M/S. NAMBOOTHIRI TRUST v. The South Indian Bank Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 6077 OF 2023** ## **PETITIONER:** **M/S. NAMBOOTHIRI TRUST, MOOKAMBIKA TECHNICAL CAMPUS, EATTAPPALLY, MANNATHOOR P.O., KOOTHATTUKULAM (VIA), ERNAKULAM. PIN - 686723 REPRESENTED BY ITS CHAIRMAN S HRI JADHAVEDAN NAMBOOTHIRI.** **BY ADV SINU.G.NATH** ## **RESPONDENTS:** **1 THE SOUTH INDIAN BANK LTD, HAVING REGISTERED OFFICE AT SIB HOUSE, T.B. ROAD, MISSION QUARTERS, THRISSUR, KERALA. PIN - 680001 REPRESENTED BY ITS AUTHORIZED OFFICER. 2 THE SOUTH INDIAN BANK LTD NAGAMPADAM BRANCH, DOOR NO.408/C-1, WARD NO XVI, KIZHAKETHIL ARCADE, NEAR NAGAMBADOM BRIDGE, M.C. ROAD, KOTTAYAM, PIN - 686001 REPRESENTED BY BRANCH MANAGER.** **BY ADVS. SUNIL SHANKER VIDYA GANGADHARAN SANDHRA.S** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.6077 of 2023** :2: ## **J U D G M E N T** ## Dated this the 26[th] day of February, 2024 ## The petitioner approached this Court seeking the following reliefs:- “i) Issue a writ of mandamus or any other writ, order or direction of appropriate nature, quashing Ext.P14 Tender Cum Auction Notice finding that it is illegal and arbitrary. ii) Issue a writ of mandamus or any other writ, order or direction of appropriate nature, directing the respondents to extend instalment facility to repay the defaulted dues in Loan Nos.498.652.229, 498.652.230, 498.652.233, 498.655.125, 498.655.280 and 498.655.282 or in any other loan covered by Ext.P14. iii) Issue a writ of mandamus or any other writ, order or direction of appropriate nature, directing the respondents to regularise and reschedule in Loan Nos.498.652.229, 498.652.230, 498.652.233, 498.655.125, 498.655.280 and 498.655.282. iv) Pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2. It was when the 1[st] respondent-Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, ## **W.P.(C) No.6077 of 2023** **==> picture [14 x 9] intentionally omitted <==** 2002 and initiated coercive measures that the writ petition was filed. When the writ petition came up for admission on 09.03.2023, Counsel for the petitioner submitted that an amount of ₹25 lakhs will be paid on that day itself. 3. On 10.03.2023, when the case was taken up, the petitioner submitted that he has remitted an amount of ₹16 lakhs and prayed that sale may be put off, if the petitioner pays a further sum of ₹9 lakhs on 18.03.2023. This Court, on that day, passed an interim order of stay of auction on condition that the petitioner remits a sum of ₹34 lakhs on or before 18.03.2023. 4. On 12.02.2024, when this writ petition came up for hearing, it was submitted that the said amount was paid by the petitioner. 5. When the writ petition came up for hearing on 12.02.2024, the petitioner submitted that the petitioner shall deposit an amount of ₹50 lakhs on or before 16.02.2024. ## **W.P.(C) No.6077 of 2023** **==> picture [14 x 9] intentionally omitted <==** The petitioner has not paid that amount so far. 6. As on date, more than ₹3,04,00,000/- due from the petitioner. As the petitioner could not abide by the interim order of this Court, I am of the view that no further reliefs can be granted in this writ petition. 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 ## **W.P.(C) No.6077 of 2023** **==> picture [14 x 9] intentionally omitted <==** of the statutory remedy available under the said Act. 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 ## **W.P.(C) No.6077 of 2023** **==> picture [14 x 9] intentionally omitted <==** Securitisation 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. The writ petition is therefore dismissed. It will be open to the petitioner to approach the Bank for any further arrangement / One Time Settlement of the loan account. Sd/- **N. NAGARESH** **JUDGE** ams ## **W.P.(C) No.6077 of 2023** :7: ## **APPENDIX OF WP(C) 6077/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE LOAN SANCTIONING LETTER BEARING NO. LD -100 DATED 22/02/2013 Exhibit P2 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.655.280 Exhibit P3 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.655.281** **Exhibit P4 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.655.282** - **Exhibit P5 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.655.125** - **Exhibit P6 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.652.229** - **Exhibit P7 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.652.230** - **Exhibit P8 TRUE COPY OF THE NOTICE DT 05/12/2020 INTIMATING DEFAULT IN LOAN NO. 498.652.233** - **Exhibit P9 TRUE COPY OF THENOTICE DT 22/04/2021 RECALLING LOANS** - **Exhibit P10 TRUE COPY OF THE DEMAND NOTICE DATED 29.06.2021 ISSUED U/S 13(2) OF SARFAESI ACT** - **Exhibit P11 TRUE COPY OF THE POSSESSION NOTICE DATED 24/05/2022** ## **W.P.(C) No.6077 of 2023** :8: **Exhibit P12 TRUE COPY OF THE REQUEST DT 29/06/2022** **Exhibit P13 TRUE COPY OF THE SALE NOTICE DATED 02/07/2022** **Exhibit P14 TRUE COPY OF THE TENDER CUM SALE NOTICE DATED 06/02/2023** **Exhibit P15 TRUE COPY OF THE RESOLUTION OF THE APPLICANT/PETITIONER TRUST PASSED IN ITS GENERAL BODY MEETING HELD ON 28/01/2024** **Exhibit P16 TRUE COPY OF THE APPLICATION FOR PERMISSION DATED 31.01.2024 SUBMITTED BEFORE THE 2ND RESPONDENT** **RESPONDENT'S EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE REPLY LETTER OF THE DEPUTY GENERAL MANAGER OF THE RESPONDENT BANK DATED 11.07.2022.**