P. Nazar v. Ombudsman for Reserve Bank of India, Trivandrum; Union Bank of India; Branch Manager, Corporation Bank; Authorized Officer, Corporation Bank; Vasudev Krishnakumar; Kerala Police Housing Co-Operative Society Ltd.

W.P.(C)No.1629 of 2022 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944 ``` ## **`WP(C) NO. 1629 OF 2022`** ## **`PETITIONER/S:`** ``` P.NAZAR AGED 51 YEARS S/O. PEERU MYTHEEN, RESIDING AT ALFIA MANZIL, T.C.23/220, VRINDAVAN GARDENS, KOWDIAR, TRIVANDRUM-695035. BY ADVS. P.SANJAY A.PARVATHI MENON BIJU MEENATTOOR PAUL VARGHESE (PALLATH) P.A.MOHAMMED ASLAM KIRAN NARAYANAN PRASOON SUNNY RAHUL RAJ P. ``` ## **`RESPONDENT/S:`** - `1 THE OMBUDSMAN FOR RESERVE BANK OF INDIA FOR TRIVANDRUM, 6507, BAKERY JCT ROAD, NANDAVANAM, PALAYA, THIRUVANANTHAPURAM, KERALA-695033.` - `2 UNION BANK OF INDIA, 15, MITTAL CHAMBERS, NARIMAN POINT, MUMBAI, INDIA-400021, REPRESENTED BY ITS MANAGING DIRECTOR. (RESPONDENT NAME AMENDED FROM CORPORATION BANK TO UNION BANK OF INDIA AS PER ORDER DTD. 19.01.2022 IN IA 1/2022 IN WP(C) 1629/2022)` - `3 THE BRANCH MANAGER, CORPORATION BANK, TRIVANDRUM BRANCH, T.C.25/298(1), GOVERNMENT PRESS ROAD, TRIVANDRUM-695001.` - `4 THE AUTHORIZED OFFICER, CORPORATION BANK, THIRUVANANTHAPURAM BRANCH, 25/298(1), GOVERNMENT PRESS ROAD, TRIVANDRUM-695001.` - `5 VASUDEV KRISHNAKUMAR, 290, BISHOPTHORPE ROAD, YORK, UNITED KINGDOM, YO23 1LG, RESIDING AT VYSHNAVAM, CHAMUNDESHWARI ROAD, NEAR CHAMUNDESHWARI TEMPLE, GURUVAYUR, TRISSUR, PIN-680101.` - `6 ADDL.R6.KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD.NO.4348, ELAMKULAM PO, ERNAKULAM-682020 REPRESENTED BY ITS SECRETARY MRS. SALIMOL KOSHY, IMPLEADED VIDE ORDER DTD. 28.02.2022 IN IA-4/2022 IN WP(C) 1629/2022` W.P.(C)No.1629 of 2022 2 ``` BY ADVS. S.B.PREMACHANDRA PRABHU K.A.SALIL NARAYANAN BIJU BALAKRISHNAN V.S.RAKHEE AJMAL P. PARVATHY S.R. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)No.1629 of 2022 3 ## **BECHU KURIAN THOMAS, J. ======================== W.P.(C) No.1629 of 2022** **------------------------------------------------** _Dated this the 6[th] day of April, 2022_ ## **JUDGMENT** Petitioner challenges Ext.P2 notice of sale of the properties issued in enforcement of the security interest under the provisions of the Securtization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. At the time of admission on 27.01.2022, this Court after being appraised of the auction having taken place on 21.01.2022, directed registration of the sale to be kept in abeyance, in view of the nature of contentions raised by the petitioner. The said order was issued reckoning the fact that the Debts Recovery Tribunal was not functioning. 2. In view of the nature of the order I propose to issue, notice to the first respondent is dispensed with. Since the 2[nd] respondent is the erstwhile bank which has now merged with the 3[rd] respondent, separate notice to the 2[nd] respondent is unnecessary as it is a non-existent entity. 3. Learned Counsel appearing for respondents 3 and 4 submitted that auction had actually taken place on 20.01.2022 W.P.(C)No.1629 of 2022 4 and not on 21.02.2022 as recorded in the interim order dated 27.01.2022. It was further submitted that the sale was confirmed in favour of the additional 6[th] respondent, though registration of the sale certificate has not been carried out in view of the interdiction imposed by this Court. 4. Various contentions have been raised by the petitioner questioning the notice for sale, which in turn questions the sale held on 20.01.2022. According to Sri.P.Sanjay, the learned Counsel for the petitioner, sale was conducted in violation of the statutory prescriptions and that the property has been sold for a ‘song’. 5. Adv.Salil Narayanan, submitted that the 5[th] respondent had offered Rs.13 Crores to purchase the property and that it was ignoring the said offer that respondents 3 and 4 proceeded to conduct the sale in favour of the additional 6[th] respondent. 