Sajeev S. v. State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ``` WP(C) NO. 6358 OF 2024 ``` ## `PETITIONER:` ``` SAJEEV S. , AGED 55 YEARS S/O.SUKUMARAN,AMAL SADANAM, ALANCHERY, EROOR P.O, ALAYAMON, KOLLAM (FROM SOBHANA MANDIRAM, ALANCHERY), PIN - 691312 ``` ``` BY ADV A.R.DILEEP ``` ## `RESPONDENTS:` - `1 STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 NATIONAL HIGHWAY AUTHORITY OF INDIA REP. BY ITS CHAIRMAN, GG & SECTOR 10, DWARAKA, NEW DELHI, PIN - 110075` - `3 SPECIAL DEPUTY COLLECTOR (L.A, N.H) & COMPETENT AUTHORITY, COLLECTORATE, CIVIL STATION, KOLLAM, PIN - 691001` - `4 SPECIAL TAHSILDAR (L.A, N.H) ANCHAL, KOLLAM, PIN - 691306` - `5 STATE BANK OF INDIA , REPRESENTED BY ITS CHIEF MANAGER (MAINTENANCE) AND AUTHORISED OFFICER, RASMECC, LOTUS TOWER, KOTTARAKARA, KOLLAM, PIN - 691531` - `6 STATE BANK OF INDIA, ANCHAL BRANCH ANCHAL, KOLLAM, REPRESENTED BY ITS MANAGER., PIN - 691306 SRI.B.S.SYAMANTAK, GP, SRI.LEJO JOSEPH GEORGE FOR R2, SRI.SANTHOSH MATHEW FOR R5` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.6358/2024 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.6358 of 2024 ---------------------------------------------Dated this the 01[st ] day of March, 2024** ## **JUDGMENT** Petitioner is the proprietor of M/s. S.V.Traders and he is the absolute owner in possession of 12.14 Ares of property with a residential building therein in Resurvey No.143/5 in Block No. 35 of Alayamon Village in Punalur Taluk. It is submitted that the petitioner is residing in the said residential house in the property along with his family consisting of his wife and two children. It is also submitted that he has no other building to reside. 2. For the running of his business, the petitioner availed of a Cash Credit facility from the 6[th] respondent Bank. The said facility was availed of by creating security interest over the above said property with residential building by depositing the title deeds with the 6[th] WP(C).No.6358/2024 **3** respondent. Later the Cash Credit limit was enhanced to Rs.20 lakhs on 13.08.2012 is the submission. It is submitted that the petitioner was making regular payments to the cash credit account. But due to the Covid 19 pandemic, there occurred set back in his business and there was default in regular payment of the loan account. In order to tide over the difficulties in his business and for the repayment of the existing C.C. Account, the petitioner was sanctioned Funded Interest Term Loan during the year 2020 and Guaranteed Emergency Credit Line Loan. The said loans were also secured by the mortgaging the property of the petitioner. 3. It is submitted that the 2[nd] respondent vide notification published in the Gazette of India under Section 3A(1) of the National Highways Act, 1956 (for short, the NH Act) declared its intention to acquire the land specified in the schedule annexed to the said notification including the residential property of the petitioner under mortgage with the 6[th] respondent for building, maintenance, WP(C).No.6358/2024 **4** management and operation of National Highway-744 on the stretch of land from Km. 0 to Km.59.712, Aryankavu Kadampattukonam stretch of Shenkottai - Kollam Road, in the District of Kollam. Pursuant to the above notification published, as contemplated under S.3(A)(3) of the NH Act, and on the basis of report submitted by the competent authority before the Central Government, it was declared that the land specified in the schedule should be acquired for the aforesaid purpose as required under S.3D(1) of the NH Act. Ext.P1 is the relevant pages of the notification. It is submitted that as per S.3D(2) of the NH Act, on publication of the declaration under the S.3D(1), the land shall vest absolutely to the Central Government free from all encumbrances. It is submitted that the property of the petitioner under mortgage with the 6[th] respondent is figured as item No. 85 in the schedule as per Ext.P1. 4. It is submitted that as required by the 3[rd] respondent as per notice dated 25.03.2023, the petitioner appeared before him on 03.04.2023 and submitted all the WP(C).No.6358/2024 **5** documents in his possession pertaining to the property declared as under acquisition. Since the originals of the title document and prior document of the property are in the loan file, the petitioner produced a certificate dated 31.03.2023 obtained from the 5[th] respondent, before the 3[rd] respondent stating the said fact. It is submitted that while the proceedings under the NH Act were going on against the property of the petitioner, the petitioner received a notice under S.13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act), calling upon him to discharge in full the liabilities amounting to Rs.28,56,891/- as on 03.11.2023 with future interest. Ext.P5 is the notice. It is submitted that on receipt of Ext.P5 notice, the petitioner sent a reply to the 5[th] respondent, as evident by Ext.P6, stating interalia that the acquisition proceedings are going on with regard to the property in question. It is submitted