High Court of KeralaSingle Judge2024-05-24Dismissed

Kumari Rajani S.R. and Ajith G. v. Indian Bank, Thiruvananthapuram Branch; The Special Tahsildar, NHAI Neyyattinkara Taluk and Others

Case / Petition Number:WP(C) No.3534 Of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-05-24
Court Decision / Holding: The writ petition is not maintainable in view of the statutory remedy provided by SARFAESI; the petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

KUMARI RAJANI S.R
AJITH. G

Respondents

INDIAN BANK THIRUVANANTHAPURAM BRANCH M.G. ROAD, THIRUVANANTHAPURAM
AUTHORISED OFFICER INDIAN BANK, THIRUVANANTHAPURAM BRANCH
THE SPECIAL TAHSILDAR, NHAI NEYYATTINKARA TALUK

Legal Representation & Advocates

Counsels for Petitioners

• Adv Harish Gopinath

Counsels for Respondents

• Sri K.V. Rajeswari (for Respondents 1 & 2)
• Sri Sreejith V.S (GOVERNMENT PLEADER)

Case Synopsis & Summary

Petitioners Kumari Rajani S.R. and Ajith G. approached this Court seeking to block the enforcement actions under the SARFAESI Act following default on an overdraft facility extended by the 1st respondent bank. The account was said to have been maintained properly until 2020, after which defaults occurred, triggering proceedings under SARFAESI leading to Ext P5 notice issued by an Advocate Commissioner, and threatened possession of the security interest property to enable sale for recovery. The petitioners claim that the compensation to be paid by the 3rd respondent (NHAI) for the Vizhinjam-Navaikkulam Road project could or should be redirected; they sought a mandamus restraining the bank from taking possession and, in a related prayer, urged that the compensation payable to petitioners in connection with the acquisition would be directed to respondents 1 and 2. They contend there is no need for a writ where a comprehensive statutory remedy through the Debts Recovery Tribunal exists and that the petition should be entertained only when extraordinary circumstances are present. At the hearing, Standing Counsel for respondents argued that the petition was misconceived because the loan account was not maintained; the petition is barred by the SARFAESI Act, and an efficacious remedy lies before the Tribunal. Relying on Supreme Court and Kerala High Court precedents, the court held that writ jurisdiction is not available against SARFAESI proceedings and dismissed the petition.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)Section 14 of SARFAESI ActSection 13(2) of SARFAESI ActConstitution of India, Article 226

Legal Doctrines & Maxims

No writ would lie against SARFAESI proceedings
Efficacious alternate remedy
Statutory remedy under SARFAESI Act; Tribunal is competent to adjudicate
Article 226 powers exercisable only in extraordinary circumstances where statutory remedy exists

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenge the SARFAESI proceedings, seeking a mandamus restraining the Bank from taking possession pursuant to Ext P5/14 notices; they contend they have no objection to the 3rd respondent paying compensation for the Vizhinjam-Navaikkulam Road to the respondents, and seek relief framed to ensure compensation flows appropriately; they assert that where an efficacious alternate remedy exists (DRT), the writ petition is not maintainable, and that translations of vernacular documents can be dispensed with until directed; they rely on established jurisprudence that SARFAESI proceedings attract no writ under Article 226 in the absence of extraordinary circumstances.

Contentions of Respondents

The respondents submit that the loan account was not maintained by the petitioners despite repeated requests; Ext P5/notice under SARFAESI is valid; petitioners have an efficacious remedy before the Debts Recovery Tribunal and cannot invoke writ jurisdiction; the petition is liable to be dismissed.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
United Bank of India v. Satyawati Tondon and others	[(2010) 8 SCC 110]	Positive	No writ petition shall be entertained against SARFAESI proceedings due to the efficacious statutory remedy.
Authorised Officer, State Bank of Travancore v. Mathew K.C.	[2018 (1) KLT 784]	Positive	No writ petition would lie against SARFAESI proceedings in view of the statutory remedy.
Anilkumar v. State Bank of India	[2020 (2) KLT 756]	Positive	Division Bench declined to exercise Article 226 jurisdiction against SARFAESI proceedings; supports non-interference.
South Indian Bank Limited v. Naveen Mathew Philip	[2023 (4) KLT 29]	Positive	Apex Court held Article 226 to be exercised only in extraordinary circumstances given statutory redressal mechanism.
Jayakrishnan A. v. Union Bank of India and others	W.P.(C) No.30803/2023	Positive	Writ challenge to SARFAESI proceedings not maintainable where Tribunal provides an effective remedy.

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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`** ## **`FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946`** ## **`WP(C) NO. 3534 OF 2024`** ## **`PETITIONERS:`** ``` 1KUMARI RAJANI S.R AGED 52 YEARS W/O. AJITH G., TC 18/8(16), ANJALI, OPP. KALLARMADAM THIRUVANANTHAPURAM, PIN - 695006 2AJITH. G AGED 52 YEARS S/O. M. GOPALAKRISHNAN NAIR, TC 18/8(16), ANJALI, OPP. KALLARMADAM THIRUVANANTHAPURAM, PIN – 695006 ``` ## **`BY ADV HARISH GOPINATH`** ## **`RESPONDENTS:`** - **`1 INDIAN BANK THIRUVANANTHAPURAM BRANCH M.G. ROAD, THIRUVANANTHAPURAM REPRESENTED BY ITS CHIEF MANAGER., PIN - 695001`** - **`2 AUTHORISED OFFICER INDIAN BANK, THIRUVANANTHAPURAM BRANCH M.G. ROAD, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE SPECIAL TAHSILDAR, NHAI NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT, PIN – 695121`** ## **`SRI.K.V.RAJESWARI-R1 & R2 SRI.SREEJITH V.S-GOVERNMENT PLEADER`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.3534 Of 2024 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 24[th] day of May, 2024 The petitioners availed financial assistance from the 1[st] respondent-Bank by way of Overdraft facility. According to the petitioners, the account was maintained properly till 2020 and there occurred certain defaults subsequently. The respondents initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Thereupon, the petitioners have approached this Court seeking the following reliefs:- “i. Issue a writ of mandamus or any other appropriate writ, order or direction of the nature of mandamus directing respondents 1 and 2 not to take possession of the security interest pursuant to Exhibit P6 notice in view of the fact that the petitioner have no objection whatsoever in respondents 1 and 2 receiving the compensation payable by the 3[rd] respondent in respect of the acquisition of the security interest property and other properties of the petitioners for the laying of the Vizhinjam-Navaikkulam Road. ii. Issue a writ of mandamus or any other appropriate writ, order or direction of the nature of ``` WP(C) No.3534 Of 2024 ``` ``` 3 ``` mandamus directing the 3[rd] respondent to pay the compensation amount payable to the petitioners in respect of in respect of the acquisition of the security interest property and other properties of the petitioners for the laying of the Vizhinjam-Navaikkulam Roadto respondents 1 and 2 iii. Translation of vernacular documents produced as exhibits in this case may be dispensed with as the same will be produced as and when directed by this Hon'ble Court;”. 2. When this writ petition came up for admission on 29.01.2024, this Court passed an interim order directing the petitioner to pay an amount of 7 lakhs within a period of₹ one month. In spite of the expiry of due date, the petitioners have not paid the amount so far. 3. Standing Counsel entered appearance on behalf of respondents 1 and 2 and resisted the writ petition. The Standing Counsel submitted that in spite of repeated requests made by the Bank, the petitioners did not maintain the loan account. The petitioners are challenging Ext.P5 notice issued by the Advocate Commissioner, pursuant to an ## `WP(C) No.3534 Of 2024` ``` 4 ``` order of the Chief Judicial Magistrate Court, Thiruvananthapuram, under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioners have an efficacious alternate remedy against Ext.P5 notice, before the Debts Recovery Tribunal. Therefore, the writ petition is liable to be dismissed. 4. Heard. 5. The petitioners are aggrieved by proceedings initiated by the Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and are specifically seeking to direct the respondents not to take possession of the security interest pursuant to Ext.P5 notice. If the petitioners are aggrieved by Ext.P5 notice, the petitioners have to approach the appropriate Tribunal. ``` WP(C) No.3534 Of 2024 ``` ``` 5 ``` 6. It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 at the instance of a defaulter since the statute provides for an efficacious alternate remedy. 7. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of ``` WP(C) No.3534 Of 2024 ``` ``` 6 ``` Security Interest Act, 2002 in view of the statutory remedy available under the said Act. 8. 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. 9. 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. 10. 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 ``` WP(C) No.3534 Of 2024 ``` ``` 7 ``` 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. 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.3534 Of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 3534/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE NOTICE DATED 11.10.2022ISSUEDBYTHE2ND RESPONDENT UNDER SECTION 13(2) OF THE SARFAESI ACT Exhibit P2TRUE COPY OF THE PAPER PUBLICATION CARRIED OUT BY THE PETITIONERS FOR THE SALE OF THE SECURITY INTEREST PROPERTY DATED 04/09/2022 IN THE NEW INDIAN EXPRESS NEWSPAPER Exhibit P3TRUE COPY OF THE RECEIPT DATED 05.06.2023ISSUEDBYTHE3RD RESPONDENT TO THE PETITIONERS IN RESPECT OF THE DOCUMENTS PERTAINING TO THE PROPERTIES Exhibit P4TRUE COPY OF THE LETTER DATED 15/01/2023 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT Exhibit P5TRUE COPY OF THE NOTICE DATED 19.01.2024ISSUEDBYADVOCATE COMMISSIONER TO THE PETITIONERS Exhibit P6TRUE COPY OF THE LETTER DATED 26.05.2023 ISSUED BY THE BRANCH MANAGER OF THE 1ST RESPONDENT TO THE 3RD RESPONDENT ```