## IN THE HIGH COURT OF KERALA AT ERNAKULAM
## PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944
## WP(C) NO. 894 OF 2022
## PETITIONER/S:
1 ANIL KUMAR P.C., AGED 46 YEARS S/O. LATE CHELLAPPAN PILLAI, DEEPAM, THULAPARAMBU SOUTH, HARIPAD P.O., ALAPPUZHA DISTRICT-690501. 2 DEEPA S.S., AGED 38 YEARS W/O. ANIL KUMAR P.C., DEEPAM, THULAPARAMBU SOUTH, HARIPAD P.O., ALAPPUZHA DISTRICT-690501. BY ADVS. M.P.KRISHNAN NAIR T.D.SUSMITH KUMAR K.K.VIVEKANANDAN M.J.WILFRED DAS
## RESPONDENT/S:
1 THE SOUTH INDIAN BANK LTD., HEAD OFFICE, SIB HOUSE, MISSION QUARTERS, THRISSUR680001, REPRESENTED BY CHAIRMAN AND CEO. 2 REGIONAL MANAGER, SOUTH INDIAN BANK LIMITED, 2ND FLOOR, TMJ COMPLEX, RAMANCHIRA, THIRUVALLA-689107. 3 THE SOUTH INDIAN BANK LTD., KARTHIKAPPALLY BRANCH, ST. THOMAS BUILDING, KARTHIKAPPALLY, ALAPPUZHA DISTRICT-690516, REPRESENTED BY BRANCH MANGER. 4 THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM-682036, REPRESENTED BY ITS REGISTRAR. 5 THE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA, COURT COMPLEX, ALAPPUZHA-688001. 6 THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, KATHRIKADAVU, KOCHI-
W.P.(C)No.894 of 2022 2
682017.
- 7 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
- 8 THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
- 9 THE DISTRICT COLLECTOR, ALAPPUZHA-688001.
- 10 THE DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA-688001.
11 THE SUB INSPECTOR OF POLICE, HARIPAD POLICE STATION, ALAPPUZHA DISTRICT-690514.
12 THE TAHSILDAR, HARIPAD TALUK, ALAPPUZHA DISTRICT-690514.
- 13 THE VILLAGE OFFICER, HARIPAD VILLAGE, ALAPPUZHA DISTRICT-690514.
14 BRIJESH N.B., THE THEN BRANCH MANAGER, SOUTH INDIAN BANK LIMITED, KARTHIKAPPALLY BRANCH (NOW UNDER DISMISSAL), RESIDING AT NO.23/1202/ANJALI, BYPASS ROAD, THIRUVANNUR P.O., KOZHIKODE, KOZHIKODE CITY-673001.
15 ABHILASH C. SOMAN, ADVOCATE COMMISSIONER IN MC NO.131/2020, ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA, SNDP UNION BUILDING, 1ST FLOOR, ROOM NO.4, NEAR TO KIDANGAMPARAMBU TEMPLE, ALAPPUZHA-688001.
16 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS (BANKING DIVISION), NEW DELHI-110001. 17 THE FRAUD MONITORING CELL, RESERVE BANK OF INDIA, DEPARTMENT OF BANKING SUPERVISION, CENTRAL OFFICE, MUMBAI-400001.
18 THE GENERAL MANAGER, DEPARTMENT OF BANKING SUPERVISION, RESERVE BANK OF
W.P.(C)No.894 of 2022 3
INDIA, BAKERY JUNCTION, THIRUVANANTHAPURAM-695001.
BY ADVS. FOR R1 TO R3 SRI. SUNIL SHANKER, SC. FOR SOUTH INDIAN BANK & ADV. FARHA MATHER FOR R6 & R16 SRI. MANU S., ASG OF INDIA FOR R7 TO R13 SRI. SUDHEER GOPALAKRISHNAN, PP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.894 of 2022 4
## JUDGMENT
This Writ Petition(Civil) is filed by the petitioners challenging the proceedings under Securitisation and Reconstruction of Financial Assets and Reinforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act) initiated against the petitioners, at the instance of the 1[st] respondent. Exhibits P29, P30
and P31 are the notices issued by the 1[st]
respondent-Bank in this regard, by invoking their rights under various provisions of SARFAESI Act.
