High Court of KeralaSingle JudgeWrit petition disposed; no relief; petitioners ...

Paul Jose and Others v. Idukki District Co-operative Bank Ltd; Kerala State Co-operative Bank Ltd; Authorized Officers under SARFAESI Act

Case / Petition Number:WP(C) No. 8614 of 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2024-03-05
Court Decision / Holding
The writ petition is disposed of with no relief to the petitioners in this petition. The court permits the petitioners to approach the Debts Recovery Tribunal if they have grievances relating to securitisation, and directs coercive proceedings to be deferred for two weeks to facilitate filing before the DRT. The Tribunal shall consider the pendency of the writ petition and the bona fide efforts to pursue remedies in this Court.
Final Disposition
Writ petition disposed; no relief; petitioners may approach Debts Recovery Tribunal for grievances relating to securitisation; coercive proceedings deferred for two weeks.

Parties to the Case

Appellants / Petitioners

  • Paul Jose
  • Manoj Jose
  • Maju Jose
  • Jose Kuttiyani

Respondents

  • Idukki District Co-operative Bank Ltd
  • Kerala State Co-operative Bank Ltd
  • Authorized Officer, under the SARFAESI Act, Idukki District Co-operative Bank Ltd
  • Authorized Officer, under the SARFAESI Act, Kerala State Co-operative Bank Ltd

Legal Representation & Advocates

Counsels for Petitioners

  • • P. V. Baby (Adv)

Counsels for Respondents

  • • Sri. Gilbert George Correya

Case Synopsis & Summary

Paul Jose, Manoj Jose, Maju Jose, and Jose Kuttiyani (petitioners) challenge actions by two district cooperative banks under the SARFAESI Act and the Kerala Co-operative Societies Act. The petitioners obtained OLCC loans totaling ₹75 lakh (₹25 lakh each for 1st/2nd/4th borrowers and ₹25 lakh for 3rd) for agricultural purposes in 2010; a subsequent enhanced facility of ₹25 lakh was offered for the 4th borrower due to timely payments. The loans became overdue within a year. In 2015 and 2017, the banks invoked SARFAESI proceedings under Section 13(2) and 69, and initiated parallel Kerala Co-operative Societies Act proceedings. Arbitrators issued awards, which the petitioners say were made without hearing their arguments. The Kerala Co-operative Tribunal remanded these arbitration cases to the Arbitrator (Exts. P7), and later, the banks issued possession notices (Exts. P8–P10). The petitioners contend that the claims are time-barred under Section 36 of SARFAESI read with Section 62 of the Limitation Act, and that securitisation proceedings cannot proceed without first calculating the amounts due. They urge relief to quash Exts. P8–P10 and to invoke remedies under Section 17 of SARFAESI (DRT). The respondents rely on the Supreme Court’s ruling that arbitration and securitisation can run in parallel (Indiabulls), and urge that the petition be dismissed with a direction to approach the DRT for grievances concerning securitisation.

Provisions of Law Cited

SARFAESI Act, 2002 - Section 13(2)SARFAESI Act, 2002 - Section 13(4)SARFAESI Act, 2002 - Section 69Kerala Co-operative Societies Act - Section 69Limitation Act, 1963 - Section 62SARFAESI Act, 2002 - Section 17 (DRT remedy)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that SARFAESI actions were commenced before computation of the amount due; securitisation is executory and initiating it without determining the amount due would cause irreparable harm. They challenge Exts. P8–P10 as time-barred (Section 36 SARFAESI read with Section 62 Limitation Act) and seek quashing. They argue the remedy for any grievance against the 13(4) notices lies in the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. They point to alleged lack of fair hearing in arbitration awards (Exts. P3–P6) and note remand orders by the Kerala Cooperative Tribunal (Ext. P7). They rely on Indiabulls Housing Finance v. Deccan Chronicle Holdings Ltd. to assert that arbitration and securitisation can coexist; yet seek protection against unjust securitisation.

Contentions of Respondents

The respondents contend that banks may pursue arbitration and securitisation concurrently, citing the Supreme Court in Indiabulls as support. They maintain the petitions against SARFAESI notices are misconceived and that the limitation challenges do not bar securitisation proceedings. They argue there is no illegality in resorting to both arbitration and securitisation and that the remedies lie in pursuing the DRT under Section 17 for any grievance with the Section 13(4) notice.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Indiabulls Housing Finance Ltd. v. Deccan Chronicle Holdings Limited and othersAIR 2018 SC (Supp) 856PositiveCited to support the proposition that arbitration and securitisation can proceed concurrently, and that the Bank may pursue securitisation even while arbitration is ongoing.

