Kerala High Court
Muaad Mohammed Ashraf vs M/S. South Indian Bank Ltd on 23 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WP(C) NO. 3576 OF 2024
PETITIONER:
MUAAD MOHAMMED ASHRAF, AGED 24 YEARS
S/O. LATE MOHAMMED ASHRAF P.K., FATHIMAS,
KANNAPURAM, CHERUKUNNU, CHERUKUNNU P.O.,
KANNUR, PIN - 670301
BY ADVS.
MATHEW KURIAKOSE
G.GIREESH
J.KRISHNAKUMAR (ADOOR)
MONI GEORGE
SHAJI P.K.
PREETHU JAGATHY
ARUN.S.
RESPONDENTS:
1 M/S. SOUTH INDIAN BANK LTD.
HAVING HEAD OFFICE AT T.B. ROAD,
MISSION QUARTERS, THRISSUR,
REPRESENTED BY ITS GENERAL MANAGER, PIN - 680001
2 THE AUTHORIZED OFFICER
M/S. SOUTH INDIAN BANK LTD.,
REGIONAL OFFICE, SIB HOUSE, CHALAD ALAVIL ROAD,
CHALAD, KANNUR,, PIN - 670014
3 THE BRANCH MANAGER, M/S. SOUTH INDIAN BANK LTD.,
KANNUR MAIN BRANCH, SWADESHI SHOPPING COMPLEX,
BANK ROAD, KANNUR, PIN - 670001
BY ADV P.A.AUGUSTINE(AREEKATTEL)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.3576 of 2024
2
JUDGMENT
Dated this the 23rd day of May, 2024
The petitioner, who has availed a financial assistance
from the South Indian Bank Limited and who faced
proceedings under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002, has approached this Court seeking the following reliefs:
(i) Issue a writ of certiorari or any other writ order
or direction quashing Exts.P2 and P3 notices; and
further proceedings pursuant thereto;
(ii) Issue a writ of mandamus or any other writ
order or direction commanding respondent No.1 to
regularize and reschedule the repayment in the
financial transactions referred to in Exts.P2 and P3
notices, and permitting the petitioner and others
against whom the proceedings are initiated as per
Exts.P2 and P3 notices to discharge the liability of
the defaulted instalments by making payment of
amount in monthly instalments over a period of 24
months and by continuing the payment of ensuing
instalments within the rescheduled repayment
period;
(iii) Issue a writ of mandamus or any other writ
order or direction commanding respondent Nos.1 to
3 not to continue the proceedings pursuant Exhibits
P2 and P3 notices;
(iv) Issue such other appropriate writ, order or
direction which this Hon'ble Court may deem fit in
the circumstances of the case; and
(v) Award costs of these proceedings to the
petitioner.
2. Exts.P1 and P2, which are impugned in the writ
petition, would indicate that those are notices issued under
the provisions of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
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
spk
APPENDIX OF WP(C) 3576/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SUMMONS ISSUED TO
THE PETITIONER AND OTHERS IN O.A. NO.
782 OF 2023 ON THE FILES OF THE DEBTS
RECOVERY TRIBUNAL - I, ERNAKULAM
Exhibit P2 A TRUE COPY OF THE NOTICE DATED
01.11.2023 ISSUED TO THE PETITIONER
AND OTHERS BY THE SECOND RESPONDENT
UNDER SECTION 13(4) OF THE SARFAESI
ACT R/W. RULE 8(1) OF THE SECURITY
INTEREST (ENFORCEMENT) RULES, 2002
Exhibit P3 A TRUE COPY OF THE NOTICE DATED
16.01.2024 ISSUED TO THE PETITIONER
AND OTHERS UNDER SECTION 13(8) OF THE
SARFAESI ACT AND RULE 8(6) OF THE
SECURITY INTEREST (ENFORCEMENT) RULES,
