Sanjeev Charles v. India Bulls Housing Finance Ltd and The Authorized Officer, India Bulls Housing Finance Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** ## **WP(C) NO. 10347 OF 2021** ## **PETITIONER:** **SANJEEV CHARLES AGED 62 YEARS, S/O CHARLES, 7D, KOWDIAR MANOR, JAWAHAR NAGAR, TRIVANDRUM.** **BY ADV LIZA P.CHERIAN** ## **RESPONDENTS:** |**1**|**INDIA BULLS HOUSING FINANCE LTD**| |---|---| ||**M-62, FIRST FLOOR,**| ||**CONNAUGHT PLACE,**| ||**NEW DELHI,**| ||**REPRESENTED BY ITS AUTHORIZED OFFICER-110001.**| |**2**|**THE AUTHORIZED OFFICER**| ||**INDIA BULLS HOUSING FINANCE LTD,**| ||**M-62, FIRST FLOOR,**| ||**CONNAUGHT PLACE,**| ||**NEW DELHI-110001.**| ||**BY ADV SRI.MADHU RADHAKRISHNAN**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **15.09.2021, THE COURT ON 23.09.2021, DELIVERED THE FOLLOWING:** W.P.(C) No.10347 of 2021 2 ## **BECHU KURIAN THOMAS, J.** ## **----------------------------------------W.P.(C) No.10347 of 2021** **----------------------------------------** Dated this the 23[rd] day of September, 2021 ## **JUDGMENT** Petitioner challenges the notice issued by the Advocate Commissioner proposing to take possession of the properties created as security interest. A direction is also sought to conduct an auction of one of the properties and take possession of the residential building only thereafter, if required. 2. When the Advocate Commissioner appointed by the Chief Judicial Magistrate under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’), issued a notice to take possession of the security interest created by the petitioner in favour of the respondent financial institution on 12-04-2021, petitioner rushed to this Court, invoking jurisdiction under Article 226 of the Constitution of India. In an attempt to save the residential building of W.P.(C) No.10347 of 2021 3 the petitioner, it was pleaded that one of the security interests created was a landed property having a value of more than Rs.25 Crores while the liability of the petitioner to the respondents was only Rs.4 Crores and only a portion of the security interest was required to clear the entire liability. It was also pleaded that on an earlier occasion, the Advocate Commissioner had taken possession of the landed property of the petitioner and had brought the same for sale. However, since the auction could not be conducted, respondents have now proceeded against the residential building of the petitioner. 3. On 30-04-2021, when this writ petition came up for admission, an interim order was granted directing the respondents not to dispossess the petitioner from his residential apartment for a period of six weeks on condition that petitioner deposits an amount of Rs.15 lakhs within 30 days. When this case came up on 14-09-2021, it was submitted that petitioner had not complied with the condition as stipulated in the earlier order dated 30-04-2021. 4. Advocate Liza P. Cherian, the learned counsel for the petitioner, vehemently contended that the respondent bank can W.P.(C) No.10347 of 2021 4 proceed to recover the liability of the petitioner from the security interest created over one acre of property, which according to her, was situated in one of the prime localities of Thiruvananthapuram. She also sought a time of seven days for complying with the condition imposed on 30-04-2021. 5. In spite of the objections raised by the learned counsel for the respondent financial institution and persuaded by the impressive arguments of the counsel for the petitioner, this Court dictated an order in open court, granting seven more days from 14-09-2021 to comply with the condition imposed by this Court in its earlier order. 6. Though the aforesaid order granting time to the petitioner to comply with the condition was dictated in open court, during the course of the day, the learned counsel for the respondent bank submitted that, when the officials of the respondent bank went to the landed property to take possession, they found numerous obstructions existing over the property and hence requested for an urgent hearing on the matter. In view of the aforesaid submission, without signing the order granting extension of time, this case was W.P.(C) No.10347 of 2021 5 posted to the next day, i.e., 15-09-2021. 7. When the matter was taken up on 15-09-2021, petitioner filed I.A. No.2 of 2021 to accept additional documents, I.A. No.3 of 2021 to extend time for payment as directed in the order dated 30-04-2021, I.A. No.4 of 2021 to stay the notice issued by the Advocate Commissioner to take over possession of the property and I.A. No.7 of 2021 to accept additional documents, while the respondents filed I.A. No.5 of 2021 to vacate the interim order and I.A. No.6 of 2021 to accept documents. 8. In the above background and in view of the vehement objections of the respondents, this Court proceeded to consider the merits of the case and heard the arguments of Adv.Liza P. Cherian, the learned counsel for the petitioner as well as Adv.Madhu Radhakrishnan, the learned counsel for the respondents. 9. Apart from reiterating the contentions in the writ petition, the learned counsel for the petitioner submitted that the security interest created by the petitioner was several times more valuable than the total liability, and hence all properties need not be subjected to W.P.