Rajani v. State Bank of India and State Bank of India Asset Recovery Management Branch

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## **`WP(C) NO. 1161 OF 2024`** ## **`PETITIONER:`** ``` RAJANI AGED 45 YEARS W/O.SURESH.K, MADATHIL VEEDU, AMBIPURAM (PO), GOVINDARAJAPURAM, PALAKKAD DISTRICT, PIN – 678011 ``` ``` BY ADVS. P.S.ANISHAD LIMNA BHASKARAN VISHNU R. T.AJITH KUMAR VISHAL PAVITHRAN DONY C. JOSE ``` ## **`RESPONDENTS:`** - **`1 STATE BANK OF INDIA ENGLISH CHURCH ROAD, PALAKKAD DISTRICT, REPRESENTED BY ITS MANAGER, PIN - 678001`** ``` 2STATE BANK OF INDIA ASSET RECOVERY MANAGEMENT BRANCH, 1ST FLOOR, R.S.BUILDINGS, M.G.ROAD, ERNAKULAM, REP BY ITS MANAGER, PIN - 682011 ``` ## **`ADV. SRI.JITHESH MENON – STANDING COUNSEL`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.1161 of 2024 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 10[th] day of January, 2024 The petitioner has availed a Housing Loan for an amount of 35,93,000/ in the year 2017. When the petitioner defaulted₹ repayment, the Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Now, the Advocate Commissioner appointed under Section 14 of the Securitisation Act, has issued Ext.P1 notice threatening that the secured asset mortgaged by the petitioner will be taken possession off. 2. The petitioner states that if a reasonable time is granted to the petitioner, the petitioner will be able to clear the entire outstanding amount in 20 equal monthly instalments provided the respondents regularise the loan account. Unless this Court interfere in the matter and pass an interim order ``` WP(C) No.1161 of 2024 ``` ``` 3 ``` staying further proceedings pursuant to Ext.P1, the petitioner will be put irreparable loss and injury. 3. Standing Counsel entered appearance and resisted the writ petition. On behalf of the respondents, it is submitted that a Housing Loan and a Suraksha Loan was advanced to the petitioner in 2017, amounting to 35,93,000/-. On the₹ failure of the respondents to maintain the loan account, the loan account had to be declared as NPA in the year 2021 itself. Section 13 proceedings were initiated on 05.08.2021. The respondents have filed O.A No.641 of 2023 in the Debts Recovery Tribunal-I, Ernakulam. It is thereafter that the respondents have approached the Chief Judicial Magistrate Court under Section 14 of the Securitisation Act. 4. Today, the Advocate Commissioner and party are taking possession of the petitioner’s property. The total outstanding payable by the petitioner is 36,12,303/-. In the₹ circumstances, the writ petition is not maintainable, contended ``` WP(C) No.1161 of 2024 ``` ``` 4 ``` the Standing Counsel. 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 6. It is evident from the arguments that the loan of ₹35,93,000/- taken in the year 2017 fell into arrears and the loan account was declared as NPA in the year 2021. In the year 2021 itself the Bank resorted to proceed against the petitioner under Section 13 of the Securitisation Act. O.A No.641 of 2023 was filed in Debts Recovery Tribunal-I, Ernakulam in the year 2023. Ext.P1 lawyer notice was issued to the petitioner as early in the month of August, 2023. 7. Subsequently, the tenant, who is residing in the building sought to be taken over, approached this Court filing W.P.(C) No.34940 of 2023, which was dismissed by this Court permitting the tenant to approach the Tribunal. The tenant filed a Writ Appeal against the said judgment and the Writ ``` WP(C) No.1161 of 2024 ``` ``` 5 ``` Appeal was dismissed. It is thereafter that the petitioner is approaching this Court at the last instance. 8. It is settled law that no writ would lie against the proceedings initiated by a financial institution under the provisions of the SARFAESI Act. 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 SARFAESI Act at the instance of a defaulter since the statute provides for an efficacious alternate remedy. 9. 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 SARFAESI Act in view of the statutory remedy available under the said Act. 10. Following the judgment in _**Satyawati Tondon**_ (supra), a Division Bench of this Court in the judgment in ``` WP(C) No.1161 of 2024 ``` ``` 6 ``` _**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. 11. In _**South Indian Bank Limited v. Naveen Mathew Philip** [2023 (4) KLT 29]_ , the Apex Court held that 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. 12. 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. ``` WP(C) No.1161 of 2024 ``` ``` 7 ``` 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. However, it is made clear that the petitioner will be at liberty to approach the respondents for repossession of the building, if possession is taken over, or for settling the loan account. **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.1161 of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 1161/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` A TRUE COPY OF THE NOTICE ISSUED BY ADVOCATE COMMISSIONER ON THE BASIS OF MC.NO.414/2023 DATED 10.08.2023 ```