High Court of KeralaSingle JudgeWrit petition dismissed; petitioner may seek re...

Jijin J.S. v Union Bank of India

Case / Petition Number:WP(C) No. 20345 of 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2023-06-26
Court Decision / Holding
Writ petition dismissed; petitioner may approach bank with a concrete proposal or approach the Debt Recovery Tribunal under Sec.17; if a proposal is submitted within one week, the competent authority shall consider it after hearing.
Final Disposition
Writ petition dismissed; petitioner may seek relief through statutory remedies under SARFAESI or DRT.

Parties to the Case

Appellants / Petitioners

  • Jijin J.S.

Respondents

  • Union Bank of India
  • Union Bank of India, Neyyattinkara Branch

Legal Representation & Advocates

Counsels for Petitioners

  • • Suman Chakravarthy
  • • Sandeep T. George

Counsels for Respondents

  • • C. Muralikrishnan
  • • A.S.P Kurup
  • • Sadchith P. Kurup
  • • C. P. Anil Raj
  • • Siva Suresh
  • • Reshma Raj

Case Synopsis & Summary

This writ petition challenges two notices: Ext P2, a possession notice against item No.2 property, and Ext P3, an order of the Chief Judicial Magistrate appointing an Advocate Commissioner to take possession of item No.2. The petitioner Jijin J.S., who availed a term loan by creating an equitable mortgage with the second respondent bank, argues that the bank has proceeded against two properties in a single drive while item No.1 had already been subjected to Ext P1 notice and a pending auction. He asserts that this simultaneous action is high-handed and unfair, and violates the due process and the statutory remedies under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI). The respondents counter that Ext P1 disclosed a true position: item No.1 was offered for auction with a reserve price of Rs 79,25,000 to recover Rs 1,34,04,371.64; because of the shortfall, the bank proceeded against item No.2. They submit Ext P3 is appealable under Sec 17 of the Act, and that the writ petition should be dismissed in light of the alternative remedy. The petition was heard; the learned counsel for both sides relied on a recent Supreme Court decision in South Indian Bank Ltd v. Naveen Mathew Philip, which held that High Courts generally should not interfere with SARFAESI proceedings. The judge ultimately held there is no legal impediment to proceeding against item No.2, but granted a pathway: the petitioner may submit a concrete proposal to the bank or approach the DRT under Sec.17; if a proposal is received within a week, it shall be considered after hearing, and the writ petition is dismissed.

Provisions of Law Cited

Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

Jijin J.S. contends that Ext P2 and Ext P3 proceedings against item No.2, while item No.1 is already under Ext P1, amount to high-handed action and violate principles of due process. He is willing to negotiate through a private sale of item No.1 and seeks deferral of Ext P3; he asks the court to exercise writ jurisdiction only in extraordinary circumstances and to allow available statutory remedies under SARFAESI (Sec.17) if aggrieved.

