS BUILDING, MUTTOM,
THODUPUZHA, IDUKKI, PIN - 685567,
RESIDING AT THAZHATHU PULINGAPPALLIL,
ATHIRAMPUZHA ROAD, ETTUMANOOR PO,
KOTTAYAM, PIN - 686631.
BY ADVS.
MEENA.A.
VINOD RAVINDRANATH
K.C.KIRAN
M.R.MINI
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
NIVEDHITHA PREM.V
RESPONDENTS:
1 SOUTH INDIAN BANK LTD.,
REGIONAL OFFICE, KOTTAYAM, 1ST FLOOR,
REGENCY SQUARE, K.K. ROAD, COLLECTRATE PO,
KOTTAYAM, PIN - 686002
REPRESENTED BY ITS DEPUTY GENERAL MANAGER.
2 RESERVE BANK OF INDIA,
BRANCH OFFICE, P.B. NO.6507, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM,
KERALA, PIN - 695033
REPERSENTED BY GENERAL MANAGER.
W.P.(C) No.29909/2023 & connected cases
:2:
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
ANANTHU V.LAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.05.2024, ALONG WITH WP(C).32498/2023,
32643/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.29909/2023 & connected cases
:3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 32498 OF 2023
PETITIONER:
BOBBY ISAAC MATHEW,
AGED 52 YEARS, S/O P.D. MATHEW,
TTCMPS BUILDING, MUTTOM, THODUPUZHA,
IDUKKI, PIN - 685567,
RESIDING AT THAZHATHU PULINGAPPALLIL,
ATHIRAMPUZHA ROAD, ETTUMANOOR PO,
KOTTAYAM., PIN - 686631.
BY ADV M.R.MINI
RESPONDENTS:
1 SOUTH INDIAN BANK LTD.,
REGIONAL OFFICE, KOTTAYAM, 1ST FLOOR,
REGENCY SQUARE, K.K. ROAD, COLLECTRATE PO,
KOTTAYAM, PIN - 686002
REPRESENTED BY ITS DEPUTY GENERAL MANAGER.
2 RESERVE BANK OF INDIA,
BRANCH OFFICE, P.B NO 6507, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM,
KERALA PIN - 695033
REPRESENTED BY GENERAL MANAGER.
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
ANANTHU V.LAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.05.2024, ALONG WITH WP(C).29909/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.29909/2023 & connected cases
:4:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 32643 OF 2023
PETITIONER:
M/S. PDMC CO RUBBER
THROUGH ITS PROPRIETOR BOBBY ISAAC MATHEW,
AGED 52 YEARS, S/O P.D. MATHEW,
TTCMPS BUILDING, MUTTOM, THODUPUZHA,
IDUKKI, PIN - 685567,
RESIDING AT THAZHATHUPULINGAPPALLIL,
ATHIRAMPUZHA ROAD, ETTUMANOOR PO,
KOTTAYAM, PIN - 686631.
BY ADVS.
M.R.MINI
VINOD RAVINDRANATH
MEENA.A.
K.C.KIRAN
M.DEVESH
ANISH ANTONY ANATHAZHATH
THAREEQ ANVER K.
NIVEDHITHA PREM.V
RESPONDENTS:
1 SOUTH INDIAN BANK LTD
REGIONAL OFFICE, KOTTAYAM, 1ST FLOOR,
REGENCY SQUARE, K.K. ROAD, COLLECTRATE PO,
KOTTAYAM, PIN - 686002
REPRESENTED BY ITS DEPUTY GENERAL MANAGER.
2 RESERVE BANK OF INDIA
BRANCH OFFICE, P.B NO 6507, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM,
KERALA PIN - 695033
REPRESENTED BY GENERAL MANAGER.
W.P.(C) No.29909/2023 & connected cases
:5:
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
ANANTHU V.LAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.05.2024, ALONG WITH WP(C).29909/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.29909/2023 & connected cases
:6:
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
W.P.(C) Nos.29909, 32498 and 32643 of 2023
`````````````````````````````````````````````````````````````
Dated this the 21st day of May, 2024
JUDGMENT
~~~~~~~~~
W.P.(C) No.29909/2023 is filed by a Partnership
Firm which is operating a crusher unit. The Firm availed a
Cash Credit Overdraft Loan from the South Indian Bank to
the tune of ₹2 Crores. A further financial assistance under
ECLGS was granted to the Firm of an amount of ₹49 lakhs.
The Mining and Geology Department did not renew their
licence which resulted in suspension of operations of the
industry. The loan account was declared as NPA. The Bank
recalled the loans and initiated proceedings under Section 13
of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002.
W.P.(C) No.29909/2023 & connected cases
2. The petitioner would contend that the unit was
stopped temporarily due to unavoidable circumstances. The
functioning of the unit has resumed. The petitioner will be
able to pay defaulted instalments and interest if a short time
is given. Categorising the petitioner's loan account as NPA
is improper and illegal. The petitioner challenges Ext.P6
notice issued under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002.
3. The Bank issued yet another notice dated
31.07.2023. The petitioner therefore filed W.P.(C)
No.32643/2023 challenging Ext.P3 notice dated 31.07.2023
issued under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. The Bank has demanded
₹5,01,41,063.82. The petitioner would urge that the
petitioner is ready to pay the defaulted instalments and
interest and representation submitted by the petitioner is
liable to be considered by the Bank.