6. Learned Counsel for respondents 3 and 4 on the other hand disputes the contentions raised by the 5[th] respondent and submitted that they have never approached the bank with such an offer. 7. The auction purchaser represented by Adv.Biju Balakrishnan on the other hand submitted that the purchaser had paid an amount of Rs.11.51 Crores to purchase the property. It was submitted that the Bank had tried to sell the secured asset W.P.(C)No.1629 of 2022 5 earlier and that in spite of repeated attempts to sell, no other purchaser had ever come forward. 8. The aforesaid submissions by the respective Counsel indicates that various disputed contentions arise for consideration. Since the scope of proceedings under Article 226 of the Constitution of India challenging the steps initiated for enforcement of security interest is very limited, as held in **Authorised Officer, State Bank of Travancore Vs.K.S.Mathew [(2018) 1 KLT 784 SC],** this may not be a fit case for this Court to interfere under Article 226 of the Constitution of India, especially since, the Debts Recovery Tribunal has recommenced its functioning. 9. Taking note of the fact that an auction has already been held and since this Court had already held in the decision in ## **Sree Gokulam Chits & Finance Co. Vs.Ebin Eric Hospitality** **Services [(2021) 6 KHC 411],** that the right of redemption of a property cannot be extended beyond the date of publication of notice under Section 13 (8) of the SARFAESI Act, the interdiction to complete the process of sale ought not to continue. 9. In view of the above, it may not be proper to continue to interdict the secured creditor from registering the sale in favour of the auction purchaser. Accordingly, respondents 3 and 4 are permitted to proceed with registration of the sale held on W.P.(C)No.1629 of 2022 6 20.1.2022, in favour of the additional 6[th] respondent, who claims to be auction purchaser. However, despite the sale, borrower has a right to challenge the sale proceedings as per the statutory provisions of the SARFAESI Act. The said right cannot be curtailed merely because the petitioner has challenged the sale notice. Accordingly, reserving the liberty of the petitioner to pursue his statutory remedies available in accordance with law, against the sale held on 20.01.2022 as well, this writ petition is disposed. Needless to mention that registration will be subject to the result of the proceedings, if any initiated by the petitioner before the Tribunal. 10. It is also clarified that while calculating the period of limitation the period spent by the petitioner before this Court from 17.01.2022 till today shall be excluded under Section 14 of the Limitation Act. 11. This writ petition was filed on 17.01.2022 challenging the sale notice; the challenge was even before the sale took place. The objection of respondents 3 and 4 that the exclusion of limitation cannot be granted to the petitioner, is according to me, not tenable. The Tribunal restarted functioning only on 16.03.2022. Thus from 20.01.2022 till 16.03.2022, petitioner had no other forum other than the High Court to approach for challenging the sale notice or the sale. Therefore, it is only in the W.P.(C)No.1629 of 2022 7 interest of justice that the periods spent by the petitioner in pursuing this writ petition be excluded, while giving him liberty to move the Tribunal. Therefore, I am of the view that the period spent by the petitioner from 17.01.2022 till today must be excluded while calculating the period of limitation. I am fortified in my above conclusions, in view of the judgments of the Madras High Court in Sarathy Ginning Factory v. Authorised Officer, Andhra Bank in WP(C) No.2593/2018 dated 06.02.2018 and the judgment in M/s. Thirumalai Tile House v. Lakshmi Vilas Bank Ltd., in WP(C) No.9162/2017 dated 24.11.2017. Thus, reserving the liberty of the petitioner to challenge the proceedings for sale as well as the sale before the Debts Recovery Tribunal, in accordance with law, this writ petition is disposed of. sd/ **BECHU KURIAN THOMAS JUDGE** jm/ W.P.(C)No.1629 of 2022 8 ## **`APPENDIX OF WP(C) 1629/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE SALE AGREEMENT NO.3602/2015`| ||`DATED 26.11.2015.`| |`Exhibit P2`|`TRUE COPY OF THE NOTICE DATED 27.12.2021 ISSUED`| ||`BY THE 3RD RESPONDENT.`| |`Exhibit P3`|`TRUE COPY OF THE EMAIL COMMUNICATION DATED`| ||`16.1.2022 ISSUED BY THE 5TH RESPONDENT.`| |`Exhibit P4`|`TRUE COPY OF THE EMAIL COMPLAINT DATED`| ||`15.1.2022 ISSUED TO 3RD RESPONDENT BY THE`| ||`PETITIONER.`| |`Exhibit P5`|`TRUE COPY OF THE REPRESENTATION DATED 16.1.2022`| ||`ISSUE TO 2ND RESPONDENT BY THE PETITIONER.`| |`Exhibit P6`|`PHOTOGRAPHS OF POLICE VEHICLES PARKED IN THE`| ||`PREMISES.`| |`Exhibit P7`|`PHOTOGRAPHS SHOWING THE DUMPING OF GARBAGE IN`| ||`THE PREMISES.`| |`Exhibit P8`|`TRUE COPY OF THE PETITIONER'S REQUEST DATED`| ||`12.10.2017 TO THE UNION BANK OF INDIA (FORMERLY`| ||`CORPORATION BANK).`| |`Exhibit P9`|`TRUE COPY OF THE PETITIONER'S REQUEST DATED`| ||`05.12.2017 TO THE UNION BANK OF INDIA,`| ||`TRIVANDRUM (FORMERLY CORPORATION BANK).`| |`Exhibit P10`|`TRUE COPY OF THE REPLY FROM THE UNION BANK OF`| ||`INDIA TRIVANDRUM (FORMERLY CORPORATION BANK)`| ||`NUMBERED AS OR/070/453/2017 DATED 07.12.2017.`| |`Exhibit P11`|`TRUE COPY OF THE REPLY NO.OR/070/73/2018 BY`| ||`UNION BANK OF INDIA, TRIVANDRUM (FORMERLY`| ||`CORPORATION BANK) TO THE OTS PROPOSAL DATED`| ||`19.05.2018.`| |`Exhibit P12`|`TRUE COPY OF THE PETITIONER'S REQUEST DATED`| ||`05.06.2018 TO THE UNION BANK OF INDIA (FORMERLY`| ||`CORPORATION BANK).`| |`Exhibit P13`|`TRUE COPY OF THE PETITIONER'S REQUEST DATED`| ||`11.01.2019 UNION BANK OF INDIA (FORMERLY`| ||`CORPORATION BANK).`| |`Exhibit P14`|`TRUE COPY OF THE REPLY FROM THE UNION BANK OF`| ||`INDIA, TRIVANDRUM (FORMERLY CORPORATION BANK)`| ||`NUMBERED AS OR/TVM/2019 DATED 14.03.2019.`| |`Exhibit P15`|`TRUE COPY OF THE PETITIONER'S REQUEST DATED`| ||`28.03.2019 TO THE UNION BANK OF INDIA,`| ||`TRIVANDRUM (FORMERLY CORPORATION BANK).`| |`Exhibit P16`|`TRUE COPY OF THE REPLY FROM THE UNION BANK OF`| ||`INDIA, TRIVANDRUM (FORMERLY CORPORATION BANK)`| ||`NUMBERED AS OR/TVM/102/2019 DATED 02.04.2019.`| W.P.(C)No.1629 of 2022 9 |`Exhibit P17`|`TRUE COPY OF THE VALUATION CERTIFICATE BEFORE`| |---|---| ||`THE SUB REGISTRAR DATED 22-02-2022.`| |`Exhibit P18`|`TRUE COPY OF THE FAIR VALUE OF LAND OBTAINED`| ||`FROM GOVERNMENT WEBSITE.`| |`Exhibit P19`|`TRUE COPY OF THE LETTER NO.OR/070/73/2018 DATED`| ||`19-05-2018 ISSUED BY THE UNION BANK OF INDIA`| ||`(FORMERLY CORPORATION BANK), THIRUVANANTHAPURAM`| ||`BRANCH.`| |`Exhibit P20`|`TRUE COPY OF THE LETTER NO.OR/070/114/2018-19`| ||`DATED 20-06-2018 ISSUED BY THE UNION BANK OF`| ||`INDIA (FORMERLY CORPORATION BANK),`| ||`THIRUVANANTHAPURAM BRANCH.`| |`Exhibit P21`|`TRUE COPY OF THE REQUEST LETTER DATED 28-03-`| ||`2019 OF PETITIONER TO THE UNION BANK OF INDIA`| ||`(FORMERLY CORPORATION BANK), THIRUVANANTHAPURAM`| ||`BRANCH.`| |`Exhibit P22`|`TRUE COPY OF THE DEMAND DRAFT DATED 27-04-2018`| ||`ISSUED TO THE UNION BANK OF INDIA (FORMERLY`| ||`CORPORATION BANK), THIRUVANANTHAPURAM.`| |`Exhibit P23`|`TRUE COPY OF THE TRANSFER RECEIPTS DATED 29-03-`| ||`2019.`| |`Exhibit P24`|`TRUE COPY OF THE LETTER DATED 20-02-2022 ISSUED`| ||`ON BEHALF OF THE 5TH RESPONDENT TO PETITIONER.`| |`Exhibit P25`|`TRUE COPY OF THE CREDIT SANCTION LETTER WITHOUT`| ||`ENCLOSURES ISSUED BY THE CORPORATION BANK,`| ||`TRIVANDRUM`| |`Exhibit P26`|`TRUE COPY OF THE POSSESSION NOTICE DATED`| ||`06/08/2015 ISSUED BY THE CORPORATION BANK,`| ||`THIRUVANANTHAPURAM`| |`Exhibit P27`|`TRUE COPY OF THE FIRST SALE NOTICE NO.`| ||`OR/TVM/REC/162/2016-17 ISSUED BY THE`| ||`CORPORATION BANK, TRIVANDRUM DATED 29/04/2016`|