Mohan K. George v. The Authorized Officer, IFCI Limited; Interim Resolution Professional, Raju Palanikunnathil Kesavan; Abdul Rasheed; Heera Constructions (P) Ltd.; Concept Reality India Pvt. Ltd.; K.G. Cheriyan; K.G. Babukkutttan; Ammukutty George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BADAR** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **WP(C).No.3658 OF 2020(F)** ## **PETITIONER:** ## **MOHAN K.GEORGE,** **S/O.LATE K.C.GEORGE, RESIDING AT KERALSSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT REP BY HIS POWER OF ATTORNEY HOLDER ADV.A.PUSHPADAS, AGED 48 YEARS, S/O.LATE K.ANNAMALA, SHRAMIK LEGAL CONSULTANCY, T.C. NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENTS:** |**1**|**THE AUTHORIZED OFFICER,**| |---|---| ||**IFCI LIMITED, CONTINENTAL CHAMBERS, 2ND FLOOR, 142,**| ||**M.G.ROAD, NUNGAMBAKKAM, CHENNAI-600034, HAVING ITS**| ||**REGD.OFFICE AT IFCI TOWER, 61 NEHRU PLACE, NEW DELHI-**| ||**110019**| |**2**|**THE INTERIM RESOLUTION PROFESSIONAL,**| ||**MR.RAJU PALANIKUNNATHIL KESAVAN, GCNRA-9(33/11383 A),**| ||**KODAMASSERY LANE, CHALIKKAVATTOM, VENNALA.P.O.,**| ||**KOCHI-682028, KERALA, HAVING REG. NO.1BB1/IPA-001/IP-**| ||**P00801/2017-18/11356**| |**3**|**A.ABDUL RASHEED,**| ||**(MORTGAGOR AND CORPORATE GUARANTOR) HEERA, GOLF LINKS**| ||**ROAD, TKV NAGAR, KOWDIYAR, THIRUVANANTHAPURAM-695003**| |**4**|**M/S.HEERA CONSTRUCTIONS (P) LTD.,**| ||**HEERA PARK, M.P.APPAN ROAD, VAZHUTHACADU, TRIVANDRUM-**| ||**695014, REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**MR.ABDUL RASHEED @ A.R. BABU, RESIDING AT HEERA GOLD**| ||**LINKS ROAD, KOWDIAR, TRIVANDRUM-695003**| |**5**|**M/S.CONCEPT REALITY INDIA PVT.LTD.,**| ||**(MORTGAGOR AND CORPORATE GUARANTOR) HAVING ITS**| ||**REGISTERED OFFICE AT SHOP NO.28, BUILDING NO.3,**| ||**SEAWOOD HERITAGE, PLOT NO.50, SECTOR-4, KHARGHAR,**| **WP(C).No.3658 OF 2020(F)** **2** **NAVI MUMBAI, MAHARASHTRA-410210, REPRESENTED BY ITS MANAGIGN DIRECTOR, MR.S. CHANDRA BABU, AGED 52 YEARS, S/O.SURENDRAN, HAVING PERMANENT ADDRESS AT KARTHIK, KOTTATHALA.P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT-691507, PRESENTLY RESIDING AT MUMBAI A-1801, CONCEPT UNNATHAI, CHS LTD, PLOT NO.69, A.B,E AND F SECTOR-21, KHARGHAR,NAVI, MUMBAI-410210** **6 K.G.CHERIYAN S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANATHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV.C.T.THOMAS, AGED 60 YEARS, S/O.LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C. NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035** **7 K.G.BABUKUTTAN, AGED 60 YEARS, S/O.LATE K.C.GEORGE, RESIDING AT KERALSSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV.C.T.THOMAS, AGED 60 YEARS, S/O.LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035** **8 AMMUKUTTY GEORGE AGED 83 YEARS, W/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT REP BY HER POWER OF ATTORNEY HOLDER ADV.A PUSHPADAS, AGED 48 YEARS, S/O.LATE K.ANNAMALA, SHRAMIK LEGAL CONSULTANCY, T.C. NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035** **R1 BY ADV. SRI.P.A.GIREESH KUMAR R1 BY ADV. SRI.YASH THOMAS MANNULLY R2 BY ADV. SRI.P.V.VINOD (BENGALAM) R2 BY ADV. SMT.D.REETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.3658 OF 2020(F)** **3** ## **JUDGMENT** **Dated this the 19th day of November 2020** Heard the learned counsel for the petitioner at sufficient length of time. 2. Following are the prayers made in the instant writ petition. - _(i) To