W.P.(C) No.29909/2023 & connected cases
4. W.P.(C) No.32498/2023 has been filed by the
Managing Partner of the Firm seeking to direct the Bank not
to proceed with the steps under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 already initiated against the
petitioner and to grant an opportunity to the petitioner for
paying the defaulted instalments and interest and to revive
the KCC account. The loan availed by the petitioner in this
writ petition is to the tune of ₹2.75 Crores. The loan was
availed for cultivating cardamom. The temporary suspension
of operations was as a result of the non-renewal of the
licence by the Mining and Geology Department. According
to the petitioner, categorising the loan account as NPA and
blocking KCC operating accounts are illegal and
unjustifiable. The petitioner seeks to direct the 1 st
respondent-Bank not to proceed with the steps under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
W.P.(C) No.29909/2023 & connected cases
5. The respondents resisted the writ petition filing
counter affidavit. The respondents pointed out that the Bank
is a private company and is not amenable to the writ
jurisdiction under Article 226 of the Constitution of India. The
accounts of the petitioners were classified as NPA as there
was no business activity. The borrower did not submit the
stock statement and consequently, the loan accounts were
classified as NPA. The respondents are proceeding strictly
in accordance with the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. The writ petitions are therefore
liable to be dismissed.
6. I have heard the learned counsel for the
petitioners and the learned Standing Counsel representing
the Bank.
7. The 1st respondent in all these writ petitions is a
private Bank. The Hon'ble Apex Court has held in the
judgment in Federal Bank Limited v. Sagar Thomas
[(2003) 10 SCC 733] that a writ petition is not maintainable
W.P.(C) No.29909/2023 & connected cases
against a private company. Furthermore, the petitioners are
challenging proceedings initiated by the 1 st respondent-Bank
invoking the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002.
8. It is settled law that no writ would lie against the
proceedings initiated by a financial institution under the
provisions of the SARFAESI Act. In United Bank of India v.
Satyawati Tondon and others [(2010) 8 SCC 110], the
Hon'ble Apex Court declared that no writ petition shall be
entertained against the proceedings initiated under the
SARFAESI Act at the instance of a defaulter since the statute
provides for an efficacious alternate remedy.
9. In the judgment in Authorised Officer, State
Bank of Travancore v. Mathew K.C. [2018 (1) KLT 784],
the Hon'ble Apex Court reiterated that no writ petition would
lie against the proceedings under the SARFAESI Act in view
of the statutory remedy available under the said Act.
W.P.(C) No.29909/2023 & connected cases
10. Following the judgment in Satyawati Tondon
(supra), a Division Bench of this Court in the judgment in
Anilkumar v. State Bank of India [2020 (2) KLT 756]
declined to exercise jurisdiction under Article 226 of the
Constitution of India against the proceedings initiated under
the Securitisation Act.
11. In South Indian Bank Limited v. Naveen
Mathew Philip [2023 (4) KLT 29], the Apex Court held that
when the legislature has provided a specific mechanism for
appropriate redressal, the powers conferred under Article
226 of the Constitution of India shall be exercised only in
extraordinary circumstances.
12. In Jayakrishnan A. v. Union Bank of India and
others (W.P.(C) No.30803/2023), this Court held that writ
petition challenging any proceedings under the Securitisation
Act is not maintainable since the aggrieved person has an
effective and efficacious remedy before the Tribunal
constituted under the Act which is competent to adjudicate
the issues of fact and law, including statutory violations.
W.P.(C) No.29909/2023 & connected cases
In the light of the categorical pronouncements of
law made by the Apex Court and by this Court, the above writ
petition is not maintainable and it is dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/13.05.2024
W.P.(C) No.29909/2023 & connected cases
APPENDIX OF WP(C) 29909/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE
1ST RESPONDENT ON 12.04.2023
Exhibit P2 TRUE COPY OF THE NOTICE DATED
19.04.2023 ISSUED BY THE 1ST
RESPONDENT BANK TO THE PETITIONER
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
08.05.2023 BEFORE THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE
1ST RESPONDENT DAETD 02.06.2023
Exhibit P5 TRUE COPY OF THE REPRESENTATION BEFORE
THE 1ST RESPONDENT DATED NIL
Exhibit P6 TRUE COPY OF THE REPLY FROM THE 1ST
RESPONDENT BANK DATED 07.07.2023
Exhibit P7 TRUE COPY OF THE MINING LICENSE ISSUED
ON 06.07.2023 TO THE PETITIONER
Exhibit P8 TRUE COPY OF THE ORDER DATED
01.08.2023 IN W.P. (C) NO.24761/2023
Exhibit P9 TRUE COPY OF THE REGISTRATION
CERTIFICATE DATED 27.11.2020 ISSUED BY
THE GOVERNMENT OF INDIA
Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED
02.09.2023
W.P.(C) No.29909/2023 & connected cases
APPENDIX OF WP(C) 32498/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF NOTICE DATED 02.05.2023
Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED
10.05.2023 FILED BY THE PETTIOER
BEFORE THE 1ST RESPODENT
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
31.07.2023 FILED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
12.09.2023 FILED BY THE PETITIONER
BEFORE THE 1ST RESPODENT
W.P.(C) No.29909/2023 & connected cases
APPENDIX OF WP(C) 32643/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DATED
02.05.2023 SENT BY THE 1ST RESPONDENT
BANK TO THE PETITIONER
Exhibit P2 TRUE COPY OF THE REPRESENTATION FILED
BY THE PETITIONER DATED 10.05.2023
BEFORE THE 1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE NOTICE DATED
31.07.2023 ISSUED BY THE 1ST
RESPONDENT
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
12.09.2023 BEFORE THE 1ST RESPONDENT
