Kerala High Court
Jithin Jayakrishnan vs The Authorized Officer on 23 January, 2025
2025:KER:5338
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JANUARY 2025/3RD MAGHA, 1946
WP(C) NO. 24318 OF 2024
PETITIONER:
JAYAKRISHNAN T.P.,
AGED 73 YEARS,
S/O. RAMAN KUTTY MENON, PALATT HOUSE,
CHALAVARA (P.O.), OTTAPALAM,
PALAKKAD DISTRICT, PIN - 679 505.
BY ADV K.M.MUHAMMED HUSSAIN
RESPONDENTS:
1 THE AUTHORIZED OFFICER,
THE SHORANUR CO-OPERATIVE URBAN BANK LTD.,
HEAD OFFICE SHORANUR, SHORANUR,
PALAKKAD DISTRICT, PIN - 679 121.
2 THE SHORANUR CO-OPERATIVE URBAN BANK LTD.,
HEAD OFFICE SHORANUR, SHORANUR, PALAKKAD DISTRICT,
REPRESENTED BY ITS AUTHORIZED OFFICER,
PIN - 679 121.
BY ADVS.
P.P.THAJUDEEN
ASWIN P KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.01.2025, ALONG WITH WP(C).25325/2024, 42939/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
WP(C) NO. 25325 OF 2024
PETITIONER/S:
1 JITHIN JAYAKRISHNAN,
AGED 38 YEARS,
S/O.JAYAKRISHNAN T.P, PALATT HOUSE,
CHALAVARA (PO), OTTAPALAM, PALAKKAD DISTRICT,
PIN - 679 505.
2 RAJESH.P.,
AGED 41 YEARS,
S/O.GOVINDANKUTTY, RAJU NIVAS, MUNDAMUKA,
GANESHGIRI P.O, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN - 679 123.
BY ADV K.M.MUHAMMED HUSSAIN
RESPONDENTS:
1 THE AUTHORIZED OFFICER,
THE SHORANUR CO-OPERATIVE URBAN BANK LTD,
HEAD OFFICE SHORANUR, SHORANUR,
PALAKKAD DISTRICT, PIN - 679 121.
2 THE SHORANUR CO-OPERATIVE URBAN BANK LTD,
HEAD OFFICE SHORANUR, SHORANUR, PALAKKAD. DISTRICT,
REPRESENTED BY ITS AUTHORIZED OFFICER,
PIN - 679 121.
BY ADV Thajudeen
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.01.2025, ALONG WITH WP(C).24318/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
WP(C) NO. 42939 OF 2024
PETITIONERS:
VIMALA VIJAYARAGHAVAN,
AGED 65 YEARS,
W/O. LATE VIJAYARAGHAVAN, ERANEZHATHVENGALI HOUSE,
CHERKKARA P O, THALIKULAM, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN - 680 569.
BY ADV B.SABITHA (DESOM)
RESPONDENTS:
1 T P JAYAKRISHNAN,
AGED 70 YEARS,
(PROPRIETOR VINAYAKA ENTERPRISES) S/O. RAMANKUTTY
MENON, PALATT HOUSE, CHALAVARA P O,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN - 679 505.
2 USHA JAYAKRISHNAN,
AGED 60 YEARS,
(PROPRIETOR KAVERI DISTRIBUTORS) W/O. T P JAYAKRISHNAN,
PALATT HOUSE, CHALAVARA P O, OTTAPPALAM TALUK,
PALAKKAD DISTRICT, PIN - 679 505.
3 JISHA JAYAKRISHNAN,
AGED 39 YEARS,
(PROPRIETOR SREELAKSHMI TRADING) W/O. RAJESH, PALATT
HOUSE, CHALAVARA P O, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN - 679 505.
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
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4 DURGA E TP,
AGED 36 YEARS
(PROPRIETOR SREEPARVATY AGENCIES) W/O. HITHIN
JAYAKRISHNAN, PALATT HOUSE, CHALAVARA P.O.,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN - 679 505.
5 RAJESH,
AGED 41 YEARS,
(PROPRIETOR YAMUNA TRADERS) S/O. P GOVINDANKUTTY,
RAJU NIVAS, GANESHGIRI P O, MUNDAMUKA,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN - 679 123.
6 GENERAL MANAGER(AUTHORIZED OFFICER),
THE SHORANUR CO-OPERATIVE URBAN BANK LTD,
NO. F.1639, SHORANUR, PALAKKAD, PIN - 679 121.
7 THE SHORANUR CO-OPERATIVE URBAN BANK LTD,
NO.F.1639, SHORANUR, PALAKKAD
REPRESENTED BY ITS SECRETARY, PIN - 679 121.
BY ADVS.