call for the records leading to Ext.P19._ _(ii) To issue a writ of certiorari setting aside Ext.P19._ _(iii) To issue a writ of mandamus directing the 1[st ] respondent to defer from proceeding in furtherance of Ext.P5 notice._ _(iv) To declare that the petitioner's and his co-owners' (Respondents 6 to 8) properties which are fraudulently mortgaged by respondents 3 to 5 cannot be proceeded against for the debts and liabilities of the 4[th] respondent._ _(v) To declare that as a moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 is in force the 1[st] respondent cannot proceed against the allegedly mortgaged properties of the petitioner and the other coowners (Respondents 6 to 8) until the proceedings before NCLT, Mumbai as CP(IB)-4447/MB/2018 is finally concluded._ 3. Learned counsel for the petitioner relies on the judgment of the Hon'ble Apex Court in the matter of **State Bank of India Vs. Ramakrishnan and Another** reported in **AIR 2018 SC 3876** . 4. It is thus clear that what is impugned in the instant writ petition is notice at Ext.P19 issued under Rule 8(6) of the Security **WP(C).No.3658 OF 2020(F)** **4** Interest (Enforcement) Rules, 2002. 5. Following are the observations of the Hon'ble Apex Court in ## the matter of **State Bank of Travancore & Another Vs. Mathew K.C** reported in **(2018) 3 SCC 85.** “5. ….... The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows: “15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569, that :- “6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, **WP(C).No.3658 OF 2020(F)** **5** filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.” 10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :- “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. **==> picture [78 x 7] intentionally omitted <==** **WP(C).No.3658 OF 2020(F)** **6** 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” 11. In Union Bank of India and another vs. Panchanan Subudhi, 2010 (15) SCC 552, further proceedings under Section 13(4) were stayed in the writ jurisdiction subject to deposit of Rs.10,00,000/- leading this Court to observe as follows : “7. In our view, the approach adopted by the High Court was clearly erroneous. When the respondent failed to abide by the terms of onetime settlement, there was no justification for the High Court to entertain the writ petition and that too by ignoring the fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act.” 12. The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782 observing: “23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)” 13. In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the ‘SARFAESI Act’ available to challenge by the aggrieved under Section 17 was an efficacious **WP(C).No.3658 OF 2020(F)** **7** remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing : “27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. 28…….In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.” 14. A similar view was taken in Punjab National Bank and another vs. Imperial Gift House and others, (2013) 14 SCC 622, observing:- “3. Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court. 