Heera Lake Front Owners Association v. State Bank of India and M/S Heera Construction Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **WP(C).No. 11640 of 2019** ## **PETITIONER/S:** **HEERA LAKE FRONT OWNERS ASSOCIATION (REG NO.TVM/TC/502/2017) HEERA LAKE FRONT BUILDING, AKKULAM, ATTIPRA VILLAGE, KARIMNAL P.O. THIRUVANANTHAPURAM-695 583, REPRESENTED BY ITS PRESIDENT MR.A.C.MATHEW, AGED 82 YEARS, S/O M.CHERIAN.** **BY ADVS. SRI.G.P.SHINOD SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G.** ## **RESPONDENT/S:** **1 STATE BANK OF INDIA, SARB 1ST FLOOR, SANGAMAM, GAS HOUSE JUNCTION, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS AUTHORIZED OFFICER. 2 STATE BANK OF INDIA, KOWDIAR BRANCH, KOWDIAR.P.O., THIRUVANANTHAPURAM-695 003, REPRESENTED BY ITS MANAGER. 3 M/S HEERA CONSTRUCTION COMPANY LIMITED, REGD OFFICE CITO CENTRE, 113,PATTO PLAZA, PANAKI,GOA, HAVING ITS REGIONAL OFFICE AT HEERA PARK, M P APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014,REPRESENTED BY ITS MANAGING DIRECTOR, ABDUL RASHEED, AGED 63 YEARS, S/O ALIYARU KUNJU** **BY ADV. SRI.R.S.KALKURA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 11640/19 2 ## **JUDGMENT** The petitioner is stated to be the Association of owners of apartments in a building, by name 'Heera Lake Front', at Thiruvananthapuram. According to them, the builder, namely, the 3[rd] respondent herein, is reported to have taken certain loan facilities from the 1[st] respondent-Bank and that consequent to their alleged default in re-payment of the same, the Bank has initiated action not merely against the property on which the building is situated, but also against the apartments therein which, the petitioner asserts, are owned by its individual owners. 2. The essential contention of the petitioner is that, even if it is assumed that the land on which the building is situated is equitably mortgaged to the Bank, they cannot claim any right over the building since, as is clear from Ext.P4-loan sanction, only the land WPC 11640/19 3 has been mortgaged and individual owners had been allowed to construct and own apartments thereon, which according to them are also, in fact, financed by the same Bank. They, therefore, say that the action of the Bank in attempting to take possession of the apartments, as has been attempted by them through Ext.P6 possession notice, is illegal and unlawful; and they, therefore, pray that this notice be set aside by this Court. 3. Sri.R.S.Kalkura, the learned Standing Counsel appearing for the respondent-Bank, submits that the factual narration made by the petitioner in this Writ Petition are not accurate and that he will be able to establish that the Bank has rights over the building also. He says that he will file a detailed counter affidavit in substantiation of his contention, so that this Court can enter into a comprehensive adjudication as regards the rights WPC 11640/19 4 of the Bank over the building. 4. Even when I hear Sri.R.S.Kalkura as afore, the fact remains that the adjudication which is called upon to be done by this Court by the parties, is essentially in the arena of factual factors, which will require an evaluation of several materials, documents and factual circumstances. It is now well settled in law that while this Court acts under Article 226 of the Constitution of India, such considerations are proscribed; and therefore, I am certainly of the firm view that the parties will have to invoke their alternative statutory remedies, if they are so interested, in substantiation of their respective claims. 5. That said, I notice that the specific allegation of the petitioner is that the building is not mortgaged to the Bank, while the land is. They say that the Bank themselves permitted the construction and that the members WPC 11640/19 5 of the Association were allowed to own individual apartments under finance facilities that the Bank themselves had offered them and therefore, that they are fully aware that the individual apartments are not owned by the 3[rd] respondent but by the members of the Association. However, as said above, the petitioner will have to take up those matters in a competent statutory proceeding, since it is conceded before me that Ext.P6 is amenable to an alternative efficacious statutory challenge under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity). However, the one thing that may stand against the petitioner in challenging Ext.P6 at this time is that it was issued as early as in March 2018; but the petitioner says that they came to be aware of it only much later, namely, immediately prior to WPC 11640/19 6 the filing of this Writ Petition. 6. I notice that this Writ Petition was filed on 10.04.2019 and that it has been pending before this Court for more than 3 months. Obviously, therefore, if the petitioner is able to convince the Debts Recovery Tribunal (DRT for short) that they came to be aware of Ext.P6 only immediately prior to the filing of this Writ Petition, they may be able to invoke its jurisdiction, since the law is now well settled that the periods of limitation starts from the date on which litigants came to be aware of the cause of action. 7. On disclosing my mind as afore at the Bar, Sri.R.S.Kalkura, the learned Standing Counsel for the Bank, also submits that this Writ Petition is not maintainable and that the petitioner must invoke their alternative statutory remedies. He says that the adjudication with respect to the rights of the WPC 11640/19 7 parties can be left to the DRT, so that the said Tribunal can consider it in terms of the relevant and germane inputs, rather than this Court being burdened with such a course. 8. Taking note of the afore submissions and since the petitioner admittedly has alternative, efficacious, statutory remedies and being guided by the judgments of the Hon'ble Supreme Court in **Union Bank of India v. Satyawati Tondon [(2010) 8 SCC 110] and in Authorised Officer, State Bank of Travancore and Another v. Mathew K.C. [2018** **(1) KLT 784]** , I am certainly of the view that this Writ Petition cannot be allowed to continue further; and that the petitioner must challenge Ext.P6 or such other subsequent events in terms of law. I am persuaded to this course also because I am told by Sri.R.S.Kalkura that pursuant to Ext.P6, only symbolic possession of the building has been taken and that physical possession will be taken only after following WPC 11640/19 8 due procedure as per the provisions of the SARFAESI Act. Resultantly, I close this Writ Petition without issuing any orders; however, leaving full liberty to the petitioner, either to approach the Bank and justify their claims made in this Writ Petition, so as to make an attempt to settle the entire liability out of Court, so that the property and building can be saved; and in the alternative, to approach the Statutory Forum, either challenging Ext.P6, if they are so interested, or to challenge further action that may be taken by the Bank in terms of law. Even though it is not statutorily necessary, since the petitioner has taken the specific stand, as recorded above, with respect to the ownership of the individual apartments in the building, I deem it appropriate to direct the Bank to serve a copy of any further proceedings or order, which is legally necessary to be WPC 11640/19 9 served on the 3[rd] respondent, on the petitioner Association also, so as to keep them aware of such action, thus enabling them to invoke their remedies, as may be available to them in law. This writ petition is thus disposed of. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 11640/19 10 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 A COPY OF THE AGREEMENT DATED 30.4.2007 EXECUTED BETWEEN THIRD RESPONDENT AND MUHAMMED FAFI SAIDH EXHIBIT P2 A TRUE COPY OF THE ONE SUCH AGREEMENT FOR SALE AND CONSTRUCTION DATED 23.3.2012 EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 5.7.20-2013 ISSUED BY THE FIRST RESPONDENT EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 2.12.2012 ISSUED BY THE SECOND RESPONDENT EXHIBIT P5 A TRUE COPY OF THE AGREEMENT DATED 20.6.2017 EXECUTED BETWEEN THE PETITIONER AND THE THIRD RESPONDENT EXHIBIT P6 A TRUE COPY OF THE POSSESSION NOTICE DATED 6.3.2018 ISSUED BY THE FIRST RESPONDENT