Prasanth Pambungal Sasidharan v. PNB Housing Finance Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **WA.No.2048 OF 2017** **AGAINST THE ORDER/JUDGMENT IN WPC 2325/2017 OF HIGH COURT OF KERALA** ## **APPELLANT/WRIT PETITIONER:** **PRASANTH PAMBUNGAL SASIDHARAN AGED 34 YEARS, S/O. SASIDHARAN 22/112, PAMBUNGAL HOUSE, KOODAPUZHA, CHALAKKUDY, THRISSUR - 680 307.** **BY ADV. SMT.E.V.MOLY** ## **RESPONDENT/RESPONDENT:** **PNB HOUSING FINANCE LTD KOCHI BRANCH AT 48/559C, 1ST FLOOR, R.P ARCADE,NEAR GOLD SOUK MALL, PONNURUNNI, VYTTILA, ERNAKULAM - 682 019, REP. BY ITS AUTHORIZED OFFICER.** **SRI.C.A.JOJO FOR RESPONDENT** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.2048 OF 2017 2 ## **JUDGMENT** ## **S.MANIKUMAR** Instant writ appeal is filed against the judgment dated 13.2.2017 in W.P.(C) No.2325/2017. The facts leading to the writ appeal are as follows: 2. Appellant herein is the writ petitioner in W.P.(C) No. 2325/2017. He had availed three housing loans from PNB Housing Finance Ltd., Ernakulam, the respondent herein. On default, the respondent initiated proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the property of the petitioner. Being aggrieved, petitioner has approached this court by filing W.P.(C) No. 2325/2017 vide judgment dated 13.2.2017, by which, the writ court ordered thus: - “(i) The total defaulted arrears in the three loans are said to be Rs.11,31,835/- as on 28.02.2017. - (ii) The respondent shall grant twelve monthly instalments for the repayment of the arrears, starting from 13.3.2017. - (iii) Recovery proceedings shall be kept in abeyance on condition that the remittances as per this order are made without any default. - (iv) On the petitioner making two defaults in repaying the installments as also the regular EMIs, the recovery steps initiated WA.No.2048 OF 2017 3 shall revive and continue. - (v) The respondent shall issue a statement of the future interest accrued on the defaulted arrears every three months and the same shall be paid along with the next month's instalment, as granted by this Court, after the satisfaction of the arrears, as the 13th instalment. - (vi) On the petitioner satisfying the entire arrears, as also the EMI's the recovery proceedings shall be unenforceable and the petitioner shall be permitted to satisfy the EMI as per the original agreement. - Writ petition is disposed of as above, making it clear that the respondent will be free to proceed with the recovery if the above conditions are not complied with.” 3. According to the appellant, pursuant to the impugned judment, appellant has remitted Rs.7,60,000/- and two installments are due. However, he is willing to pay the entire amount due to the bank by one time settlement by the end of March. Therefore, appellant seeks some more reasonable time to settle the entire liability. Hence, the instant writ appeal is filed. 4. Though Smt.Moly E.V., learned counsel for appellant, made submissions on the grounds made herein, we are not inclined to entertain the writ appeal, for the reason that, writ against the action of bank is not maintainable, when there is an efficacious alternative remedy provided under the SARFAESI Act, 2002. Reliance can be placed on a WA.No.2048 OF 2017 4 ## decision of the Hon'ble Supreme Court in **Authorised Officer, State Bank of Travancore and another v. Mathew K.C.** reported in (2018) 3 SCC 85. Relevant portions quoted by the learned counsel read as under: “15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by W.A.No.1958 OF 2019 : 6 : the High Court would have serious WA.No.2048 OF 2017 5 adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. 17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. WA.No.2048 OF 2017 6 18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :- “32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” ## 5. In **United Bank of India v. Satyawati Tondon and others** [(2010) 8 SCC 110], upon detailed consideration of the statutory scheme under the SARFAESI Act, availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Hon'ble Apex Court observed that a writ petition ought not to be entertained in view of the availability of an alternative statutory remedy, “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and WA.No.2048 OF 2017 7 the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” ## 6. In **Civil Appeal Nos.10243-10250 of 2018 [ICICI Bank Ltd.** **v. Umakanta Mohapatra and Others]** , by order dated 5.10.2018, the Hon'ble Apex Court reaffirmed the legal position that High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act. WA.No.2048 OF 2017 8 In the light of the above discussion and decisions, the instant appeal is dismissed. After the dismissal of the instant appeal, Smt.Moly E.V., learned counsel for appellant, seeks two weeks time to hand over the key of the property to the bank. Sri.C.A.Jojo, learned counsel for respondent bank is not agreeable to the same. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** smv **JUDGE**