High Court of KeralaSingle Judge2024-01-23Writ petition dismissed; not maintainable under...

Joby Furniture and Joby K.J. v. The Authorized Officer, Aluva Urban Co-operative Bank Ltd. No.1623 and Aluva Urban Co-operative Bank Ltd., Alangad Branch

Case / Petition Number:WP(C) No. 42852 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-01-23
Court Decision / Holding: Writ petition dismissed. The court held that a writ under Article 226 is not maintainable against SARFAESI proceedings where an effective remedy exists under the SARFAESI Act, citing established precedents, and declined to interfere with the statutory remedy.
Final Disposition: Writ petition dismissed; not maintainable under SARFAESI Act; Alternative remedy before Tribunal remains available.

Parties to the Case

Appellants / Petitioners

Joby Furniture
Joby K.J.

Respondents

The Authorized Officer, Aluva Urban Co-operative Bank Ltd. No.1623, Marked Road, Aluva, PIN-683101
Aluva Urban Co-operative Bank Ltd. No.1623, Alangad Branch, PIN-683101

Legal Representation & Advocates

Counsels for Petitioners

• Jaison Joseph
• M.N. Sanjith
• Jimmy Joseph
• Veena Vallikantan

Counsels for Respondents

• Leela R.

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution of India was filed by Joby Furniture and Joby K.J. challenging SARFAESI Act proceedings initiated by the 2nd respondent bank for recovery of a loan availed in 2013. The loan, of ₹25,00,000, was secured by mortgage of the petitioners’ property. Default led to the bank declaring the account as NPA and issuing notices under sections 13(2) and 13(4) of the SARFAESI Act, followed by ex parte orders for possession and appointment of an Advocate Commissioner. The petitioners claim partial repayments: ₹7,14,000 on 29.03.2013 and ₹32,000 on 30.03.2023, and later ₹1,38,000 on 15.12.2023; they state the outstanding dues (about ₹27,00,000) cannot be cleared in one lump sum and seek permission to repay in instalments (about 25 instalments). They argue that SARFAESI proceedings should be kept in abeyance to allow instalment payments, and question the bank’s readiness to accept such terms. The respondents submit that the loan was secured on property later alienated to multiple parties and allege wrongdoing by the petitioners, asserting no instalment facility should be granted. The court cites settled law that writs do not lie against SARFAESI proceedings where a statutory remedy exists, referencing Satyawati Tondon and subsequent judgments, and dismisses the petition as not maintainable, emphasizing the efficacious remedy under the Act. The decision reflects the prevailing stance that Article 226 relief is unavailable in such SARFAESI matters when a dedicated quasi-judicial forum exists.

Provisions of Law Cited

Section 13(2) of SARFAESI ActSection 13(4) of SARFAESI ActSection 14(1) of SARFAESI Act

Legal Doctrines & Maxims

No writ would lie against SARFAESI proceedings; efficacious alternate remedy under SARFAESI Act.
Writ petitions under Article 226 should be entertained only in extraordinary circumstances where there is no efficacious remedy.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that though the loan was secured by mortgage of their property, they had already paid portions of the due amounts and had become amenable to settling the balance in instalments. They argued that they cannot clear the entire liability in one lump sum due to business losses and sought permission to repay in instalments (about 25 installments) while staying SARFAESI proceedings. They asserted that the bank had previously paused actions but later insisted on possession, and that a writ petition is a suitable remedy if there is an impediment to justice under the SARFAESI framework.

Contentions of Respondents

The bank asserted that the loan was secured against a property that had been alienated to multiple persons, and that the petitioners’ conduct evinced malfeasance. They maintained there is no basis for granting instalment facilities and pressed forward with SARFAESI measures, arguing the statutory remedy under the SARFAESI Act is efficacious and a writ petition cannot challenge such proceedings.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
United Bank of India v. Satyawati Tondon and others	(2010) 8 SCC 110	Positive	Held that no writ petition shall be entertained against SARFAESI proceedings, as the statute provides for an efficacious remedy.
Authorised Officer, State Bank of Travancore v. Mathew K.C.	2018 (1) KLT 784	Positive	Apex Court reiterated that no writ petition would lie against SARFAESI proceedings in view of the statutory remedy.
Satyawati Tondon	(supra)	Positive	Reinforces the proposition that writs are not maintainable against SARFAESI actions, following the cited apex court decision.
Anilkumar v. State Bank of India	2020 (2) KLT 756	Positive	Division Bench declined to exercise Article 226 jurisdiction against SARFAESI proceedings, aligning with the above doctrine.
South Indian Bank Limited v. Naveen Mathew Philip	2023 (4) KLT 29	Positive	SC held that constitutional intervention should be rare where a specialized mechanism exists for redressal.
Jayakrishnan A. v. Union Bank of India and others	W.P.(C) No.30803/2023	Positive	Writ challenging SARFAESI proceedings not maintainable since an efficacious remedy before the Tribunal is available.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ## **`WP(C) NO. 42852 OF 2023`** ## **`PETITIONERS:`** ``` 1JOBY FURNITURE AGED 51 YEARS REPRESENTED BY PROPRIETOR - JOBY K.J., KALAPARAMBATH HOUSE, ALANGAD P.O, THIRUVALOOR, PIN - 683511 2JOBY K.J. AGED 51 YEARS S/O. JOSE, KALAPARAMBATH HOUSE, ALANGAD P.O, THIRUVALOOR, PIN – 683511 ``` ``` BY ADVS. JAISON JOSEPH M.N.SANJITH JIMMY JOSEPH VEENA VALLIKANTHAN ``` ## **`RESPONDENTS:`** - **`1 THE AUTHORIZED OFFICER ALUVA URBAN CO-OPERATIVE BANK LTD. NO.1623, HAVING HEAD OFFICE, MARKED ROAD, ALUVA, PIN - 683101`** - **`2 ALUVA URBAN CO-OPERATIVE BANK LTD. NO.1623 ALANGAD BRANCH, PIN – 683101`** ``` BY ADV LEELA R. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.42852 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 23[rd] day of January, 2024 The petitioners had availed an Over Draft facility from the 2[nd] respondent for an amount of `25,00,000/- in the year 2013 and the property of the petitioners is mortgaged towards the loan. Since there was default, the 2[nd] responded declared the loan as NPA and thereafter the 1[st] respondent issued notices under Section 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 2. The petitioners state that the petitioners paid an amount of `7,14,000/- on 29.03.2013. The petitioners had also paid an amount of `32,000/- to the 2[nd] respondent on 30.03.2023. Subsequently, the 1[st] respondent filed an application as M.C.No.966 of 2022 before the Additional Chief ``` WP(C) NO.42852 OF 2023 3 ``` Judicial Magistrate’s Court, Ernakulam under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for taking possession of the secured assets. After the payment as per Ext.P1, the 1[st] respondent obtained an ex-parte order from the Court for taking possession of the property and had appointed a Commissioner. The Commissioner had issued Ext.P3 to the petitioners on 26.05.2023 demanding to handover the vacant possession of the secured asset. 3. The petitioners had approached the 2[nd] respondent and informed that they had already paid an amount of `7,36,000/- during March, 2023. The 2[nd] respondent had kept the proceedings in abeyance. Subsequently, on 15.12.2023, the Advocate Commissioner along with the Bank Officials had approached the petitioners for taking possession of the secured assets. As per the direction of the 2[nd] respondent, the petitioners deposited an amount of `1,38,000/- in the loan account. The 2[nd] respondent has informed that an amount of ``` WP(C) NO.42852 OF 2023 ``` ``` 4 ``` `27,00,000/- is due to the Bank. 4. The petitioners also state that the petitioners sustained a loss in the business. Hence, the petitioners are not in a position to clear the entire dues in lumpsum. The petitioners are ready to pay the entire amount due to the respondents in 25 instalments. But, as SARFAESI proceedings are initiated, the respondents are not willing to accept the amount in instalments. The 1[st] respondent has also intimated that the mortgaged properties will be sold after issuing sale notice by inviting tenders from the public. The mortgaged property is worth more than `75,00,000/- and sale of the entire property is not necessary to clear the liability. 5. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. The Standing Counsel submitted that the petitioners have availed the loan mortgaging a property, which stood already alienated to multiple persons. The Bank has been cheated ``` WP(C) NO.42852 OF 2023 ``` ``` 5 ``` by the petitioners. In the circumstances, the Bank is not inclined to grant any instalment facility to the petitioners. 6. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing the respondents. 7. 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. 8. 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. ``` WP(C) NO.42852 OF 2023 6 ``` 9. Following the judgment in _**Satyawati Tondon**_ (supra), a Division Bench of this Court in the judgment in _**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. 10. 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. 11. 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 ``` WP(C) NO.42852 OF 2023 ``` ``` 7 ``` constituted under the Act which is competent to adjudicate the issues of fact and law, including statutory violations. 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.42852 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 42852/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` THE TRUE PHOTOCOPY OF THE RECEIPT NO.3741 DATED 29.03.2023 ISSUED BY RESPONDENT NO.2 ``` ``` Exhibit P2THE TRUE PHOTOCOPY OF THE RECEIPT NO.3775 DATED 30.03.2023 ISSUED BY RESPONDENT NO.2 ``` ``` Exhibit P3 ``` ``` Exhibit P3THE TRUE PHOTOCOPY OF THE NOTICE DATED 26.05.2023 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONERS Exhibit P4TRUE COPY OF CHALLAN ISSUED BY RESPONDENT NO.2 DATED 15.12.2023 ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(a)THE TRUE COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER TO THE GENERAL MANAGER, ALWAYE URBAN CO-OPERATIVE BANK DATED 15.12.2023 ```