(C) No.10347 of 2021 6 dispossession or sale. It was further stated that the landed property of one acre situated in close proximity to an important institution in Thiruvananthapuram was more than sufficient to clear off the liabilities and hence, relying upon the decision in **Ambati Narasayya v. M.Subba Rao and Another** (AIR 1990 SC 119), it was canvassed that possession of both properties need not be taken and that it would suffice if the landed property alone is taken possession and sold and if any balance remains, the residential apartment of the petitioner can then be proceeded against. 10. On the other hand, the learned counsel for the respondents submitted that the petitioner has an efficacious remedy to approach the Debts Recovery Tribunal, challenging the measures taken to dispossess the petitioner and that it has been repeatedly held in numerous decisions that the High Courts shall not interfere under Article 226 of the Constitution of India in proceedings initiated under the Act. It was also submitted that several impediments have been created over the one acre of property by the petitioner himself and that the same will not fetch the value as alleged and no willing W.P.(C) No.10347 of 2021 7 purchaser will come forward to purchase it. Respondents further contended that it was the bank's prerogative to decide to proceed against all or any of the security interests created and the borrower has no right to dictate to the bank on this count. 11. I have considered the rival contentions. At this stage of the deliberations itself, it is noted that, petitioner had failed to comply with the condition ordered by this Court to deposit Rs.15,00,000/-, within 30 days from 30-04-2021. Petitioner did not even seek an extension of time within the period stipulated for complying with the condition. The petition for extension of time was filed only on 13-09-2021 as I.A. No.3 of 2021. In such circumstances, this Court finds that the conduct of the petitioner does not merit any indulgence or sympathy at the hands of this Court. 12. Be that as it may, in the decision reported in **Authorised Officer, State Bank of Travancore and Another v. Mathew K.C.** [(2018) 3 SCC 85] and in a catena of decisions, the Supreme Court has held that ordinarily, the relief under Article 226 or 227 of the Constitution of India is not available when an efficacious alternative W.P.(C) No.10347 of 2021 8 remedy is available to any aggrieved person. Similarly, in **United Bank of India v. Satyawati Tondon and Others** [(2010) 8 SCC 110] also the Supreme Court observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available under the SARFAESI Act. 13. In the latter of the decisions referred to above, it was observed as follows: “ _Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Art.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 Art.226 of the Constitution, a person must exhaust the remedies available under the relevant statute. It is a matter of serious_ W.P.(C) No.10347 of 2021 9 _concern that despite repeated pronouncements 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 Art.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_ ." 14. In yet another recent decision of this Court in **Green Valley** **Farms, Attapady and Another v. Syndicate Bank, Palakkkad Branch and Others** (2019 (5) KHC 960), it was reiterated that the High Court should not interfere in exercise of the extraordinary jurisdiction when a remedy under the statute is available. 15. The contention that one of the properties over which security interest was created alone is sufficient to clear the entire liabilities to the respondent bank, is a matter which the petitioner can ventilate before the Tribunal. In this context it may be apposite to observe that the respondent bank has produced photographs to show that, at the time when they attempted to take possession of the landed property, there were seemingly obstructions created on the W.P.(C) No.10347 of 2021 10 said land by strangers. Though the respondent bank has a contention that the obstructions were created at the behest of the borrower, the petitioner claims that he has no role in those obstructions created by the strangers. Petitioner has also filed an FIR as Crime No.1101 of 2021 against those trespassers. These are not matters for this Court to consider in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution. 16. In view of the above, I find that the challenge raised by the petitioner is not maintainable under Article 226 of the Constitution of India and no circumstances exist warranting an interference under the extraordinary jurisdiction of this Court. The writ petition is therefore dismissed. However, petitioner will be at liberty to raise all contentions before the jurisdictional Tribunal. ## **Sd/-** ## **BECHU KURIAN THOMAS** **JUDGE** vps W.P.(C) No.10347 of 2021 11 ## **APPENDIX OF WP(C) 10347/2021** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC 28483/2019 DATED 13.11.2019. EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 12.04.2021.** **Exhibit P3 THE TRUE COPY OF NOTICE ISSUED BY ASSISTANT COMMISSIONER OF SALE TAX.** **Exhibit P4 THE TRUE COPY OF ADVOCATE COMMISSIONERS NOTICE DATED 13-8-2021.** **Exhibit P5 THE TRUE COPY OF RELEVANT PAGE OF MANORAMA NEWSPAPER DATED 9-9-2021.** **Exhibit P6 THE TRUE COPY OF PAYMENT RECEIPT Exhibit P7 TRUE COPY OF THE FIR FROM THE HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, TRIVANDRUM DATED 03/09/2021** - **Exhibit P8 TRUE COPY OF THE PHTOGRAPH OF THE LANDED PROPERTY** **Exhibit P9 TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONER RECEIVING AWARD FROM HONOURABLE PRESIDENT OF INDIA** ## **RESPONDENT'S/S' EXHIBITS** **EXHIBIT R1(A)(B) PHOTOGRAPHS SHOWING THE TEMPORARY SHEDS (C)(D) IN THE SCHEDULE PROPERTY EXHIBIT R2 COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 14.9.2021**