Muhammed Najeeb M v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 WP(C) NO. 3357 OF 2024 ``` ## **`PETITIONER:`** ``` MUHAMMED NAJEEB.M, AGED 32 YEARS S/O.ABDUL SALAM, MORAVANCHERI HOUSE, VALIYATTA, KARAKURISSY P.O, PALAKKAD, PIN – 678595 ``` ``` BY ADVS. K.SIJU ANJANA KANNATH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF TRANSPORT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001`** - **`2 REGIONAL TRANSPORT OFFICER OFFICE OF THE REGIONAL TRANSPORT OFFICER, KODATHIPADI, MANNARKKADU P.O, PALAKKAD,, PIN – 678762`** - **`3 INDUS IND BANK LTD., PATTAMBI BRANCH, PATTAMBI P.O, PALAKKAD REPRESENTED ITS BRANCH MANAGER, PIN – 679303`** ``` 4THE AUTHORIZED OFFICER INDUS IND BANK LTD., REGIONAL OFFICE, FIRST FLOOR, JAIN TOWER-2, NEAR RAILWAY BRIDGE, NH 17 BY-PASS, EDAPPALLY, ERNAKULAM, PIN - 682024 ``` ``` WP(C) No.3357 of 2024 ``` ``` 2 ``` ``` 5AMEER.B S/O.BASHEERKUTTY, PARAYARUVILA VEEDU, MATTAKKAVU, NEDUMPANA P.O, KOLLAM, PIN – 691576 ``` ``` BY ADV VARGHESE C.KURIAKOSE SRI.S.GOPINATHAN-SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.3357 of 2024 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 5[th] day of February, 2024 The petitioner, who is owner of a Tipper Lorry bearing registration No.KL-50J-6766, which was purchased availing financial assistance from the 3[rd] respondent-Bank, has filed this writ petition seeking to command the 4[th] respondentAuthorised Officer of the Indus Ind Bank Limited to hand over possession of the vehicle to the petitioner and permit him to clear the EMI arrears in instalments so as to regularise the loan. 2. The petitioner, admittedly, has availed a loan from the 3[rd] respondent-Bank for purchasing the Tipper Lorry. According to the petitioner, the 5[th] respondent had taken over the vehicle when the petitioner failed to pay the monthly instalments. The petitioner states that he is ready and willing to wipe off the overdue liability by paying the arrears in order ``` WP(C) No.3357 of 2024 ``` ``` 4 ``` to regularise the loan. 3. Standing Counsel entered appearance on behalf of respondents 3 and 4 and resisted the writ petition. The Standing Counsel submitted that the writ petition has become infructuous as the vehicle in question was sold in auction and the sale is confirmed in favour of the purchaser. Furthermore, it is pointed out that one Ameer B., who stated to have entered into an agreement with the petitioner, approached this Court filing W.P.(C) No.3189/2024 seeking not to effect change of ownership in the RC Book or to issue fresh RC. The said writ petition was considered by this Court and dismissed on 31.01.2024. 4. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 and 2 and the learned Standing Counsel representing respondents 3 and 4. In view of the nature of relief to be granted in the writ petition, notice to the 5[th] respondent is ``` WP(C) No.3357 of 2024 ``` ``` 5 ``` dispensed with. 5. The grievance of the petitioner is relating to the proceedings initiated by the respondents under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the attempt of the respondents to take over and sell the secured asset provided by the petitioner. 6. 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. 7. In the judgment in _**Authorised Officer, State Bank of Travancore v. Mathew K.C.** [2018 (1) KLT 784],_ the ``` WP(C) No.3357 of 2024 ``` ``` 6 ``` Hon’ble Apex Court reiterated that no writ petition would lie against the proceedings under the SARFAESI Act 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 ``` WP(C) No.3357 of 2024 ``` ``` 7 ``` petition challenging any proceedings under the 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 and it is dismissed. Sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) No.3357 of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 3357/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1THE COPY OF REGISTRATION PARTICULARS OF VEHICLE NO.KL 50 J 6766 Exhibit P2THE COPY OF ORDER DATED 11.4.2023 IN M.C NO.267/2023 ON THE FILE OF CJM COURT, THRISSUR Exhibit P3THE COPY OF PLAINT IN O.S NO.768/2023 ON THE FILE OF MUNSIFF COURT, KOLLAM DATED 24.8.2023 ```