Kuriachan M.C. v. Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 7[TH] DAY OF AUGUST 2023 / 16TH SRAVANA, 1945** **WP(C) NO. 17647 OF 2023** ## **PETITIONER/S:** KURIACHAN M.C., AGED 59 YEARS 17/78(2) MOUNT VIEW, CHITTUR ROAD, MANAPPULLIKKAVU, KUNNATHURMEDU P.O., PALAKKAD, PIN - 678013 BY ADV B.SABITHA (DESOM) ## **RESPONDENT/S:** 1 CANARA BANK, RERESENTED BY ITS AUTHORIZED OFFICER, CANARA BANK, BIG BAZAR BRANCH, PALAKKAD, PIN - 678014 2 THE MANAGER, CANARA BANK, BIG BAZAR BRANCH, PALAKKAD, PIN - 678014 ## **OTHER PRESENT:** SRI M GOPIKRISHNAN NAMBIAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 17647 OF 2023 2 ## **JUDGMENT** The writ petition is filed to direct the respondents to withhold the operation of the recovery proceedings initiated against the petitioner under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, 'Act') till the disposal of RP No.62/2022 on the file of the Kerala State Consumer District Disputes Redressal Commission, Palakkad. 2. The petitioner's case is that he is an Advocate by profession. He had availed a housing loan from the 2[nd] respondent bank by creating an equitable mortgage by deposit of title deeds. The bank has initiated proceedings under the Act and is threatening to take physical possession of the secured asset. Hence, the petitioner filed CC No.70/2021 against the respondent before the Consumer Disputes Redressal Commission, Palakkad. The respondent was set ex-parte and Ext.P8 order was passed. Although the respondent filed an application to WP(C) NO. 17647 OF 2023 3 set aside the ex-parte order, the same was rejected by the Commission by Ext.P9 order. Aggrieved by Ext.P9 order, the respondent has filed RP No.62/2022 before the Consumer Redressal Commission, Palakkad and the same is pending consideration. During the pendency of the above revision petition, the respondents have initiated proceedings under the Act. The entire proceedings initiated by the respondents are vitiated and bad in the eyes of law. Hence, the entire proceedings may be directed to be withheld till a decision is taken on RP No.62/2022. Hence, the writ petition. 3. Heard; Smt.B.Sabitha, the learned Counsel appearing for the petitioner and Sri.Gopikrishnan Nambiar, the learned Counsel appearing for the respondents. 4. The point is whether further proceedings in RP No.62/2022 has to be stayed. 5. The petitioner asserts that, challenging the recovery proceedings, the petitioner has preferred CC No.70/2021 before the Consumer Disputes Redressal WP(C) NO. 17647 OF 2023 4 Commission, Palakkad. Indisputably, the Commission has not passed any order interdicting the respondents from proceeding with the recovery proceedings. 6. Even though the respondent was set ex-parte before the Commission, the respondent later filed an application to set aside the ex-parte order, which was rejected by the Commission. Then, the respondent filed RP No.62/2022 before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, and by order dated 19.09.2022, further proceedings before the Commission have been stayed. 7. The petitioner prays that the SARFAESI proceedings may be deferred, till a decision is taken on RP No.62/2022. The said request is untenable in view of Section 34 of the Act, which prohibits the Courts/Forums from interdicting proceedings which are to be adjudicated by the Debt Recovery Tribunal/Debt Recovery Appellate Tribunal. 8. Furthermore, it is up to the petitioner to have approached the Commission and sought for stay of the WP(C) NO. 17647 OF 2023 5 the recovery proceedings, which has not been done. Thus, I am of the definite view that the prayer in the writ petition, to stay the recovery proceedings till a decision is taken on R.P.No.62/2022 is untenable. Nonetheless, I leave it to the petitioner to work out his remedies, in accordance with law, if any available. 9. 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, has categorically declared that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act, in writ proceedings under Article 226 of the Constitution of India. 10. On an analysis of the pleadings and materials on record and appreciating the rival submissions made across the Bar, and that the respondents are not willing to extend any installment facility to the petitioner, I do not find any extraordinary circumstances to entertain the WP(C) NO. 17647 OF 2023 6 writ petition by exercising the discretionary powers of this Court under Article 226 of the Constitution of India. Resultantly, the writ petition is dismissed, without prejudice to the right of the petitioner to work out his remedies in accordance with law. **Sd/C.S.DIAS JUDGE** rkc/07.08.23 WP(C) NO. 17647 OF 2023 7 ## **APPENDIX OF WP(C) 17647/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 09.08.2017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT - Exhibit P1A TRUE COPY OF THE COMPLAINT DATED 09.08.2017 SUBMITTED BY THE PETITIONER TO THE REGIONAL MANAGER Exhibit P2 TRUE COPY OF THE COMPLAINT DATED 05.12.2017 BY THE PETITIONER TO THE GENERAL MANAGER OF THE SAID BANK AT THIRUVANANTHAPURAM Exhibit P3 TRUE COPY OF THE REPLY BY THE DIVISIONAL MANAGER DATED 27.12.2017 TO THE PETITIONER Exhibit P3A TRUE COPY OF THE BANK STATEMENT ISSUED BY THE 2ND RESPONDENT PERTAINING TO THE PETITIONER FROM 27.01.2004 TO 15.05.2023 Exhibit P4 TRUE COPY OF THE COMPLAINT BEFORE THE CHIEF MANAGER DATED 19.02.2018 Exhibit P5 TRUE COPY OF THE LETTER BY THE DIVISIONAL MANAGER DATED 26.02.2018 Exhibit P6 TRUE COPY OF THE REPLY LETTER ISSUED BY THE CHIEF MANAGER OF THE 2ND RESPONDENT BANK DATED 05.03.2018 Exhibit P7 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD IN C.C NO. 70/21 DATED 29.03.2021 Exhibit P8 THE TRUE COPY OF THE EX-PARTE ORDER PASSED BY THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD DATED 09.12.2021 WP(C) NO. 17647 OF 2023 8 Exhibit P9 THE TRUE COPY OF THE PETITION TO SET ASIDE THE EX-PARTE ORDER FILED BY THE RESPONDENTS DATED 18.05.2022 Exhibit 10 12. THE TRUE COPY OF THE VERSION FILED BY THE 2ND RESPONDENT BANK BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD IN CC NO. 70 OF 2021 DATED 28.05.2022 Exhibit10A THE TRUE COPY OF THE REVISION PETITION FILED BY THE RESPONDENTS BANK BEFORE THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION AS RP NO. 62/2022 Exhibit 11 TRUE COPY OF 13(2) NOTICE DATED 10.1.2023 ISSUED BY THE RESPONDENTS TO THE PETITIONER