2. In United Bank of India v. Satyawati
Tondon and Ors [(2010)8 SCC 110] the Hon’ble Supreme Court deprecated the practice of entertaining Writ Petitions challenging the proceedings initiated under the provisions of
W.P.(C)No.894 of 2022 5
SARFAESI Act. In Authorized Officer, State Bank of Tranvancore and Ors. v. Mathew K.C.[(2018)3 SCC 85] also, the aforesaid view was reiterated by the Hon’ble Supreme Court by making serious criticism against the invocation of powers under Article 226 of the Constitution of India in respect of the matters pertaining to SARFAESI Act. The observations made by the Hon’ble Supreme Court in the aforesaid judgments were made by mainly taking into consideration of the fact that, the SARFAESI Act, provides for a special procedure for speedy recovery
proceedings and it also provides for alternative remedy to challenge the proceedings by virtue of Section 17 of the Act. In the light of the above specific prohibition, this writ petition cannot be entertained. In such circumstances, I am of the view that, it is only proper that the petitioners be relegated to invoke the
W.P.(C)No.894 of 2022 6
alternative remedy, as contemplated under Section 17 of the SARFAESI Act.
3. The learned counsel for the petitioners
submitted that, he may be granted some time for
initiating proceedings by invoking their right under Section 17 of the Act. The proceedings
which are under challenge in this Writ Petition
were initiated during the period of Covid-19 pandemic and by virtue of various orders passed
by the Hon’ble Supreme Court in this regard, the
period of limitation stood suspended during the
relevant period. The order of suspension of the
period of limitation has come to an end with effect from 28.2.2022.
4. In such circumstances, taking note of
the extra ordinary circumstances which was in
existence at the relevant time, I am of the
view that, some indulgence can be shown by
providing a breathing time to the petitioners.
W.P.(C)No.894 of 2022 7
Accordingly, it is ordered that, if the
petitioners submit an application under Section 17 of the SARFAESI Act within a period of 45 days from 28.2.2022, the same shall be
entertained by the Debt Recovery Tribunal by treating the same as an application submitted in
time and shall consider the same in accordance with law. In order to enable the petitioners to invoke the said remedy, all the recovery
proceedings initiated against the petitioners at
the instance of 1[st] respondent-Bank against the petitioners by invoking their rights under Section 13 of the SARFAESI Act shall be kept in
abeyance, for a period of 45 days from 28.02.2022. Upon submission of an application
under Section 17 of the SARFAESI Act, the Debt
Recovery Tribunal shall take a decision thereon
which would include a decision in respect of an
interim order as well, in accordance with law,
W.P.(C)No.894 of 2022 8
untrammeled by any of the observations made
herein.
Sd/ZIYAD RAHMAN A.A. JUDGE
pkk
W.P.(C)No.894 of 2022 9
## APPENDIX OF WP(C) 894/2022
PETITIONER’S EXHIBITS:
|Exhibit P1|TRUE COPY OF THE ORDER DATED 16/12/2021 OF|
|---|---|
||THE HON'BLE SUPREME COURT IN PETITION FOR|
||SPECIAL LEAVE TO APPEAL (C) NO.10911/2021.|
|Exhibit P2|TRUE PHOTOCOPY OF THE LETTER DATED|
||25/08/2017 ALLEGED TO HAVE BEEN GIVEN BY|
||THE PETITIONER TO THE RESPONDENT BANK.|
|Exhibit P3|TRUE COPY OF THE REPRESENTATION SUBMITTED|