that the petitioner sought deferment of further action, which was WP(C).No.6358/2024 **6** refused by the 5[th] respondent by communication dated 31.01.2024, stating that the Bank is bound to adhere to the time frame stipulated under the SARFAESI Act. Subsequently the petitioner was served with possession notice by the 5[th] respondent under Section 13(4) of the SARFAESI Act, as evident by Ext.P7. According to the petitioner, as per the scheme of the NH Act, on publication of the declaration under the S.3 D(1), the land shall vest absolutely to the Central Government free from all encumbrances. Therefore it is submitted that Exts.P5 and P7 are unsustainable. It is also submitted that initiation and continuation of proceedings against the petitioner under the SARFAESI Act is illegal and unsustainable. According to the petitioner, since the property of the petitioner now stands vested with the Central Government free from all encumbrances, respondents have no right to proceed under the SARFAESI Act. Hence this writ petition is filed with following prayers: i. declare that initiation of proceedings against the WP(C).No.6358/2024 **7** property of the petitioner having an extent of 12.14 Ares with a residential building therein in Resurvey No.143/5 (Sy.No.553/13/12 Alayamon Village in Pathanapuram Taluk) in Block No. 35 of Alayamon Village in Punalur Taluk in Kollam District by respondents 5 and 6 under the SARFAESI Act is without the authority of law and thus void. - ii. issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exts. P5 and P7 and quash the same; - iii. issue a writ of mandamus or any other appropriate writ, direction or order restraining the respondents 5 and 6 from taking any action in furtherance of Exts. P5 and P7 Notices; - iv. petitioner also prays that this Honourable Court may be pleased to dispense with the translation of the documents produced in the vernacular language; - v. issue such other further writ, direction or order as deemed fit and necessary in the circumstances; ## (SIC) 5. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the respective Standing Counsel appearing for respondents 2 and 5. WP(C).No.6358/2024 **8** 6. The counsel for the petitioner reiterated the contentions raised in the writ petition. The counsel also relied the judgment of the Apex Court in **Harbanslal Sahnia and another v. Indian Oil Corpn Ltd and Others** [AIR 2003 SC 2120] and also **Radha Krishna Industries v. State of Himachal Pradesh and Others** [(2021)6 SCC 771] to contend that, even though SARFAESI proceedings are initiated, this Court can interfere. The Standing Counsel appearing for the National Highway submitted that, if there are different claims for entitlement of compensation in connection with the acquisition, parties have to approach the competent authority in accordance with law and this Court may not interfere in such situation under Article 226 of the Constitution of India. 7. The Standing Counsel appearing for the Bank submitted that, this Court may not interfere in the SARFAESI proceedings initiated by the Bank. 8. This Court considered the contentions of the WP(C).No.6358/2024 **9** petitioner and the respondents. It is now settled by several decisions of the Apex Court that the jurisdiction of this Court is very limited when SARFAESI proceedings are initiated. Admittedly, SARFAESI proceedings are initiated and a notice under section 13(4) is already issued. In such circumstances, I am of the considered opinion that, this Court is not justified in interfering in a case in which SARFAESI proceedings are initiated. The petitioner has got alternative remedy. Even though in the decision cited by the petitioner, it is stated that, this Court can interfere even if there is alternative remedy, those are discretionary powers of this Court which has to be invoked considering the facts and circumstances of each case. 9. In this case, there are remedies to the petitioner under the NH Act and also as per the SARFAESI Act. In such circumstances, this Court need not interfere in the proceedings initiated by the National Highway authorities under the NH Act and also by the Bank under the SARFAESI Act. WP(C).No.6358/2024 **10** Therefore, there is no merit in this case and this writ petition is dismissed. JV/Sbna/ sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.6358/2024 **11** ## `APPENDIX OF WP(C) 6358/2024` ``` PETITIONER EXHIBITS Exhibit P1. A TRUE COPY OF RELEVANT PAGES OF THE GAZETTE OF INDIA EXTRAORDINARY PART II S.3 (II) DATED 20.03.2023 ``` ``` Exhibit P2A TRUE COPY OF NOTICE DATED 25.03.2023 ISSUED BY THE 3RD RESPONDENT ``` ``` Exhibit P3A TRUE COPY OF CHECK LIST ISSUED BY THE 3RD RESPONDENT ``` ``` Exhibit P4A TRUE COPY OF CERTIFICATE DATED 31.03.2023ISSUEDBYTHE5TH RESPONDENT ``` ``` Exhibit P5A TRUE COPY OF NOTICE DATED 03.11.2023 ISSUED BY THE 5TH RESPONDENT ``` ``` Exhibit P6A TRUE COPY OF REPLY DATED 26.12.2023 SENT BY THE PETITIONER TO THE 5TH RESPONDENT Exhibit P7A TRUE COPY OF POSSESSION NOTICE DATED 23.01.2024ISSUEDBYTHE5TH RESPONDENT ```