Samuel Jacob and Jacob Samson v State Bank of India and SBI SARB Branch

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ## **`OP (DRT) NO. 234 OF 2022`** ``` ARISING OUT OF SA 316/2021 OF DEBT RECOVERY TRIBUNAL II, ERNAKULAM PETITIONERS: ``` ``` 1SAMUEL JACOB, AGED 31 YEARS S/O.JACOB SAMSON, PROPRIETOR, M/S.SAMSON & SONS LIFESTYLE, KANNIMATTOM, TC 3/678, T.K.D. ROAD, MUTTADA P.O., THIRUVANANTHAPURAM NOW RESIDING AT TC 95/1580(3) NANDANAM, PADINJATTIL LANE, MEDICAL COLLEGE P.O. TRIVANDRUM, PIN – 695011 2JACOB SAMSON, AGED 63 YEARS S/O SAMSON JACOB, KANNIMATTOM, TC 3/678, T.K.D. ROAD, MUTTADA P.O., THIRUVANANTHAPURAM - 695 025 NOW RESIDING AT TC 95/1580(3) NANDANAM, PADINJATTIL LANE, MEDICAL COLLEGE P.O. TRIVANDRUM - 695 011 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENTS:`** ``` 1THE STATE BANK OF INDIA, KERALA STATE LOCAL HEAD OFFICE, POOJAPPURA P.O., THIRUVANANTHAPURAM,PIN - 695012 REPRESENTED BY THE CHIEF GENERAL MANAGER, ``` ``` OP (DRT) NO. 234 OF 2022 ``` ``` 2 ``` ``` 2THE CHIEF MANAGER, THE STATE BANK OF INDIA, SARB BRANCH, THIRUVANANTHAPURAM, PIN – 695033 ``` ``` BY ADV ``` ``` ADV JAWAHAR JOSE-SC, SBI ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (DRT) NO. 234 OF 2022 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioners, who are being proceeded against, at the instance of the respondents, under the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, for realization of the amounts due to the respondents, have approached this Court seeking the following reliefs: - _“i. declare that Exhibit.P15 notice dated 22-02-2022 issued under Section 13 of the SARFAESI Act, 2002 read with Rules 8(6) is arbitrary and illegal._ - _ii. Call for the records leading to Exhibit. P15 notice dated 22-02-2022 issued under Section 13 of the SARFAESI Act, 2002 read with Ruels 8(6) and quash the same._ - _Iii. Direct the Hon’ble Debt Recovery Tribunal-II of Kerala, Ernakulam to take up S.A. No.316 of 2021 along with interlocutory applications and dispose-off the same expeditiously within a time limit to be fixed by this Hon’ble Court._ - _iv. Stay all proceedings pursuant to Exhibit.P15 notice dated 22-02-2022 issued under Section 13 of the SARFAESI Act, 2002 read with Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 pending disposal of the S.A. No.316 of 2021._ - _v. Issue such other order or direction as may be just and_ ``` OP (DRT) NO. 234 OF 2022 ``` ``` 4 ``` _necessary in the facts and circumstances of the case.”_ The 1[st] petitioner is the proprietor of M/s Samson and Sons Lifestyle, which is engaged in the business of sanitary items. The 1[st] petitioner availed a cash credit facility from the respondent bank, for an amount of Rs.1,25,00,000/- (Rupees one core and twenty five lakhs only) and a Medium Term Loan of Rs.1,25,00,000/- (Rupees one core and twenty five lakhs only) totalling to Rs.2,50,00,000/- (Rupees two crore and fifty lakhs only) as per the agreement dated 20.10.2015. The petitioners could not repay the said amount, as per the repayment schedule. Consequently, recovery proceedings were initiated against the petitioners and their properties, under the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. As part of the said proceedings, the secured assets were brought to sale vide Ext.P15 sale notice. The original petition was moved by the petitioner invoking the jurisdiction of this Court under Article 227 of Constitution of India mainly in view of the fact that, at the relevant time, the Debt Recovery Tribunal, before which the petitioners have the statutory remedy to challenge the aforesaid proceedings, was not sitting, ``` OP (DRT) NO. 234 OF 2022 ``` ``` 5 ``` due to want of Presiding Officer. 2. Today when the matter came up for consideration, the learned counsel appearing for the respondents submits that, the Debt Recovery Tribunal is now functioning and therefore, the petitioners can move the Tribunal for appropriate reliefs. It is also pointed out that, S.A. No.316/2021 submitted by the petitioners is pending before the DRT, and the relief which is sought in this writ petition, can be sought before the DRT by invoking their remedies. 3. After perusing the records, I find some force in the contention of the learned counsel for the respondents. As it is a fact that, the Securitisation Application submitted by the petitioners is pending consideration before the DRT, it is only proper that they move the DRT for appropriate relief, even in respect of the challenge against Ext.P15 notice. In such circumstances, I do not find any justification in entertaining the reliefs sought for in this original petition, as the petitioners is having alternate statutory remedies available in respect of the same. 4. At this juncture, the learned counsel for the petitioners ``` OP (DRT) NO. 234 OF 2022 ``` ``` 6 ``` further submits that, a direction may be issued to the Debt Recovery Tribunal II, Ernakulam to dispose of S.A. No.316/2021 along with its interlocutory applications as expeditiously as possible, as sought in relief No.iii of this original petition. The learned counsel for the petitioners also points out that they have submitted I.A. No.1/2023 seeking the details of the sale effected by the respondents, in respect of the primary securities and the collateral securities. As far as the relief sought in I.A No 1/2023 is concerned, I am of the view that, the petitioners can seek those prayers by filing appropriate petitions before the DRT in the pending Securitisation Application. With respect to relief No.iii of the petitioners, I am of the view that, the original petition can be disposed of directing the Debt Recovery Tribunal II, Ernakulam to dispose of S.A. No.316/2021 along with interlocutory applications and take a decision thereon as expeditiously as possible and it is ordered accordingly. Sd/- **`ZIYAD RAHMAN A.A. JUDGE`** scs ``` OP (DRT) NO. 234 OF 2022 ``` ``` 7 ``` ## **`APPENDIX OF OP (DRT) 234/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF NOTICE DATED 30-05-2016 Exhibit P2TRUE COPY OF NOTICE FOR SALE DATED 12-04- 2017 ISSUED BY THE BANK UNDER SARFAESI ACT. Exhibit P3TRUE COPY OF REPLY DATED 06-07-2017 PREFERRED BY THE 1ST PETITIONER , STATING THE REASONS FOR NON-PAYMENT Exhibit P4TRUE COPY OF LETTER DATED 11-07-2017 ISSUED BY THE BANK, REJECTING EXHIBIT.P3 REQUEST OF THE 1ST PETITIONER Exhibit P5TRUE COPY OF LETTER DATED 10-08-2017 SENT BY THE 1ST PETITIONER TO THE ADVOCATE COMMISSIONER, POINTING OUT THE ILLEGALITIES COMMITTED BY THE BANK IN THE PROCEDURE ADOPTED FOR SALE Exhibit P6TRUE COPY OF REPRESENTATION DATED 07-07- 2018 SUBMITTED BY THE MOTHER OF THE 1ST PETITIONER ADDRESSED TO THE 2ND RESPONDENT, REQUESTING FOR RELEASE OF ONE FLAT Exhibit P7TRUE COPY OF SALE NOTICE DATED 12-02-2020 ISSUED BY THE RESPONDENTS Exhibit P8TRUE COPY OF ENCUMBRANCE DATED 16-08-2021 Exhibit P9TRUE COPY OF REPLY DATED 30-09-2021 ISSUED BY THE RESPONDENTS, INFORMING THAT THE FLAT ALONG WITH THE UNDIVIDED SHARE HAS BEEN SOLD TO ONE MR.MUHAMMED HUSSAIN Exhibit P10TRUE COPY OF SALE CERTIFICATE DATED 12- 06-2020, ISSUED BY THE RESPONDENTS Exhibit P11TRUE COPY OF NOTICE FOR SALE DATED 01-11- 2021 ISSUED BY THE RESPONDENTS Exhibit P12TRUE COPY OF S.A.NO.316 OF 2021 BEFORE THE DEBTS RECOVERY TRIBUNAL II, ERNAKULAM FILED BY THE PETITIONERS ALONG WITH SMT.LALITHA AND MR.JOHN JACOB Exhibit P13TRUE COPY OF LETTER DATED 13-01-2022 ISSUED BY THE RESPONDENTS, INFORMING THE PETITIONERS ABOUT SBI OTS SCHEME 2021 FOR SETTLEMENT ``` ``` 8 ``` ## **`OP (DRT) NO. 234 OF 2022`** ``` Exhibit P14TRUE COPY OF REPLY DATED 20-02-2022 ISSUED BY THE 1ST PETITIONER, REQUESTING THE RESPONDENTS TO COMMUNICATE THE DETAILS WITH REGARDS TO THE SALE PROCEEDS OBTAINED BY THEM IN SELLING TWO PROPERTIES AS AFOREMENTIONED ``` - `Exhibit P15 TRUE COPY OF NOTICE FOR SALE DATED 22-022022 ISSUED BY THE RESPONDENTS, FOR SELLING THE PROPERTY MORTGAGED BY THE 2ND PETITIONER` ``` Exhibit P16TRUE COPY OF VALUATION REPORT DATED 13- 11-2013, SHOWING VALUATION OF THE PROPERTY ``` ``` Exhibit P17TRUE COPY OF VALUATION REPORT DATED 13- 11-2013, SHOWING VALUATION OF THE PROPERTY ```