Anil P. Menon v Axis Bank Ltd (Paravur Branch) and Axis Bank Ltd., Authorized Officer, Retail Asset Centre

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## **`WP(C) NO. 35691 OF 2023`** ## **`PETITIONER`** ``` ANIL P. MENON AGED 53 YEARS S/O.PADMANABHA MENON, MADHURAYIL VEEDU, KAKKULISSERY DESOM, KUZHUR P.O., KUZHOOR VILLAGE, THRISSUR DISTRICT, PIN – 680735 ``` ## **`BY ADV N.L.BITTO`** ## **`RESPONDENTS:`** - **`1 AXIS BANK LTD. PARAVUR BRANCH REP BY THE BRANCH MANAGER, MATHEW POULO ARCADE, KMK JUNCTION, NORTH PARAVUR, ERNAKULAM DISTRICT,, PIN – 683513`** - **`2 AUTHORISED OFFICER AXIS BANK LTD., RETAIL ASSET CENTRE, 5TH FLOOR, CHICAGO PLAZA, RAJAJI ROAD, ERNAKULAM,, PIN – 682035`** ## **`SRI.SAJU N.A`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.35691 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 10[th] day of January, 2024 The petitioner availed a Business Loan of 1 Crore₹ in the year 2014, repayment of which was defaulted. Now, the petitioner is aggrieved by coercive action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, at the instance of the respondents. 2. The petitioner states that though the petitioner made remittances promptly during the initial repayment period of the financial advance, he could not pay the repayment installments promptly later due to severe financial difficulty. Now, the Bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and his property ``` WP(C) NO.35691 OF 2023 ``` ``` 3 ``` was sold in public auction on 20.10.2023. 3. The petitioner is ready to liquidate the outstanding dues by way of instalment, but the Bank is not ready to accept the same. Bank already sold the property in public auction. It is in such circumstances in order to avoid coercive action, including conformation of sale, seeking indulgence of this Court for appropriate directions either to regularize the loan account or to pay the amounts in instalments, this writ petition is filed. 4 **.** When the writ petition came up for admission, this Court directed the petitioner to deposit an amount of 25₹ lakhs within a period of two weeks. It is submitted by the counsel on either side that the petitioner has not complied with the said direction. 5. Standing Counsel resisted the writ petition. The Standing Counsel pointed out that the petitioner after obtaining the loan, has been consistently making default. ``` WP(C) NO.35691 OF 2023 ``` ``` 4 ``` The total outstanding amount as on 07.11.2023 would come to more than 1,23,70,761/-. The petitioner has approached₹ this Court earlier five times and this writ petition is the 6[th] round of litigation. 6. In view of the consistent judgments of the Hon’ble Apex Court to the effect that powers under Article 226 of the Constitution of India should not be invoked lightly in the matter of proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, this writ petition is only to be dismissed. 7. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 8. The grievance of the petitioner is relating to the proceedings initiated by the respondents under Sections 13 and 14 of the Securitisation Act and the attempt of the ``` WP(C) NO.35691 OF 2023 ``` ``` 5 ``` respondents to take over and sell the secured asset provided by the petitioner. 9. 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. 10. 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. 11. Following the judgment in _**Satyawati Tondon**_ (supra), a Division Bench of this Court in the judgment in ``` WP(C) NO.35691 OF 2023 ``` ``` 6 ``` _**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. 12. 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. 13. 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. ``` WP(C) NO.35691 OF 2023 ``` ``` 7 ``` 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** hmh ``` WP(C) NO.35691 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 35691/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit-P1 ``` ``` A TRUE COPY OF SALE NOTICE U/S 8(5) AND 9(1() OF SARFAESI ACT ISSUED BY THE RESPONDENTS DATED 12/09/2023 ALONG WITH PROCLAMATION ```