Pankajakshan Nair K and others v. M/s HDFC Bank Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 ``` ## **`WP(C) NO. 20205 OF 2024`** ## **`PETITIONERS:`** - **`1 PANKAJAKSHAN NAIR K AGED 73 YEARS S/O KRISHNA PILLAI, SAKETH, T.C. NO. 7/1561 (3), KURA 7B, VATTAMUKKU, THIRUMALA P.O., THIRUVANANTHAPURAM, PIN - 695006`** - **`2 GREESHMA AGED 35 YEARS D/O GEETHAKUMARI G, SAKETH, T.C. NO. 7/1561 (3), KURA 7B, VATTAMUKKU, THIRUMALA P.O., THIRUVANANTHAPURAM, PIN - 695006`** - **`3 GAYATHRI AGED 33 YEARS D/O GEETHAKUMARI G, SAKETH, T.C. NO. 7/1561 (3), KURA 7B, VATTAMUKKU, THIRUMALA P.O., THIRUVANANTHAPURAM, PIN – 695006`** ## **`BY ADV P.C.HARIDAS`** ## **`RESPONDENTS:`** - **`1 M/S. HDFC BANK LTD REPRESENTED BY ITS AUTHORIZED OFFICER, PB NO. 2288, OPPOSITE TAGORE THEATER, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695010`** - **`2 THE AUTHORIZED OFFICER HDFC BANK LTD, TAGORE THEATER, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN – 695010`** ``` WP(C) No.20205 Of 2024 ``` ``` 2 ``` ``` BY ADVS. AMBILY S RUBAN JOE TONIYO(K/002926/2022) K.K.CHANDRAN PILLAI (SR.)(C-41) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.20205 Of 2024 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 5[th] day of June, 2024 The 1[st] petitioner and his wife have availed financial assistances from the 1[st] respondent-Bank. The petitioners have filed this writ petition seeking to quash Ext.P2 and to command respondents to consider the request of the petitioners and rescheduled loans and permit the petitioners to pay off the accrued arrears in five monthly instalments. 2. The petitioners state that they are not wilful defaulters of the loans and they were prevented from maintaining the loan account due to situation arising out of the illness of the wife of the 1[st] petitioner and her prolonged treatment. The petitioners state that they had volunteered before the Debts Recovery Tribunal to clear the overdue amount by 30.06.2024 with the expectation that they could dispose of one of their valuable property and utilise the proceeds for repayment of the loan. Unfortunately, the sale ``` WP(C) No.20205 Of 2024 ``` ``` 4 ``` did not materialise. 3. The petitioners state that in the factual circumstances, the petitioners are entitled to get a direction to the respondents to keep the coercive proceedings against the secured assets in abeyance and permitting them to clear the accrued arrears in five monthly instalments. 4. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. The Standing Counsel submitted that the Debts Recovery Tribunal had passed Ext.P1 order permitting the petitioner to pay the amount in instalments. The petitioners did not adhere to the time schedule. 5. Standing Counsel also pointed out that the petitioners had filed a memo in the Debts Recovery Tribunal agreeing to pay an amount of ₹10 lakhs on or before 31.03.2024 and the balance amount in three instalments on or before 30.06.2024. The petitioners have not paid any amount subsequent to the filing of the memo. The writ ``` WP(C) No.20205 Of 2024 ``` ``` 5 ``` petition is therefore liable to be dismissed, contended the Standing Counsel. 6. In this writ petition, the petitioners are challenging Ext.P2. Ext.P2 is a notice issued by the Advocate Commissioner pursuant to an order of the Chief Judicial Magistrate’s Court, Thiruvananthapuram in a petition under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 7. It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of ``` WP(C) No.20205 Of 2024 ``` ``` 6 ``` Security Interest Act, 2002 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 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] 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 ``` WP(C) No.20205 Of 2024 ``` ``` 7 ``` 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 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.20205 Of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 20205/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit-P1TRUE COPY OF THE ORDER DATED 21/03/2024 IN SA NO. 231/2024 OF THE DEBT RECOVERY TRIBUNAL-2, ERNAKULAM Exhibit-P2TRUE COPY OF THE NOTICE DATED 27/05/2024ISSUEDBYADVOCATE MAHALAKSHMYPS,ADVOCATE THIRUVANANTHAPURAM TO THE PETITIONERS ```