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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** **TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 WP(C) NO. 8614 OF 2024** ## **PETITIONERS:** - **1 PAUL JOSE AGED 47 YEARS, S/O. JOSE KUTTIYANI, KUTTIYANIKKAL HOUSE, THODUPUZHA, IDUKKI DISTRICT, PIN – 685581.** - **2 MANOJ JOSE** **AGED 52 YEARS, S/O. JOSE KUTTIYANI, KUTTIYANIKKAL HOUSE, THODUPUZHA, IDUKKI DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER, JOSE KUTTIYANI, S/O. JOSEPH, AGED 85 YEARS, KUTTIYANIKKAL HOUSE, THODUPUZHA P.O, IDUKKI DISTRICT, PIN – 685581.** **3 MAJU JOSE AGED 54 YEARS, S/O. JOSE KUTTIYANI, KUTTIYANIKKAL HOUSE, THODUPUZHA P.O, IDUKKI DISTRICT, PIN – 685581.** - **4 JOSE KUTTIYANI** **AGED 85 YEARS, S/O. JOSEPH, KUTTIYANIKKAL HOUSE, THODUPUZHA P.O, IDUKKI DISTRICT, PIN – 685581.** **BY ADV P.V.BABY** ## **RESPONDENTS:** - **1 IDUKKI DISTRICT CO-OPERATIVE BANK LTD. 4334 REP: BY ITS DEPUTY GENERAL MANAGER, IDUKKI DISTRICT CO-OPERATIVE BANK LTD, IDUKKI P.O, IDUKKI DISTRICT – 680603.** :2: ## **W.P.(C) No.8614 of 2024** - **2 KERALA STATE CO-OPERATIVE BANK LTD (KERALA BANK)CHERUTHONI, IDUKKI, PIN - 685602 REPRESENTED BY ITS MANAGER.** - **3 AUTHORIZED OFFICER, UNDER THE SARFAESI ACT IDUKKI DISTRICT CO-OPERATIVE BANK LTD, IDUKKI COLONY P.O – 685602.** - **4 AUTHORIZED OFFICER, UNDER THE SARFAESI ACT KERALA STATE CO-OPERATIVE BANK LTD, IDUKKI COLONY P.O, PIN – 685602.** ## **BY ADV.SRI.GILBERT GEORGE CORREYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) No.8614 of 2024** :3: ## **J U D G M E N T** Dated this the 5[th] day of March, 2024 The petitioners availed OLCC loan of ₹25 lakhs from the 1[st] respondent-Co-operative Bank on 19.08.2010. The petitioners state that the loan was taken for agricultural purpose mortgaging certain properties. The 3[rd] petitioner availed ₹25 lakhs and the 4[th] petitioner has also availed ₹15 lakhs for agricultural purpose. 2. The petitioners state that subsequently the Bank offered an enhanced facility of ₹25 laks since the 4[th] petitioner was regular in making payments. All the loans became overdue after a period of one year. 3. In the years 2015 and 2017, the Bank initiated proceedings under the SARFAESI Act invoking Section ## **W.P.(C) No.8614 of 2024** **==> picture [14 x 9] intentionally omitted <==** 13(2). At the same time, the Bank initiated Section 69 proceedings also under the Kerala Co-operative Societies Act. 4. The Arbitrator passed Awards without taking into consideration the arguments of the petitioners. The petitioners took up the matter before the Kerala Co-operative Tribunal. 5. The petitioners state that by Ext.P7 and similar orders, the Tribunal remanded the Arbitration Cases to the Arbitrator. According to the petitioners, the claims of the respondents are barred by limitation. 6. It is in the meanwhile, Ext.P8 proceedings were issued by the Authorised Officer of the Bank for taking over possession of the mortgaged properties. The petitioners would submit that Exts.P8 to P10 proceedings issued to the petitioners 1, 2 and 4 and similar proceedings issued to the ## **W.P.(C) No.8614 of 2024** **==> picture [14 x 9] intentionally omitted <==** 3[rd] petitioner are also barred by limitation in view of Section 36 of the SARFAESI Act read with Section 62 of the Limitation Act. Exts.P8 to P10 are therefore liable to be set aside by this Court, contended the Counsel for the petitioners. 7. Standing Counsel entered appearance on behalf of the respondents and resisted the writ petition. The Standing Counsel submitted that the Hon'ble Apex Court has already laid down the law that a Bank can resort to arbitration proceedings as well as securitisation proceedings for recovery of money due. Therefore, there is no illegality on the part of the respondent-Bank in resorting to arbitration proceedings as well as securitisation proceedings. The Standing Counsel vehemently denied the allegation made by the petitioners that the claim is barred by limitation. ## **W.P.(C) No.8614 of 2024** **==> picture [14 x 9] intentionally omitted <==** 8. I have heard the learned Counsel for the petitioners and the learned Standing Counsel representing the respondents. 9. The grievance of the petitioners is that the Bank has resorted to arbitration proceedings as well as the securitisation proceedings. Arbitration proceedings are in the nature of adjudicatory proceedings whereby the amount if any due from the petitioners will be computed by the Arbitrator. Securitisation proceedings are executory in nature. Without computing the amount due from the petitioners, if securitisation proceedings are initiated, that will cause irreparable damage to the petitioners. 10. The petitioners would further urge that in view of the order of the Co-operative Appellate Tribunal, the issue has been remanded to the Arbitrators and the claims of the Bank is barred by limitation. In such circumstances, it would ## **W.P.(C) No.8614 of 2024** **==> picture [14 x 9] intentionally omitted <==** be highly illegal for the respondents to resort to securitisation proceedings when the claim is barred by limitation. 11. It is to be noted that the Hon'ble Apex Court has held in the judgment in **Indiabulls Housing Finance Ltd. v. Deccan Chronicle Holdings Limited and others** [AIR 2018 SC (Supp) 856] that arbitration proceedings and securitisation proceedings can go together at the instance of a Bank. As far as the petitioners contention regarding the limitation of the claims made by the Bank, it is to be noted that what is challenged by the petitioners are proceedings initiated by the Bank under the SARFAESI Act. The specific challenge is against Section 13(4) notice. If the petitioners are aggrieved by Section 13(4) notice, the right royal remedy available to the petitioners is to approach the Debts Recovery Tribunal invoking Section 17 of the Act 2002. In ## **W.P.(C) No.8614 of 2024** **==> picture [14 x 9] intentionally omitted <==** the light of the above, I am of the view that no relief can be granted to the petitioners in this writ petition. The writ petition is therefore disposed of permitting the petitioners to approach the Debts Recovery Tribunal, if they have any grievance relating to the securitisation proceedings. Coercive proceedings against the petitioners shall stand deferred for a period of two weeks to enable the petitioners to approach the Debts Recovery Tribunal. The Tribunal, while computing the period of limitation, shall consider the pendency of the writ petition before this Court and consider the fact that the petitioners have been _bona fide_ prosecuting their claim before this Court by filing the above writ petition. Sd/- **N. NAGARESH JUDGE** ams ## **W.P.(C) No.8614 of 2024** :9: ## **APPENDIX OF WP(C) 8614/2024** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE PHOTOCOPY OF THE DEMAND NOTICE ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT DATED 23/10/2015 ISSUED TO THE 1ST PETITIONER** **Exhibit P2 A TRUE PHOTOSTAT COPY OF THE DEMAND DEMAND NOTICE ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT DATED 1/11/2017 ISSUED TO THE 1ST PETITIONER** - **Exhibit P3 A TRUE PHOTOSTAT COPY OF THE AWARD IN ARC NO. 610/2017 DATED 26/8/2020 ISSUED BY THE SPECIAL ARBITRATOR KERALA STATE CO-OPERATIVE BANK** - **Exhibit P4 A TRUE PHOTOSTAT COPY OF THE AWARD IN ARC NO. 612/2017 DATED 26/8/2020 ISSUED BY THE SPECIAL ARBITRATOR KERALA STATE CO-OPERATIVE BANK** - **Exhibit P5 A TRUE PHOTOSTAT COPY OF THE AWARD IN ARC NO. 609/2017 DATED 26/8/2020 ISSUED BY THE SPECIAL ARBITRATOR KERALA STATE CO-OPERATIVE BANK** - **Exhibit P6 A TRUE PHOTOSTAT COPY OF THE AWARD IN ARC NO. 611/2017 DATED 26/8/2020 ISSUED BY THE SPECIAL ARBITRATOR KERALA STATE CO-OPERATIVE BANK** - **Exhibit P7 A TRUE PHOTOSTAT COPY OF THE ORDER IN RP NO. 51/2021 DATED 22/12/2022 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM** - **Exhibit P8** - **A TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 31/1/2024** ## **W.P.(C) No.8614 of 2024** :10: **ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER** ## **Exhibit P9** **A TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 31/1/2024 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER** **Exhibit P10** **A TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 31/1/2024 ISSUED BY THE 4TH RESPONDENT TO THE 4TH PETITIONER**