High Court of KeralaSingle Judge2024-02-26Writ petition dismissed

Nisthar C v Calicut Co-operative Urban Bank Limited

Case / Petition Number:WP(C) No.6066 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-02-26
Court Decision / Holding: Writ petition dismissed; liberty to approach the bank for any arrangement or One Time Settlement (OTS).
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Nisthar C

Respondents

Calicut Co-operative Urban Bank Limited represented by its Branch Manager, Kallai Branch, Kozhikode; Authorised Officer, Calicut Co-operative Urban Bank Limited, Kallai Branch, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• RafeeK. V.K.
• Victor Antony Noone
• R. Rajasree (Chuttimattathil)
• U. M. Hassan
• Salman Faris

Counsels for Respondents

• Devaprasanth P.J.
• Smini Jose

Case Synopsis & Summary

This writ petition, filed by Nisthar C, seeks to stall possession and sale of his residential property by Calicut Co-operative Urban Bank under the SARFAESI framework. The petitioner prays for a writ of mandamus to stay the proceedings under Ext. P4 and to grant a facility to repay the outstanding loan in fifteen monthly instalments, thereby regularising the loan account. He argues that a breathing space would enable him to repay in instalments and avert hardship caused by sale of his home. The matter traces back to an earlier order in WP(C) No.14063 of 2022, where the Court permitted repayment in instalments and directed an initial payment of ₹3 lakh by 22 Feb 2024; the petitioner has paid only ₹50,000. The respondent bank contends that the petitioner has failed to adhere to the instalment schedule and that no writ lies against SARFAESI proceedings; the court repeatedly emphasises the settled law that statutory remedy under SARFAESI is efficacious. The court references United Bank of India v. Satyawati Tondon and other authorities and, after considering the arguments, dismisses the petition, granting liberty to approach the bank for any arrangement or One Time Settlement. It records that the petitioner’s past non-compliance and the statutory framework justify non-interference.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)Constitution of India, Article 226

Legal Doctrines & Maxims

No writ lies against SARFAESI proceedings
Efficacious alternative remedy under the SARFAESI Act
Article 226 should be exercised only in extraordinary circumstances where a statutory remedy exists or where there is a failure of that remedy

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that staying the SARFAESI proceedings and granting 15 monthly instalments would enable him to clear the debt without losing his residential home. He points to earlier interim relief in WP(C) No.14063/2022 directing instalment payments and an initial ₹3 lakh payment by 22.02.2024, of which only ₹50,000 was paid. He pleads hardship and asserts readiness to comply with a feasible instalment plan to avoid forced sale.

