Gurudayal Mangalathu Palaniyappan v. The Authorized Officer, India Bulls Housing Finance Ltd & The Manager, India Bulls Housing Finance Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936** **WP(C).No. 15588 of 2014 (W) ----------------------------** ## **PETITIONER(S):** **--------------** **GURUDAYAL MANGALATHU PALANIYAPPAN, S/O P.K. PALANIYAPPAN, GURU NIVAS, A.K. STREET, MULLACKAL, ALAPPUZHA- 689 011.** **BY ADVS.SRI.SAJI MATHEW SRI.DENU JOSEPH** ## **RESPONDENT(S):** **--------------** **1. THE AUTHORISED OFFICER, INDIA BULLS HOUSING FINANCE LTD, M-62 & 63, IST FLOOR, CANNAUGHT POLICE, NEW DELHI – 110 001.** **2. THE MANAGER,** **INDIA BULLS HOUSING FINANCE LTD., TRUST PHARMA BUILDING, 3RD FLOOR, KAYYATH LANE, PALARIVATTOM, JANATHA JUNCTION, COCHIN – 682 025.** **BY ADV. SRI.P.RADHAKRISHNAN (1) BY ADV. SRI.MADHU RADHAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rvs/** _**WP(C).No. 15588 of 2014 (W)**_ ## **APPENDIX** **PETITIONER(S)' EXHIBITS : ------------------------** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 13-11-2013 ISSUED BY THE IST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 06-12-2013 PASSED IN WPC NO 30018/2013 BY THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE POSSESSION NOTICE DATED 27-01-2014. EXHIBIT P4 TRUE COPY OF THE REPLY DATED 16-06-2014 ISSUED BY THE PETITIONER TO THE REPSONDENTS.** **RESPONDENT(S)' EXHIBITS: -----------------------** **NIL.** **/true copy/** **P.A.TO JUDGE** **rvs/** ## **K.Vinod Chandran, J.** ---------------------------------------- ## **W.P.(C).No.15588 of 2014** ## ----------------------------------------- **Dated this the 13[th] day of August, 2014 J U D G M E N T** The petitioner is aggrieved with the recovery proceedings initiated, against the residential property, as also the business premises of the petitioner. Admittedly, three properties were mortgaged to the respondent Bank for availing of a housing loan of around Rs.3,00,00,000/-(three crores only). Even according to the petitioner, the disbursed amount is 3,08,44,528/-. The disbursement of which was concluded by the last disbursal on 26.08.2010. , The petitioner, who admittedly, has built a house worth around Rs.6 Crores; pleads now before this Court that he is helpless, insofar as making the repayment to the loan amounts. 2. The plea put forward is that the Bank has WPC No.15588/2014 ::2:: an option as per Rule 8(5) of the Enforcement Rules under the SARFAESI Act, which includes a private sale of the property in which necessarily the petitioner would have to be participated. It is the contention of the petitioner that he may be allowed to continue in possession and negotiate with third parties so as to enable satisfaction of the entire loan amounts, by sale of the mortgaged property. 3. The learned counsel for the respondent, however, stoutly opposes the prayer, especially basing his arguments on the antecedents of the petitioner. The petitioner having availed of a loan of around 3 crores, committed continuous default and on demand being raised was before this Court earlier, as is evidenced by Ext.P2 judgment. The said writ petition was filed merely on an apprehension that the photograph of the petitioner would be published in a news paper. The petitioner on that cause of action WPC No.15588/2014 ::3:: sought for time to wipe off the liabilities. 4. This Court, permitted the petitioner to sell one item of the mortgaged property for wiping off the entire liability. The petitioner was also directed to move the 2[nd] respondent for facilitating such procedure. However, the learned counsel for the respondent Bank would submit that no such request was made before the Bank nor did the petitioner do anything to settle the liability due. 5. On continuous default, the Bank was constrained to issue Section 13 (2) notice under the SARFAESI Act as is evidenced by Ext.P3. When possession was taken over, after obtaining orders from the jurisdictional Magistrate, the petitioner allegedly set up three tenants who moved the Debt Recovery Tribunal, with separate Securitisaiton Applications, as also the jurisdictional Magistrate with a claim petition. The petitioner would however, WPC No.15588/2014 ::4:: contend that he was not aware of the said proceedings and that he did not set up those persons. If that be so, definitely the petitioner would have been in possession and there could be no claim for any third parties to prefer applications as tenants, before the DRT or before the Magistrate. In any event, all those applications filed, stood rejected by the respective courts. 6. When actual physical possession was sought to be taken over, the petitioner deposited an amount of Rs.40,00,000/-. But, again defaulted in further repayment and approached this Court with the above writ petition. In the above writ petition an interim order was passed on 19.06.2014 wherein the petitioner was directed to remit a further sum of Rs.25 lakhs. Admittedly, the said amounts were not deposited. When the matter was posted on 08.08.2014 this Court, specifically gave time to the WPC No.15588/2014 ::5:: petitioner to comply with the interim order and the matter has come up today for disposal. 7. The interim order has not been complied with even as on today. In the context of the petitioner having expressed his helplessness; as to making repayments, it is only proper that the Bank be permitted to proceed with the property as provided under the SARFAESI Act. With respect to the option available to the Bank, it would be for the bank to decide as to which option the bank should resort to. It may not be proper for this Court to substitute its own views over the decision of the Bank nor can this Court direct the Bank to act in a particular manner; when this Court has absolutely no expertise in such financial matters. The Bank would be entitled to proceed against the property and take possession of the same, since the SARFAESI Act specifically provides for it. With respect to the contentions WPC No.15588/2014 ::6:: against any irregularity in SARFAESI proceedings; the petitioner could only approach the Tribunal as has been held in **AIR 2010 SC 3413 Union Bank of India v. Satyavati Tondon and others** and **2011** **(2) SCC 782 Kanaiyalal Lalchand Sachdev v. State of Maharashtra and others** . In such circumstance, the writ petition would stand dismissed, however, leaving the parties to suffer their costs. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge