P.M. Jacob & Leelamma Jacob v. Union of India & others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 ## WP(C) NO. 26384 OF 2023 ## PETITIONERS: - 1 P.M JACOB, AGED 82 YEARS, S/O AYPE MATHEN, POOVANNAMMOOTTIL, HOUSE,TB. JN, PUNALUR. REPRESENTED BY HIS DAUGHTER AND NEXT FRIEND HONEY TONY,W/O TONY CHERIAN, AGED 43 YEARS, CHERUKOTH HOUSE, UDAYAMPERUR P.O, THRIPUNITHRA, ERNAKULAM DISTRICT, KERALA, PIN – 682307 - 2 LEELAMMA JACOB, AGED 76 YEARS, W/O P.M JACOB, POOVANNAMMOOTTIL, HOUSE, TB. JN, PUNALUR. REPRESENTED BY HER DAUGHTER AND NEXT FRIEND HONEY TONY,W/O TONY CHERIAN, AGED 43 YEARS, CHERUKOTH HOUSE, UDAYAMPERUR P.O, THRIPUNITHRA, ERNAKULAM DISTRICT, KERALA, PIN – 682307 ## BY ADV P.M.SANEER ## RESPONDENTS: - 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, DEPARTMENT OF SOCIAL JUSTICE, SHASTRI BHAVAN,DR.RAJENDRA PRASAD ROAD, NEW DELHI, PIN – 110001 - 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY DIRECTORATE OF SOCIAL JUSTICE 5TH FLOOR, VIKAS BHAVAN, PMG, TRIVANDRUM, KERALA, PIN – 695033 - 3 THE DISTRICT COLLECTOR, KOLLAM DISTRICT CIVIL STATION ROAD, KAANKATHU MUKKU, KOLLAM, KERALA, PIN – 691013 - 4 THE RESERVE BANK OF INDIA, REPRESENTED BY ITS SECRETARY, 16TH FLOOR, CENTRAL OFFICE BUILDING, SHAHID BHAGAT SINGH MARG, MUMBAI, MAHARASHTRA, PIN – 400001 - 5 THE AUTHORISED OFFICER/CHIEF MANGER THE SOUTH INDIAN BANK, REGIONAL OFFICE, YWCA BUILDING MG ROAD, STATUE, THIRUVANATHAPURAM, PIN – 695014 WP(C)NO.26384 OF 2023 :: 2 :: - 6 THE SOUTH INDIAN BANK, REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, TRICHUR, PIN – 680001 - 7 THE REGIONAL MANAGER, REGIONAL OFFICE, SOUTH INDIAN BANK, YWCA BUILDING, M.G ROAD, STATUE, THIRUVANANTHAPURAM, PIN – 695014 - 8 THE BRANCH MANAGER, THE SOUTH INDIAN BANK, PATHANAPURAM BRANCH PATHANAPURAM, KOLLAM DISTRICT, PIN – 689695 - 9 SMT. HARIPRIYA A H, ADVOCATE COMMISSIONER OFFICE: ROOM NO 4, AMMA VEETTIL BUILDINGS,EAST OF CIVIL STATION, KOLLAM, PIN – 691013 - 10 SHINE P JACOB, S/O P.M JACOB, AGED 52 YEARS, POOVANNUMMOOTTIL HOUSE, T B JUNCTION, PUNALUR P.O, KOLLAM DISTRICT,KERALA, PIN - 691305 ## SRI.SUNIL SHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.26384 OF 2023 :: 3 :: ## JUDGMENT Dated this the 10[th] day of August 2023 The writ petition is filed, inter alia, to direct the respondents not to remove the petitioners from the house shown as item No.1 in Ext.P3 notice. 2. The petitioners have averred in the writ petition that, the second petitioner is the wife of the first petitioner. The first petitioner is 82 years and is seriously ill, unconscious and in comatose for the last three years. The second petitioner is 76 years of age, bedridden and has memory-loss. The petitioners are represented through their daughter and next friend. The 10[th] respondent, their son, is married and is leading an independent life. The 10[th] respondent was doing business in sale of used cars, he is rich and has extensive properties in his name. On 6.7.2023, the respondents 8 and 9 along with few others handed over WP(C)NO.26384 OF 2023 :: 4 :: Ext.P3 notice and threatened to take physical possession of the petitioners’ residential building. The petitioners had given a share to the 10[th] respondent, but he has no right over the residential building in item No.1 in Ext.P3 notice. Again on 25.7.2023, the respondents 8 and 9 went to the petitioners’ residence and threatened to remove them. By Ext.P4 judgment, this Court has permitted a senior citizen to reside in the house till the finalization of the auction. The SARFAESI proceedings initiated by the 5[th] respondent is illegal. The Hon'ble Supreme Court in Mardia Chemicals Ltd. v. Union of India [(2004) SCC 316] has laid down the importance of Sectin 13(2) notice. The 1[st] petitioner was in an unconscious state has not received any notice. Affixing notice is not proper service of notice. The 10[th] respondent - the principal debtor has offered commercial properties, shown as item No.2 in Ext.P3 notice, as security, which will fetch more than Rs.15/- WP(C)NO.26384 OF 2023 :: 5 :: crore. The 5[th] respondent in collusion with the 9[th] respondent are taking steps to remove the petitioners from their property. It is well settled in a catena of decisions that financial institutions have to act in good faith and in a fair manner. The debt due to the respondent bank can be realized by recovering the amount from the commercial property of the principal debtor. Hence, the writ petition. 3. Heard; Sri.P.M.Saneer, the learned counsel for the petitioners and Sri.Sunil Sankar, the learned counsel appearing for the respondents 5 to 8 and the learned Government Pleader appearing for respondents 2 and 3. Notice to the other respondents is dispensed with. 4. Sri.P.M.Saneer reiterated the contentions in the writ petition. He placed emphasis on Ext.P4 judgment and contended that this Court had permitted the petitioner therein to reside in his residential building WP(C)NO.26384 OF 2023 :: 6 :: till the auction was finalized. He also handed over a copy of the judgment in W.A.1868/2018, confirming Ext.P4 judgment. He prayed that the respondents may be directed to defer further proceedings to enable the petitioners to continue to reside in item No.1 in Ext.P3 notice. 5. Sri.Sunil Sankar vehemently resisted the writ petition. He argued that the writ petition is a sheer abuse of process of law and is filed in collusion with the petitioners and the 10[th] respondent – their son. He contended that, the tenth respondent has challenged the recovery proceedings by filing S.A.50/22 before the Debt Recovery Tribunal, Ernakulam. The application to stay the recovery proceedings was dismissed by the Tribunal. The tenth respondent had challenged the order in OP(DRT) No.166/22 before this Court, but the same was also dismissed. Thereafter, when the respondents 5 to 8 issued a fresh possession notice, the WP(C)NO.26384 OF 2023 :: 7 :: 10[th] respondent filed a fresh stay petition before the Tribunal, which was again dismissed. Then the 10[th] respondent filed O.P.(DRT)301/23 before this Court, which has been disposed of, by directing the 10[th] respondent to approach the Debt Recovery Appellate Tribunal. In fact, this Court has stayed the recovery proceedings till 21.8.23 and has directed the Appellate Tribunal, to consider the stay petition. The petitioners have been adopting a wait and watch policy and have filed the writ petition only to insulate the interest of their son. Hence, the writ petition may be dismissed. 6. The petitioners allege that they are sick and bedridden, and have not been served with any notice as prescribed under the law. Moreover, the 10[th] respondent has offered sufficient security by way of item No.2 in Ext.P3 notice, which is more than sufficient to wipe off the entire liability. Hence, the WP(C)NO.26384 OF 2023 :: 8 :: respondents 5 to 8 may be directed not to proceed against the petitioners’ residential building. 7. On an appreciation of the pleadings and materials on record, particularly Ext.P3 notice, it can be gathered that the first petitioner is a guarantor to the loan availed by the 10[th] respondent. The first petitioner has voluntarily deposited the title deeds of his property as collateral security in favour of the respondents 5 to 8. 8. At the time of creating the collateral security, the first petitioner was in a proper state of mind. Ext.P3 notice was issued on 24.01.2022. The present writ petition has been filed only on 04.08.2023. This fact establishes that the petitioners were adopting a watch and wait policy of the legal proceedings initiated by the 10[th] respondent. It is after the stay petitions filed by their son was dismissed by the Tribunal, that the petitioners have filed the writ petition. In any case, WP(C)NO.26384 OF 2023 :: 9 :: the recovery proceedings have been stayed by this Court till 21.08.2023. Thus, the petitioners have ample time to challenge the proceedings as per the procedure laid down under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, ‘Act’). 9. The Hon’ble Supreme Court in South Indian Bank Ltd vs. Naveen Mathew Philip [2023 LiveLaw (SC) 320], after adverting to a host of earlier judicial pronouncements rendered under the Act, has categorically held that the High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act, in writ proceedings under Article 226 of the Constitution of India. 10. On an overall consideration of the pleadings and materials on record, and the findings rendered above, particularly the fact that proceedings are pending consideration before the Tribunal challenging WP(C)NO.26384 OF 2023 :: 10 :: Ext.P3 notice, I do not find any extraordinary circumstances to entertain the writ petition by exercising the plenary powers of this Court under Article 226 of the Constitution of India. Resultantly, the writ petition is dismissed, without prejudice to the right of the petitioners to work out their statutory remedies, in accordance with law. sd/C.S.DIAS JUDGE jes WP(C)NO.26384 OF 2023 :: 11 :: ## APPENDIX ## PETITIONER’S EXHIBITS: Exhibit P1 A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY ANANTHAPURI HOSPITALS AND RESEARCH INSTITUTE THIRUVANANTHAPURAM. Exhibit P2 A TRUE COPY OF THE SCAN REPORT ISSUED BY THE VIJAYA HOSPITAL KOTTARAKARA DATED 16/5/2023. Exhibit P2 A TRUE COPY OF THE MEDICAL RECORDS OF THE 2ND (A) PETITIONER. Exhibit P3 A TRUE COPY OF THE NOTICE DATED 24/01/2022 OF THE 5TH RESPONDENT. Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED 12/04/2018 IN WP(C).NO.826 OF 2018 (NEUTRAL CITATION: 2018: KER: 21015) OF THIS HON'BLE COURT.