K.M.MUHAMMED HUSSAIN
P.P.THAJUDEEN
ASWIN P KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.01.2025, ALONG WITH WP(C).24318/2024 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
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JUDGMENT
(Dated this the 23rd day of January, 2025)
Writ Petition Nos.24318 of 2024 and 25325 of 2024 are
filed seeking a direction to the respondent bank to permit the
petitioners to clear the liability in respect of a loan account and
in respect of which proceedings have been initiated under the
provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002
(SARFAESI Act) in installments.
2. In W.P.(C).No.24318 of 2024, this Court, on
09.07.2024, passed the following order:
"Issue notice to respondents by speed post.
The petitioner is directed to take steps within two
days for service of notice.
2. The present writ petition has been filed
seeking the following prayers:
(i) Issue a Writ in the nature of
Mandamus or any other appropriate
Writ, order or direction directing the
respondents to permit the petitioner to
remit the loan amount in 20 installments
(ii) Consequently Issue a Writ in
the nature of Mandamus or any other
appropriate Writ, order or direction
directing the respondents to keep all
further proceedings pursuant to Exhibit
P4 in abeyance till the petitioner clear
off the loan amount
(iii) To dispense with filing of
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
the translation of Vernacular documents.
(iv) Allow the Writ petition with
costs.
(v) Grant such other further
reliefs which this Hon'ble Court may be
pleased to direct in the facts and
circumstances of the case.
3. The total outstanding amount against the
petitioner is said to be Rs.83,55,592/-. Τo test the
bonafide of the petitioner, the petitioner is directed to
deposit Rs.20,00,000/- on or before 04.08.2024.
4. Till the next date of posting, further
proceedings in pursuance to Ext.P4 notice shall be
kept in abeyance.
Post this matter on 05.08.2024."
It is not disputed before me that, no amount has been paid
pursuant to the order dated 09.07.2024 in W.P.(C).No.24318 of
2024.
3. Similarly in W.P.(C).No.25325 of 2024, this Court,
by order dated 15.07.2024, passed the following order:
"Issue notice to the respondents by speed
post.
2. The petitioners submit that Ext.P4 notice is
issued by the Commissioner to take physical
possession of the secured asset within 15 days from
12.07.2024. The petitioner seeks installment to remit
loan amount in 20 installments.
Taking into consideration of the facts and
circumstances of this case, I stay all further
proceedings pursuant to Ext.P4 for 6 weeks, provided
the petitioner remits Rs.10,00,000/- (Rupees Ten
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
Lakhs only) within a period of one month from today."
It is not disputed before me that, no amount has been paid
pursuant to the order dated 15.07.2024 in W.P.(C) No.25325 of
2024.
4. This Court exercises very limited jurisdiction in
matters arising under the SARFAESI Act and where this Court is
approached with a prayer to permit the borrowers to clear the
liability in installments, the borrowers must prove bona fides.
The non-compliance of the order dated 09.07.2024 in W.P.
(C).No.24318 of 2024 and the order dated 15.07.2024 in W.P.
(C) No.25325 of 2024 indicate that the petitioners in these cases
have not shown any bona fides to enable this Court to permit
them to clear the liability in installments.
5. Therefore, I find no reason to grant the reliefs
sought for in these writ petitions and these writ petitions will
stand dismissed.
6. W.P.(C).No.42939 of 2024 has been filed alleging
that, on the basis of certain forged powers of attorney allegedly
executed by the petitioner, the property of the petitioner has
been mortgaged with the 6 th respondent bank on the strength of
which several loans have been extended to the petitioners in
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
W.P.(C).Nos.25325 of 2024 and 24318 of 2024.
7. It is a case of the petitioner (in W.P.(C) No.42939 of
2024) that the petitioner intends to challenge the creation of
mortgage by using forged powers of attorney and the petitioner
may be permitted to do so. It is submitted that the only remedy
available to the petitioner is to file a suit and seek declaration
and the petitioner may be permitted to do so.
8. Having heard the learned counsel for the petitioner
(in W.P.(C) No.42939 of 2024) and the learned counsel
appearing for the respondent bank and also the learned counsel
appearing for the party respondents, I am of the view that the
question as to whether a mortgage has been created on the
strength of forged powers of attorney is not a matter that can
be adjudicated in a writ petition under Article 226 of the
constitution of India. If the petitioner has a case that the powers
of attorney were forged and thus, the creation of mortgage is
also not sustainable, it is for the petitioner to seek legal
remedies open to the petitioner either before the Debts
Recovery Tribunal or before the competent Civil Court.