4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the Bank.” 15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money **WP(C).No.3658 OF 2020(F)** **8** generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in , Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :- **WP(C).No.3658 OF 2020(F)** **9** “32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”” Since an alternate and most efficacious remedy is available in the matter, in view of the law laid down by the Hon'ble Apex Court in Mathew's case (supra), this writ petition cannot be entertained. The same is accordingly dismissed. **Sd/-** **A.M.BADAR** Nsd //true copy// PA to Judge **JUDGE** **WP(C).No.3658 OF 2020(F)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JOINT VENTURE AGREEMENT DATED 13.06.2008 EXECUTED BETWEEN THE PETITIONER AND OTHER CO-OWNERS AND 5TH RESPONDENT** - **EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.1270/09 DATED 5.6.2009 ENTERED BETWEEN THE PETITIONER AND THE CO-OWNERS THE 5TH RESPONDENT** - **EXHIBIT P3 A TRUE COPY OF THE JOINT VENTURE AGREEMENT DATED 30.11.2012 BETWEEN PETITIONER, 5TH RESPONDENT, RESPONDENT 6 TO 8 AND RESPONDENT NOS.3 AND 4** - **EXHIBIT P4 A TRUE COPY OF THE GENERAL POWER OF ATTORNEY DATED 30.11.201`2 EXECUTED BY THE PETITIONER, RESPONDENTS NO.6 TO 8 AND 5TH RESPONDENT IN FAVOUR OF RESPONDENT NO.4** |**EXHIBIT P5**|**A TRUE COPY OF THE NOTICE DATED 26.10.2018**| |---|---| ||**ISSUED BY THE IFCI, LTD. TO THE**| ||**PETITIONER'S MOTHER AND**| ||**SIBLINGS(RESPONDENTS 6 TO 8)**| |**EXHIBIT P6**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**1.5.2019 MADE BY THE 6TH RESPONDENT TO THE**| ||**IFCI LTD TO INSPECT TO RECORDS WITH REGARD**| ||**TO THE ALLEGED LOAN**| |**EXHIBIT P7**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**3.6.2019 FROM THE IFCI LTD, PERMITTING THE**| ||**6TH RESPONDENT TO VERIFY THE RECORDS**| |**EXHIBIT P8**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**14.6.2019 MADE BY THE 6TH RESPONDENT TO THE**| ||**IFCI LTD**| |**EXHIBIT P9**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**27.8.2019 MADE BY THE 6TH RESPONDENT TO THE**| ||**IFCI LTD**| |**EXHIBIT P10**|**A TRUE COPY OF THE ALLEGED POWER OF**| ||**ATTORNEY EXECUTED BY THE RESPONDENTS NO.6**| ||**TO 8 IN FAVOUR OF MR.CHANDRA BABU, MANAGING**| **WP(C).No.3658 OF 2020(F)** **11** **DIRECTOR OF THE 5TH RESPONDENT DATED 28.3.2015** **EXHIBIT P11 A TRUE COPY OF THE ALLEGED DEED OF INTERIM PERSONAL GUARANTEE ALLEGED TO THE EXECUTED BY THE 6TH RESPONDENT IN FAVOUR OF THE IFCI LTD, DATED 28.3.2015 EXHIBIT P12 A TRUE COPY OF THE ALLEGE DECLARATION AND UNDERTAKING ALLEGED TO EXECUTED BY MR.CHANDRA BABU, MANAGING DIRECTOR OF THE 5TH RESPONDENT ON BEHALF OF THE 5TH RESPONDENT AND ON BEHALF OF RESPONDENTS 6 TO 8 IN FAVOUR OF IFCI LTD EXHIBIT P13 A TRUE COPY OF THE ORDER NO.CP(IB)4447/MB/2018 DATED 27.3.2019 PASSED BY THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH EXHIBIT P14 A TRUE COPY OF THE CLAIM PETITION DATED 10.4.2019 FILED BY THE PETITIONER BEFORE THE INTERIM RESOLUTION PROFESSIONAL APPOINTED BY THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH EXHIBIT P15 A TRUE COPY OF THE CMP NO.3061/2019 FILED BY THE PETITIONER BEFORE THE JUDICIAL MAGISTRATE COURT, TRIVANDRUM DATED 4.10.2019 EXHIBIT P16 A TRUE COPY OF THE FIR IN CRIME NO.1743/2019 OF THUMBA POLICE STATION DATED 7.10.2019 EXHIBIT P17 A TRUE COPY OF THE FIR DATED 10.4.2019 REGISTERED BY THE CBI RESPONDENT AGAINST THE RESPONDENTS NO.8,9 AND FEW OTHERS IN RC.3(A)/2019/CBI/ACB/COCHIN EXHIBIT P18 A TRUE COPY OF THE GENERAL POWER OF ATTORNEY DATED 19.9.2019 EXECUTED BY THE PETITIONERS EXHIBIT P19 A TRUE COPY O THE NOTICE DATED 23.1.2020 ISSUED BY THE 8TH RESPONDENT**