Praveen C.P. v. The Authorized Officer, Zonal Manager, State Bank of India, Ernakulam; Hemarajan; K.P. Ajithkumar; Ratnavalli; Rani Balan; Latha Haridas; L. Babulal Jain; V. Padmakumar; The Sub Registrar, Office of the Sub Registrar, Chathamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **WA.No.300 OF 2017** **AGAINST THE JUDGMENT IN WPC 4537/2007 DATED 13-10-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **PRAVEEN C.P., CHERUKUNNUMMEL POOTHAKANDI, KUNNAMANGALAM P.O., KOZHIKODE. BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT/S:** |**1**|**THE AUTHORISED OFFICER,**| |---|---| ||**ZONAL MANAGER, STATE BANK OF INDIA, M.G. ROAD**| ||**BRANCH, ERNAKULAM-682011.**| |**2**|**HEMARAJAN,**| ||**S/O. K.P. GOPALAN, RATNA MAHAL,**| ||**KUNNAMANTGALAM, KOZHIKODE-673571.**| |**3**|**K.P. AJITHKUMAR,**| ||**S/O. K.P. GOPALAN, RATNA MAHAL,**| ||**KUNNAMANTGALAM, KOZHIKODE-673571.**| |**4**|**RATNAVALLI,**| ||**W/O. K.P. GOPALAN, RATNA MAHAL,**| ||**KUNNAMANTGALAM, KOZHIKODE-673571.**| WA.No.300 OF 2017 ..2.. - **5 RANI BALAN, W/O. BALAN, PRATHEEKSHA, 4/57, THEKKUVEETTIL LINE, KANNUR ROAD, KOZHIKODE.** - **6 LATHA HARIDAS, W/O. HARIDAS, VASISTHALAYAM, OLD RAILWAY STATION ROAD, ERNAKULAM.** - **7 L. BABULAL JAIN, S/O. LALCHAND, R15 NO. MANIKANDA STREET, SOUTH ARCOT, CHENNAI, TAMIL NADU-605051.** - **8 V. PADMAKUMAR, S/O. P. VELAYUDHAN NAIR, 42, AMRITHA, P.O. CHELAVOOR, KOZHIKODE-673571.** - **9 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, CHATHAMANGALAM, KOZHIKODE-673601.** **R1 BY ADV. SRI.GEORGE THOMASMEVADA, SC, SBI R8 BY ADV. SRI.JOSEPH SEBASTIAN** ## **OTHER PRESENT:** **SRI.AMAL GEORGE, REPRESENTING SRI.GEORGE THOMAS MEVADA SC FOR R1** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.300 OF 2017 ..3.. ## **J U D G M E N T** ## S.Manikumar, CJ. ## Instant writ appeal arises out of a judgment dated 13.10.2016 in WP(C) No. 4537 of 2007, operative portion of which reads thus: “6. However, as the statutory remedy is pointed out, though at the belated stage, it is only appropriate that the petitioner is allowed to approach the D.R.T under section 17 of the SARFAESI Act. In the above circumstances, the petitioner is permitted to seek his remedies under section 17 of the SARFAESI Act before the D.R.T and the D.R.T shall entertain the appeal, in case the petitioner submits the appeal within a period of one month from the date of receipt of a copy of the judgment. Till then, the interim order passed by this court on 12.02.2007 shall continue.” 2. We do not find any error in the above said judgment for the reason that notice issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 can be challenged under Section 17 of the said Act, which reads thus: ## “ **17. Application against measures to recover secured debts** (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed to WA.No.300 OF 2017 ..4.. the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: PROVIDED that different fees may be prescribed for making the application by the borrower and the person other than the borrower. (1A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction- (a) the cause of action, wholly or in part, arises; (b) where the secured asset is located; or (c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being. (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restroration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,- (a) declare the recourse to any one or more measures referred to in sub-section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or WA.No.300 OF 2017 ..5.. management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under subsection (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt. (4A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,- - (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause WA.No.300 OF 2017 ..6.. (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) or clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. (5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application: PROVIDED that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1). (6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder.” 3. Apart from the above, writ court has also considered a WA.No.300 OF 2017 ..7.. ## decision of the Hon'ble Supreme Court in **United Bank of India** v. **Satyawati Tondon** [(2010) 8 SCC 110], wherein the Hon'ble Apex Court held thus: “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 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.” There is no error in the impugned judgment warranting interference. WA.No.300 OF 2017 ..8.. Writ appeal is dismissed accordingly. Appellant is granted two weeks' time to file an application under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Debt Recovery Tribunal. **Sd/-** ## **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **A.M.SHAFFIQUE** **JUDGE** Bka/02.12.2019