High Court of KeralaDivision Bench2023-09-08Writ petition dismissed

Marykutty Abraham @ Vincy George v. Union of India, George P. Chandy, Bank of Baroda (W.P.(C.) No. 14989/2022)

Case / Petition Number:W.P.(C.) No. 14989/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
C.S. Sudha
Judgment Date: 2023-09-08
Court Decision / Holding: Writ petition dismissed. The Kerala High Court held that there is no merit in the petition, noted that SARFAESI proceedings have been initiated, and emphasized that the appropriate remedy is the pending appeal under Section 17 of SARFAESI, especially in the absence of copies of requisite notices. It also noted ongoing Family Court proceedings and did not interfere with the bank’s actions at this stage.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Marykutty Abraham @ Vincy George

Respondents

Union of India, Ministry of Finance, Department of Financial Services
George P. Chandy
Bank of Baroda, Kottayam Branch

Legal Representation & Advocates

Counsels for Petitioners

• Leo Lukose
• Enoch David Simon
• Joel S. Sree Dev
• Rony Jose
• Cimil Cherian
• Kottalil Suzanne Kurian

Counsels for Respondents

• ASGI
• Sri C.S. Manilal
• Sri Nidheesh
• Sri Saijo Hassan
• Sri Benoj C Augustine
• Sri Rafeeq V.K.
• Sri K.N. Muhammed Thanveer
• Sri Bincy Job

Case Synopsis & Summary

The petitioner, Marykutty Abraham @ Vincy George, wife of George P. Chandy, approached the Kerala High Court with a writ petition challenging the ongoing SARFAESI proceedings and seeking protection of residence under the Protection of Women from Domestic Violence Act, 2005. Matrimonial discord since 1991 and a mortgage by the husband led to eviction attempts by the bank; the petitioner had already obtained aDV protection in 2018 restraining dispossession from the shared household. She sought mandamus orders restraining the bank from dispossessing her and directing initiation of SARFAESI proceedings with notice to her. The respondents argued that Section 35 of the SARFAESI Act has overriding effect and that the writ petition is not maintainable because the proper remedy is an appeal under Section 17 of SARFAESI. They also asserted absence of copies of the required notices under sections 13(1), 13(4) and 14, and noted that a pending appeal exists (Crl. Appeal No. 32/2021). The Court noted that SARFAESI proceedings have been initiated and that the family dispute is being handled by the Family Court; it cautioned that interim remedies should be sought through proper channels. Ultimately, the writ petition was dismissed for lack of merit, emphasizing that the pending appeal is the appropriate remedy and that the petition does not establish grounds to interfere with SARFAESI actions at this stage.

Provisions of Law Cited

Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005)Section 23(2) of the Protection of Women from Domestic Violence Act, 2005Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)Section 13(1)Section 13(4)Section 14Section 17Section 35 of the SARFAESI Act

Legal Doctrines & Maxims

Doctrine of overriding effect of statute (as invoked for SARFAESI Section 35)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner sought a writ of mandamus to prevent dispossession from the shared household and to require initiation of SARFAESI proceedings with notice to the petitioner, arguing ongoing marital discord, protection under the DV Act, and the risk of eviction by collusion between the husband and the bank. She highlighted prior protective orders and the lack of notice under the SARFAESI regime, urging the Court to safeguard the residence and oppose coercive actions until the Family Court’s dissolution proceedings or until proper notice and due process in SARFAESI are observed.