Reserving the right of the petitioner to do so, this writ petition
will stand closed. The proceedings initiated against the property
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
of the petitioner in W.P.(C).No.42939 of 2024 under the
provisions of the SARFAESI Act will remain suspended for a
period of one month from today to enable the petitioner to seek
appropriate remedies before the Debts Recovery Tribunal or
before the competent Civil Court. I make it clear that, I have not
expressed any opinion on the question as to whether any suit
will be maintainable before the Civil Court and it is for the
petitioner to establish the same, if the petitioner chooses to
initiate proceedings before the Civil Court.
These writ petitions are disposed of as above.
Sd/-
GOPINATH P.
JUDGE
ADS
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
APPENDIX OF WP(C) 25325/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE CT REPORT ISSUED BY
M/S P K DAS INSTITUTE OF MEDICAL SCIENCE
VANIAMKULAM, OTTAPALAM DATED 12/12/2022.
EXHIBIT P2 THE TRUE COPY OF THE ACCOUNT STATEMENT OF THE
ACCOUNT NO 0003003800000004 DATED 20-06-2024.
EXHIBIT P3 THE TRUE COPY OF THE NOTICE ISSUED AS PER
SECTION 13(2) OF SARFAESI ACT DATED 03-8-
2023.
EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 12-07-2024.
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
APPENDIX OF WP(C) 42939/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICES DATED
07-08-2023 ISSUED TO THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICES DATED
07-08-2023 ISSUED TO THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICES DATED
07-08-2023 ISSUED TO THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICES DATED
07-08-2023 ISSUED TO THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE DEMAND NOTICES DATED
07-08-2023 ISSUED TO THE 5TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF ACCOUNT OF 1ST
RESPONDENT DATED 1/1/2018 TO 13/06/2023.
EXHIBIT P7 TRUE COPY OF THE STATEMENT OF ACCOUNT OF
2NDRESPONDENT DATED 1/1/2018 TO 13/06/2023.
EXHIBIT P8 TRUE COPY OF THE STATEMENT OF ACCOUNT OF
3RDRESPONDENT DATED 1/1/2018 TO 13/06/2023
EXHIBIT P9 TRUE COPY OF THE STATEMENT OF ACCOUNT OF 4TH
RESPONDENT DATED 1/1/2018 TO 13/06/2023.
EXHIBIT P10 TRUE COPY OF THE STATEMENT OF ACCOUNT OF 5TH
RESPONDENT DATED 1/1/2018 TO 13/06/2023
EXHIBIT P11 TRUE COPY OF THE POWER OF ATTORNEY DATED
12-02-2021.
EXHIBIT P12 TRUE COPY OF THE EXTRACT OF THE ATTENDANCE
REGISTER OF THE AMALA INSTITUTE OF MEDICAL
SCIENCES, THRISSUR DATED 12/02/2021.
EXHIBIT P13 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 13.05.2022.
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
EXHIBIT P14 TRUE COPY OF THE NEWS PAPER PUBLICATION DATED
26.09.2023 IN MALAYALA MANORAMA.
EXHIBIT P15 TRUE COPY OF THE COMPLAINT PREFERRED BEFORE
THE STATION HOUSE OFFICER DATED 20-09-2024.
EXHIBIT P16 TRUE COPY OF THE COMPLAINT BEFORE THE RURAL
SUPERINTENDENT OF POLICE DATED 19.11.2024.
EXHIBIT P17 TRUE COPY OF THE ORDER OF C.J.M, THRISSUR IN
CRL.MP 8621/2024 DATED 09.08.2024.
EXHIBIT P18 TRUE COPY OF THE ADVOCATE COMMISSIONER'S
NOTICE DATED 15.11.2024.
EXHIBIT P19 TRUE COPY OF THE SA APPLICATION FILED BY THE
3RD RESPONDENT ALONG WITH THE DOCUMENTS.
W.P.(C).Nos.24318, 25325 and 42939 of 2024
2025:KER:5338
APPENDIX OF WP(C) 24318/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE CT REPORT ISSUED BY
M/S P K DAS INSTITUTE OF MEDICAL SCIENCE
VANIAMKULAM, OTTAPALAM DATED 12/12/2022.
EXHIBIT P2 THE TRUE COPY OF THE ACCOUNT STATEMENT OF THE
ACCOUNT NO 0003003800000010 DATED
20-06-2024.
EXHIBIT P3 THE TRUE COPY OF THE NOTICE ISSUED AS PER
SECTION 13(2) OF SARFAESI ACT DATED 07-8-2023
THRISSUR.
EXHIBIT P4 THE TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 02- 07-2024.
EXHIBIT P5 THE TRUE COPY OF THE DISCHARGE SUMMARY ISSUED
BY M/S P K DAS INSTITUTE OF MEDICAL SCIENCE
VANIAMKULAM, DATED 22/07/2024.