||BY THE PETITIONER THROUGH EMAIL ON|
||07/08/2017 TO THE RESPONDENT BANK.|
|Exhibit P4|TRUE COPY OF THE REPRESENTATION DATED|
||06/11/2017 SUBMITTED BY THE PETITIONER TO|
||THE RESPONDENT BANK.|
|Exhibit P5|TRUE COPY OF THE EMAIL SUBMITTED BY THE|
||PETITIONER TO THE RESPONDENT BANK ON|
||18/11/2017.|
|Exhibit P6|TRUE COPY OF THE REPRESENTATION DATED|
||17/10/2018 SUBMITTED BY THE PETITIONER TO|
||THE RESPONDENT BANK.|
|Exhibit P7|TRUE COPY OF THE REPRESENTATION DATED|
||26/06/2019 SUBMITTED BY THE PETITIONER TO|
||THE RESPONDENT BANK.|
|Exhibit P8|TRUE COPY OF THE REPRESENTATION DATED|
||03/12/2019 SUBMITTED BY THE PETITIONER TO|
||THE RESPONDENT BANK WHICH WAS ACKNOWLEDGED|
||BY THEM WITH SEAL AND SIGNATURE.|
|Exhibit P9|TRUE COPY OF THE LETTER DATED 27/11/2020|
||ISSUED BY THE STATE BANK OF INDIA (LEAD|
||BANK) IN REPLY TO THE COMPLAINT DATED|
||14/10/2020 SUBMITTED BY THE PETITIONERS TO|
||DISTRICT COLLECTOR.|
|Exhibit P10|TRUE COPY OF THE DEMAND NOTICE DATED|
||06/11/2019 ISSUED BY THE RESPONDENT BANK.|
|Exhibit P11|TRUE COPY OF THE POSSESSION NOTICE DATED|
W.P.(C)No.894 of 2022 10
||04/02/2020 ISSUED BY THE RESPONDENT BANK.|
|---|---|
|Exhibit P12|TRUE COPY OF THE NOTICE ISSUED UNDER SEC.|
||13(8) OF THE SARFAESI ACT BUY THE|
||RESPONDENT BANK.|
|Exhibit P13|TRUE COPY OF THE REPRESENTATION DATED|
||30/06/2020 SUBMITTED BY THE PETITIONERS TO|
||THE RESPONDENT BANK WHICH WAS ACKNOWLEDGED|
||BY THEM WITH SEAL AND SIGNATURE.|
|Exhibit P14|TRUE COPY OF THE LETTER DATED 27/07/2020|
||ISSUED BY THE RESPONDENT BANK TO THE|
||PETITIONERS.|
|Exhibit P15|TRUE COPY OF THE NOTICE DATED 01/12/2020|
||ISSUED BY THE RESPONDENT BANK TO THE 1ST|
||PETITIONER FOR SELLING THE GOLD ORNAMENTS.|
|Exhibit P16|TRUE COPY OF THE NOTICE DATED 01/12/2020|
||ISSUED BY THE RESPONDENT BANK TO THE 2ND|
||PETITIONER FOR SELLING THE GOLD ORNAMENTS.|
|Exhibit P17|TRUE COPY OF THE REPLY NOTICE DATED|
||22/12/2020 SUBMITTED BY THE 1ST PETITIONER|
||TO THE NOTICE DATED 01/12/2020.|
|Exhibit P18|TRUE COPY OF THE AUCTION NOTICE DATED|
||19/12/2020 ISSUED BY THE RESPONDENT BANK TO|
||THE 1ST PETITIONER FOR SELLING THE GOLD|
||ORNAMENTS.|
|Exhibit P19|TRUE COPY OF THE AUCTION NOTICE DATED|
||19/12/2020 ISSUED BY THE RESPONDENT BANK TO|
||THE 2ND PETITIONER FOR SELLING THE GOLD|
||ORNAMENTS.|
|Exhibit P20|TRUE COPY OF THE ORDER DATED 03/02/2020 IN|
||WP(C) NO.29201/2020 OF THIS HON'BLE COURT.|
|Exhibit P21|TRUE COPY OF THE LETTER DATED NIL OBTAINED|
||BY THE RESPONDENT BANK FROM ONE OF THE|
||CUSTOMERS, JISH RAGESH.|
|Exhibit P21A|TRUE COPY OF THE LETTER DATED 23/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, RANJEEV.|
W.P.(C)No.894 of 2022 11
|Exhibit P21B|TRUE COPY OF THE LETTER DATED 25/08/17|
|---|---|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, YACOOB.|
|Exhibit P21C|TRUE COPY OF THE LETTER DATED 29/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SUNNY THOMAS.|
|Exhibit P21D|TRUE COPY OF THE LETTER DATED NIL OBTAINED|
||BY THE RESPONDENT BANK FROM ONE OF THE|
||CUSTOMERS, JUNIAD SAINULABDEEN.|
|Exhibit P21E|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM THE|
||PETITIONERS.|
|Exhibit P21F|TRUE COPY OF THE LETTER DATED 24/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SUNIL KUMAR.|
|Exhibit P21G|A TRUE COPY OF THE LETTER DATED 28/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, LAL PANICKER.|
|Exhibit P21H|TRUE COPY OF THE LETTER DATED 28/08/17|