Contentions of Respondents

The bank submits Ext P1 shows item No.1 was offered for auction with reserve price Rs 79,25,000 to recover Rs 1,34,04,371.64; due to shortfall, they proceeded against item No.2. Ext P3 is an appealable order under Sec.17 of SARFAESI; there is an adequate remedy outside writ jurisdiction, so the writ petition should be dismissed.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
South Indian Bank Ltd v. Naveen Mathew Philip2023 LiveLaw (SC) 320PositiveSC held that High Courts should not interfere with SARFAESI proceedings except in extraordinary circumstances; the judgment is cited to support the principle that writ jurisdiction should not derail such actions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 WP(C) No.20345 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 ``` ``` WP(C) NO. 20345 OF 2023 ``` ## **`PETITIONER/S:`** ``` JIJIN.J.S, AGED 27 YEARS S/O.SHEELA, PROPRIETOR, M/S.BLACKBERRY ASSOCIATES, CHRIST NIVAS, MAMKOOTTAM, THIRUPURAM.P.O., THIRUVANANTHAPURAM-695133 BY ADVS. SUMAN CHAKRAVARTHY SANDEEP T.GEORGE ``` ## **`RESPONDENT/S:`** ``` 1UNION BANK OF INDIA, NEYYATTINKARA BRANCH, THIRUVANANTHAPURAM REPRESENTED BY ITS AUTHORISED OFFICER, PIN - 695121 2UNION BANK OF INDIA, NEYYATTINKARA BRANCH, NEYYATTINKARA SNDP UNION BUILDING, T.B.JUNCTION, NEYYATTINKARA.P.O., THIRUVANANTHAPURAM, PIN - 695121 BY ADVS. C.MURALIKRISHNAN ASP.KURUP SADCHITH.P.KURUP(K/1419/2002) C.P.ANIL RAJ(K/872/2007) SIVA SURESH(K/2688/2022) RESHMA RAJ(K/1150/2021) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WP(C) No.20345 of 2023 ## **C.S DIAS,J.** **--------------------------WP(C) No.20345 of 2023 ----------------------------Dated this the 26[th] day of June, 2023[ .]** ## **JUDGMENT** The writ petition is filed to quash Ext P2 possession notice issued by the first respondent and Ext P3 order passed by the Court of the Chief Judicial Magistrate, Thiruvananthapuram, in MC No.271/2023. 2. The petitioner’s case is that he had availed a term loan from the second respondent – Bank – by creating an equitable mortgage. There are two items of properties having an extent of 7.13 Ares and 8.47 Ares. The first respondent has already proceeded against item No.1 by Ext P1 notice. During the pendency of Ext P1 auction the have now proceedings, respondents 3 WP(C) No.20345 of 2023 proceeded against item No.2 residential building. Subsequently, by Ext P3 order, the jurisdictional Magistrate has appointed an Advocate Commissioner to take possession of item No.2 property. The action of the respondents in proceeding against item Nos. 1 and 2 properties, simultaneously, is high-handed and unreasonable. Hence, the writ petition. 3. The respondents have filed a counter affidavit, inter alia, denying the allegations in the writ petition. They have contended that Ext P1 notice gives a clear picture of the story. According to them, item No.1 was put up for public auction after fixing the reserve price at Rs.79,25,000/-, to realise the outstanding debt of Rs.1,34,04,371.64/-. Due to the difference in the outstanding and the reserve price, the respondents have 4 WP(C) No.20345 of 2023 decided to proceed against item No.2 property. The action of the respondents is not high-handed or unreasonable, as alleged in the writ petition. Moreover, Ext P3 order is appealable under Sec.17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, ‘Act’). In the light of the alternative statutory remedy, this Court may not entertain the writ petition. Hence, the writ petition may be dismissed. 4. Heard; Sri.Suman Chakravarthy, the learned counsel appearing for the petitioner and Sri.A.S.P Kurup, the learned counsel appearing for the respondents. 5 WP(C) No.20345 of 2023 5. The learned counsel appearing on both sides reiterated the contentions in the respective pleadings. However, Sri.Suman Chakravarthy submitted that the petitioner is prepared to approach the Bank and submit a proposal for conducting a private sale of item No.1 property. Hence, the respondents may be directed to defer further proceedings pursuant to Ext P3 order. 6. The Hon’ble Supreme Court in **South Indian Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw (SC) 320),** after adverting to a myriad of earlier judicial pronouncements of the subject-matter in this writ petition, has categorically declared that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act, in writ 6 WP(C) No.20345 of 2023 proceedings under Article 226 of the Constitution of India. 7. Having appreciated the pleadings and materials on record, and the rival submissions, I am of the definite view that there is no legal impediment in the respondents proceeding against item No.2 property as well, in view of the inadequacy of the sale price in the proposed sale. However, if the petitioner is aggrieved by Ext P3 order, necessarily, he has a statutory right to approach the Debt Recovery Tribunal under Sec.17 of the Act, and also to submit a concrete proposal before the respondents. Resultantly, the writ petition is dismissed without prejudice to the right of the petitioner to either approach the Bank with his concrete proposal or to approach the 7 WP(C) No.20345 of 2023 Debt Recovery Tribunal, in accordance with law. Nonetheless, if the petitioner submits a proposal within one week from the date of receipt of a copy of this writ petition, the competent authority of the respondents shall compassionately consider such proposal, after affording the petitioner an opportunity of being heard. sks/26.6.2023 **C.S.DIAS, JUDGE** 8 WP(C) No.20345 of 2023 ## **`APPENDIX OF WP(C) 20345/2023`** ``` PETITIONER EXHIBITS Exhibit-P1A TRUE COPY OF THE E-AUCTION NOTICE WITH REGARD TO 7.13 ARES OF PROPERTY DATED 24.05.2023 Exhibit-P2A TRUE COPY OF THE POSSESSION NOTICE WITH REGARD TO 8.47 ARES OF PROPERTY WITH RESIDENTIAL BUILDING Exhibit-P3A TRUE COPY OF THE ORDER DATED 28.03.2023 IN M.C NO.271/2023 ```