Contentions of Respondents

The bank and respondents contended that SARFAESI Section 35 has overriding effect and that the petition is not maintainable; they pointed out the absence of copies of notices under sections 13(1), 13(4), and 14, and asserted that the remedy lies in filing an appeal under Section 17 of SARFAESI. They relied on jurisprudence granting procedural remedies through SARFAESI appeals and argued that the writ court should refrain from interfering with ongoing bank proceedings when due process has not been shown to be defective.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Balakrishna Rama Tarle and Another v. Phoenix ARC Private Limited and Others	2023(1) SCC 662	Mentioned Only	The court cited this Supreme Court decision to support the proposition that the remedy for SARFAESI proceedings is to file an appeal under Section 17; the reference functions as persuasive authority rather than a direct application of its reasoning.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Marykutty Abraham @ Vincy George v. Union of India, George P. Chandy, Bank of Baroda (W.P.(C.) No. 14989/2022) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 8[TH] DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945** ## **WP(C) NO. 14989 OF 2022** ## **PETITIONER:** **MARYKUTTY ABRAHAM @ VINCY GEORGE AGED 49 YEARS, W/O. GEORGE P. CHANDY, PANAMPUNNAYIL HOUSE, ARUTHOOTTY, KOTTAYAM P.O., KOTTAYAM VILLAGE, KOTTAYAM, PIN – 686001 BY ADVS. LEO LUKOSE ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE CIMIL CHERIAN KOTTALIL SUZANNE KURIAN** ## **RESPONDENTS:** **1 UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSAD MARG, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN – 110001 2 GEORGE P. CHANDY, S/O. LATE P. C. GEORGE, PANAMPUNNAYIL HOUSE, ARUTHOOTTY, KOTTAYAM P.O., KOTTAYAM VILLAGE, KOTTAYAM. NOW RESIDING AT C.JS HARITHA HOMS, LASDON PARK, VARISSERY,** W.P.(C.) No. 14989/2022 2 **MARIATHURUTHU P.O., AYMANAM, KOTTAYAM, PIN – 686017** **3 BANK OF BARODA, KOTTAYAM BRANCH, REPRESENTED BY ITS BANK MANAGER, BAKER JUNCTION, M. C. ROAD, KOTTAYAM., PIN – 686001** **R1 BY ASGI R2 BY ADVS.SRI.C.S.MANILAL S.NIDHEESH R3 BY SRI. SAIJO HASSAN. SC SRI. BENOJ C AUGUSTIN SRI. RAFEEK. V.K. SRI.K.N.MUHAMMED THANVEER SRI.BINCY JOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.) No. 14989/2022 3 ## JUDGMENT ## AMIT RAWAL, J. The present writ petition has been filed by the wife/petitioner against the husband/second respondent on the ground that owing to the matrimonial discord and differences in the marriage performed in 1991, the husband filed a divorce petition and mortgaged the property in which the wife is living and intentionally defaulted in making the payments to the bank, which resulted into an action under the SARFAESI Act. The petitioner had already filed a petition under the Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act, 2005') and sought the protection of the residence, which was disposed off vide order dated 07.12.2018 in C.M.P. No. 6974/2018 by the Judicial First Class Magistrate Court- III, Kottayam restraining the 2[nd] respondent from dispossessing petitioner from the shared household. Thereafter, the petitioner submitted C.M.P. No.252/2020 in M.C.No.31/2019 before the W.P.(C.) No. 14989/2022 4 Judicial First Class Magistrate Court- III, Kottayam for a direction to the respondent bank not to disturb the peaceful possession of the shared household in case of default of payment of the loan by the husband. The Court below vide order dated 25.01.2021, Ext.P2, dismissed the same. Aggrieved of the same, petitioner preferred Crl. Appeal No. 32/2021, which is pending before the Sessions Court, Kottayam. However, the husband colluded with the bank and is hell-bent to seek the eviction of the wife by adopting all possible means under the sky. It is in that aspect, the petitioner has approached this Court with the following prayers:- _“i. Issue a writ of mandamus or other appropriate writ, order or direction directing the 3[rd] respondent not to dispossess the petitioner from the building bearing No. 783 of Ward No. 49 in Kottayam Municipality, situated in 17 ¼ cents of property comprised in Sy. Nos. 90/2, 90/3 in Block No. 124 in Kottayam District by initiating proceedings under the SARFAESI Act._ _ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the 3[rd] respondent to initiate proceedings under the SARFAESI Act with respect to the building bearing No. 783 of Ward No. 49 in Kottayam Municipality, situated_ W.P.(C.) No. 14989/2022 5 _in 17 ¼ cents of property comprised in Sy. Nos. 90/2, 90/3 in Block No. 124 in Kottayam District, only with notice to the petitioner.”_ 2. On the other hand, the learned counsel appearing on behalf of the second respondent submitted that Section 35 of the SARFAESI Act has an overriding of effect and its implementation and applicability cannot be curtailed in the manner and mode as sought to be projected. No copy of the notice or proceedings under Sections 13(1) or 13(4) or 14 of the SARFAESI Act have been placed on record. Even otherwise, the writ petition is not maintainable, for, the remedy, if any, in respect of the proceedings initiated under the SARFAESI Act would be to file an appeal under Section 17 of the SARFAESI Act as per the judgment of the **Balakrishna Rama Tarle and Another** v. Supreme Court in **Phoenix ARC Private Limited and Others [2023(1) SCC 662]** . 3. We have heard the learned counsel for the parties and appraised the paper book. W.P.(C.) No. 14989/2022 6 4. During the course of the hearing, the counsel for the petitioner informed that the proceedings under the SARFAESI Act have actually been initiated. It is intriguing that the parties at this stage of their life are at loggerheads and indulging into insinuations, which we do not want to comment in the view of the fact that the Family Court has seized off the matter, pertaining to dissolution of the marriage. It is also submitted that they have one daughter, who is already married. 5. In a proceeding under Section 23(2) of the Act, 2005, the Judicial First Class Magistrate, vide order dated 07.12.2018 restrained the husband from committing any acts of physical and mental violence against the wife and also from dispossessing the wife from the shared household. When notice from the bank was received, another application C.M.P. No. 252/2020 was preferred, which has been dismissed. Concededly, an appeal bearing No.32/2021 is pending before the Sessions Court, Kottayam. Petitioner, if so advised should have sought interim stay in the W.P.(C.) No. 14989/2022 7 pending appeal, but not in this manner and mode, particularly, when there is no copy of the notice or the proceedings under Section 13 of the SARFAESI Act. In view of the abovementioned reasons, we do not find any merit in the writ petition, the same is dismissed. Sd/- AMIT RAWAL JUDGE Sd/C.S. SUDHA JUDGE DCS/07.09.2023 W.P.(C.) No. 14989/2022 8 ## **APPENDIX** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 07.12.2018 IN C.M.P. NO. 6974/2018 ON THE FILES OF THE JUDICIAL FIRST-CLASS MAGISTRATE COURT III, KOTTAYAM.** **EXHIBIT P2** **A TRUE COPY OF THE ORDER DATED 25.01.2021 IN C.M.P. NO. 252/2020 IN M.C. NO. 31/2019 ON THE FILES OF THE JUDICIAL FIRST-CLASS MAGISTRATE COURT III, KOTTAYAM.**