Kerala High Court
Sumi K.S vs Cholamandalam Investment And Finance ... on 28 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 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 16247 OF 2024
PETITIONERS:
1 SUMI K.S.,
AGED 37 YEARS, WIFE OF THEKKUMURI VENUGOPAL,
THEKKUMURI HOUSE, KUNNAMPILLY,
NEAR ANTHIMAHAKAVU TEMPLE, THALAPILLY,
THIRSSUR, KERALA, PIN - 680 587.
2 CHINNA,
AGED 65 YEARS
THEKKUMURI HOUSE, KUNNAMPILLY,
NEAR ANTHIMAHAKAVU TEMPLE, THALAPILLY,
THIRSSUR, KERALA, PIN - 680 587.
BY ADV
K.P.SANTHI
RESPONDENT:
CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY
LIMITED,
REPRESENTED BY AUTHORISED OFFICER ,
CHOLA CREST, C54, & 55, SUPER B4,
THIRU VI KA INDUSTRIAL ESTATE, GUINDY, CHENNAI,
PIN - 600 032.
BY ADVS.
PHILIP T.VARGHESE
THOMAS T.VARGHESE(K/000516/1995)
ACHU SUBHA ABRAHAM(K/001758/1999)
V.T.LITHA(K/278/2006)
K.R.MONISHA(K/915/2013)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.16247 of 2024
:2:
JUDGMENT
Dated this the 28th day of May, 2024
The petitioners, who have availed a Housing Loan
from the respondent-Finance Company, approached this
Court when faced with coercive proceedings under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, initiated by the
respondent.
2. The petitioners prayed that there may be an order
staying all further proceedings pursuant to Ext.P4 until
disposal of E.P.No.1156 of 2022 by the District Court,
Thrissur.
3. I have heard the learned Counsel for the
petitioners and the learned Standing Counsel representing
the respondent.
4. The grievance of the petitioners is relating to the
proceedings initiated by the respondent under Section 14 of
the Securitisation Act and the attempt of the respondent to
take over and sell the secured asset provided by the
petitioners.
5. Ext.P4 sought to be challenged by the petitioners,
is a notice memo issued by the Advocate Commissioner
pursuant to orders of the Chief Judicial Magistrate Court,
Thrissur, under Section 14 of the SARFAESI Act, 2002. If
the petitioners are aggrieved by any step taken by a financial
institution under the SARFAESI Act, the petitioners have to
approach the competent tribunal.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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
AMR
APPENDIX OF WP(C) 16247/2024
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE ARBITRATION AWARD
DATED 25-8-2021 IN ARBITRATION CASE
NO. EMKS/CIFCO/041/2020.
Exhibit P2 TRUE COPY OF THE NOTICE DATED 19-6-
2023 IN E.P.NO. 1156 OF 2022 OF THE
DISTRICT COURT, THRISSUR.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 15-9-
2023 UNDER SECTION 13(2) OF THE
SARFAESI ACT.
Exhibit P4 TRUE COPY OF THE NOTICE DATED 6-4-2024
ISSUED IN CRL.M.P.NO. 3628 OF 2024 OF
THE CHIEF JUDICIAL MAGISTRATE COURT,
THRISSUR.