||OBTAINED BY THE BANK FROM ONE OF THE|
||CUSTOMERS, KRISHNA KUMAR.|
|Exhibit P21I|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||TH CUSTOMERS, MOHANAN K.|
|Exhibit P21J|TRUE COPY OF THE LETTER DATED 23/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SALIM SHAH.|
|Exhibit P21K|TRUE COPY OF THE LETTER DATED 23/08/2017|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, ANIL KUMAR K.|
|Exhibit P21L|TRUE COPY OF THE LETTER DATED 28/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, YASODARAN.|
|Exhibit P21M|TRUE COPY OF THE LETTER DATED 12/10/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, GOPALAKRISHNAN K.|
W.P.(C)No.894 of 2022 12
|Exhibit P21N|TRUE COPY OF THE LETTER DATED NIL OBTAINED|
|---|---|
||BY THE RESPONDENT BANK FROM ONE OF THE|
||CUSTOMERS, SUDHEEPAN K.R.|
|Exhibit P21O|TRUE COPY OF THE LETTER DATED 31/08/1|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SUDARSANA KUMAR.|
|Exhibit P21P|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, GIRIJA.|
|Exhibit P21Q|TRUE COPY OF THE LETTER DATED NIL OBTAINED|
||BY THE BANK FROM ONE OF THE CUSTOMERS,|
||GIRIJA.|
|Exhibit P21R|TRUE COPY OF THE ABOVE LETTER DATED|
||24/08/17 OBTAINED BY THE BANK FROM ONE OF|
||THE CUSTOMERS, PRASAD B.|
|Exhibit P21S|TRUE COPY OF THE LETTER DATED 29/08/17|
||OBTAINED BY THE BANK FROM ONE OF THE|
||CUSTOMERS, MURUKAN.|
|Exhibit P21T|TRUE COPY OF THE LETTER DATED 29/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SUJA BINU.|
|Exhibit P21U|TRUE COPY OF THE LETTER DATED 29/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, SALFATH.|
|Exhibit P21V|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, ABDUL RASHID.|
|Exhibit P21W|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, NUJUM M.|
|Exhibit P21X|TRUE COPY OF THE LETTER DATED 25/08/17|
||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
||THE CUSTOMERS, BIJU B.|
|Exhibit P21Y|TRUE COPY OF THE LETTER DATED 25/09/17|
||OBTAINED BY THE BANK FROM ONE OF THE|
||CUSTOMERS, LAL KUMAR K.|
W.P.(C)No.894 of 2022 13
|Exhibit P21|Z|TRUE COPY OF THE LETTER DATED 14/08/17|
|---|---|---|
|||OBTAINED BY THE BANK FROM ONE OF THE|
|||CUSTOMERS, NITHIN CLETUS.|
|Exhibit P21|AA|TRUE COPY OF THE LETTER DATED 08/09/17|
|||OBTAINED BY THE RESPONDENT BANK FROM ONE OF|
|||THE CUSTOMERS, NITHIN CLETUS.|
|Exhibit P22||TRUE COPY OF THE LETTER DATED 15/07/2017|
|||GIVEN BY THE 14TH RESPONDENT BRIJESH TO THE|
|||RESPONDENT BANK.|
|Exhibit P23||TRUE COPY OF THE COMPLAINT DATED 28/09/2017|
|||SUBMITTED BY THE RESPONDENT BANK TO THE|
|||DISTRICT SUPERINTENDENT OF POLICE,|
|||ALAPPUZHA.|
|Exhibit P24||TRUE COPY OF THE JUDGMENT DATED 09/01/2019|
|||IN WP(C) NO.588/2019 OF THIS HON'BLE COURT.|
|Exhibit P25||TRUE COPY OF THE FIR DATED 27/09/2019|
|||REGISTERED BY THE CBI.|
|Exhibit P26||TRUE COPY OF THE MC NO.131/2020 ON THE FILE|
|||OF THE LEARNED CJM COURT, ALAPPUZHA.|
|Exhibit P27||TRUE COPY OF THE ORDER DATED 08/12/2021 IN|
|||WP(C) NO.29201/20 AND CRL.M.C.NO.6086/21.|
|Exhibit P28||TRUE COPY OF THE ORDER DATED 21/12/2021 IN|
|||WP(C) NO.29201/20 AND CRL.M.C.NO.6086/21.|
|Exhibit P29||TRUE COPY OF THE POSSESSION NOTICE DATED|
|||16/10/2021 ISSUED BY THE RESPONDENT BANK.|
|Exhibit P30||TRUE COPY OF THE CORRIGENDUM DATED|
|||20/10/2021 ISSUED BY THE RESPONDENT BANK.|
|Exhibit P31||TRUE COPY OF THE NOTICE DATED 27/10/2021|
|||ISSUED BY THE RESPONDENT BANK UNDER SEC.|
|||13(8) OF THE SARFAESI ACT.|