Contentions of Respondents

The respondents contend that the petitioner defaulted on the instalment schedule and that no writ lies against SARFAESI proceedings. They rely on established authorities that provide for an efficacious statutory remedy under SARFAESI and argue that the Court should dismiss the petition and permit the Bank to proceed under the Act, while offering the petitioner an opportunity to negotiate a settlement if possible.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
United Bank of India v. Satyawati Tondon and others	(2010) 8 SCC 110	Positive	No writ petition shall be entertained against SARFAESI proceedings; statutory remedy is efficacious.
Authorised Officer, State Bank of Travancore v. Mathew K.C.	(2018) (1) KLT 784	Positive	Reiterates that no writ lies against SARFAESI proceedings given statutory remedy.
Anilkumar v. State Bank of India	2020 (2) KLT 756	Positive	Cited as a reaffirmation that writs under Article 226 are not preferred against SARFAESI proceedings, following higher court rulings.
South Indian Bank Limited v. Naveen Mathew Philip	2023 (4) KLT 29	Positive	SC/High Court principle that Article 226 should be used only in extraordinary circumstances where a statutory remedy exists.
Jayakrishnan A. v. Union Bank of India and others	W.P.(C) No.30803/2023	Positive	Writ petition challenging SARFAESI proceedings not maintainable where efficacious remedy exists; supports dismissal.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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. 6066 OF 2024** ## **PETITIONER:** **NISTHAR C AGED 44 YEARS, S/O. MOHAMMED, CHEKKINTAKATH, KARIYADTH PARAMB, BEPPUR P.O., KOZHIKODE – 673015.** **BY ADVS. RAFEEK. V.K. VICTOR ANTONY NOONE R.RAJASREE (CHUTTIMATTATHIL) U.M.HASSAN SALMAN FARIS** ## **RESPONDENTS:** - **1 THE CALICUT CO-OPERATIVE URBAN BANK LIMITED REPRESENTED BY ITS BRANCH MANAGER, KALLAI BRANCH,KALLAI ROAD, KOZHIKODE, PIN – 673002.** - **2 AUTHORISED OFFICER THE CALICUT CO-OPERATIVE URBAN BANK LIMITED, KALLAI BRANCH, KALLAI ROAD, KOZHIKODE, PIN – 673002.** **BY ADVS. DEVAPRASANTH P.J SMINI JOSE** **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.6066 of 2024** :2: ## **J U D G M E N T** ## Dated this the 26[th] day of February, 2024 ## The petitioner has approached this Court seeking the ## following reliefs:- “i) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to stay the proceedings pursuant to Ext.P4. ii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to give fifteen monthly instalments facility for the repayment of the due amount and to regularise the loan account. iii) To issue such other reliefs as this Hon'ble Court deem fit and proper in the circumstances of this case” ## 2. The petitioner states that if a breathing time is given, the petitioner can repay the entire outstanding loan amount in instalments. If the petitioner's secured asset is ## **W.P.(C) No.6066 of 2024** **==> picture [14 x 9] intentionally omitted <==** taken possession of and put to sale, the petitioner will be put to untold hardship and loss. The petitioner states that it is the residential property. 3. Standing Counsel entered appearance and submitted that the petitioner had earlier approached this Court filing W.P.(C) No.14063 of 2022 and this Court had permitted the petitioner to repay the amount in instalments. In this writ petition, this Court passed an interim order dated 15.02.2024 directing the petitioner to remit an amount of ₹3 lakhs on or before 22.02.2024. The petitioner has remitted only ₹50,000/- pursuant to the said direction within time. Counsel for the petitioner seeks further time to deposit the balance amount out of ₹3 lakhs directed to be paid by this Court. 4. I have heard the learned Counsel for the petitioner and the learned Standing Counsel representing ## **W.P.(C) No.6066 of 2024** **==> picture [14 x 9] intentionally omitted <==** the respondents. 5. It is to be noted that the petitioner had approached this Court earlier, when the overdue amount was ₹7,94,731/-. This Court as per Ext.P2 judgment, granted permission to the petitioner to pay the overdue amount in 15 equated monthly instalments. Evidently, the petitioner has not adhered to the said time schedule. When this writ petition was filed, the petitioner was granted an opportunity to make an initial payment of ₹3 lakhs on or before 22.02.2024. The petitioner has paid only ₹50,000/pursuant to the said direction before 22.02.2024. 6. Taking into consideration the fact that the petitioner had earlier approached this Court and this Court had granted an interim order to repay the amount in instalments, I am not inclined to grant any further order in favour of the petitioner. ## **W.P.(C) No.6066 of 2024** :5: 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 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] ## **W.P.(C) No.6066 of 2024** **==> picture [14 x 9] intentionally omitted <==** 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 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 ## **W.P.(C) No.6066 of 2024** **==> picture [14 x 9] intentionally omitted <==** 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 writ petition is therefore dismissed, granting liberty to the petitioner to approach the Bank for any arrangement or One Time Settlement in the matter. Sd/- **N. NAGARESH JUDGE** ams ## **W.P.(C) No.6066 of 2024** :8: ## **APPENDIX OF WP(C) 6066/2024** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF POSSESSION NOTICE DATED 30.03.2022 ISSUED BY THE RESPONDENT BANK Exhibit P2 TRUE COPY OF THE JUDGMENT IN WP(C) NO.14063/2022 DATED 25.08.2022 Exhibit P3 TRUE COPY OF PAYMENT RECEIPTS DATED 25.07.2023, 08.09.2023 AND 09.11.2023 Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN CRL.MP 614/2023 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE**