Shefin S. Yoosaf v. Indian Bank & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, ``` ## **`1945`** ## **`WP(C) NO. 26208 OF 2023`** ## **`PETITIONER/S:`** ``` SHEFIN S. YOOSAF AGED 24 YEARS S/O. SHAJAHAN YOOSAF SAHIB PROPRIETOR, AL-SHIFA SUPER SPECIALITY HOSPITAL FOR PILES 50/150-F, EETTICKAL HOUSE, SRI NARAYANA ROAD EDAPPALLY P.O., ERNAKULAM, PIN - 682024 ``` ``` BY ADVS. K.SUJAI SATHIAN PREETHI. P.V.(K/1819/1999) M.V.BALAGOPAL(K/707/2009) MARY LIYA SABU(K/001533/2018) GOURI MEEMPAT(K/001516/2021) SANGEETHA SREEKUMAR(K/2099/2022) T.SETHUMADHAVAN (SR.)(S-310) ``` ## **`RESPONDENT/S:`** ``` 1INDIAN BANK, REPRESENTED BY ITS BRANCH MANAGER, KALAMASSERY BRANCH, 1ST FLOORAKKM TOWERS, CUSAT JN.,SOUTH KALAMASSERY, ERNAKULAM, PIN - 682022 ``` ``` 2AUTHORIZED OFFICER AND CHIEF MANAGER, INDIAN BANK ,STRESSED ASSET MANAGEMENT BRANCH,4TH FLOOR, RAM MEENA BUILDINGS,VALANJAMBALAM, ERNAKULAM, PIN - 682016 ``` - `3 CHAIRMAN, COMMITTEE FOR STRESSED MICRO, SMALL & MEDIUM` ## W.P.(C) Nos.26208 of 2023 ..2.. ``` ENTERPRISES,STRESS ASSET MANAGEMENT BRANCH, 4TH FLOOR INDIAN BANK, RAM MEENA ``` ``` BUILDINGSVALANJAMBALAM, ERNAKULAM, PIN - 682016 ``` - `4 UNION OF INDIA, REPRESENTED BY SECRETARY, DEPARTMENT OF BANKING, MINISTRY OF FINANCE 3RD FLOOR, JEEVAN DEEP BUILDING SANSAD MARG, NEW DELHI, PIN - 110001` - `5 MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES, REPRESENTED BY SECRETARY,UDYOG BHAWAN, RAFI MARG,NEW DELHI, DELHI, PIN - 110001` - `6 RESERVE BANK OF INDIA, REPRESENTED BY ITS GOVERNOR,CENTRAL OFFICE BUILDING, SHAHED BHAGAT SINGH ROAD,MUMBAI, PIN - 400001` - `7 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY ,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001` - `*8 BENZIR HUSSAIN, S/O. A.M. ABOOBACKER, ANJIKKATHU HOUSE, THRIKKAKKARA TEMPLE,THRIKKAKKARA P.O., THRIKKAKKARA NORTH (PART), ERNAKULAM,` - `*9 ANWAR HASSAIN` - `S/O.A.M. ABOOBACKER, ANJIKKATHU HOUSE, PIPELINE JUNCTION,NEAR K M M COLLEGE, THRIKKAKKARA P.O., THRIKKAKKARA NORTH (PART), ERNAKULAM` - `ADDITIONAL RESPONDENTS 8 AND 9 ARE IMPLEADED AS PER ORDER DATED 12.10.2023 IN I.A.NO.1/2023` ``` BY ADVS. ``` - `S.EASWARAN,SC ADARSH KUMAR` - `K.M.ANEESH` - `K.SANTHOSH KUMAR (KALIYANAM)` ``` DILEEP CHANDRAN ``` ``` SHASHANK DEVAN ``` W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** The petitioner is the proprietor of M/s Al-Shifa Hospital at Edappally, Ernakulam. The petitioner availed a credit facility of Rs.983.22 lakhs from respondent No.1 (The Indian Bank, Kalamassery Branch), mortgaging immovable properties. 2. Respondent No.3 is the Chairman, the Committee for Stressed Micro, Small and Medium Enterprises. Respondent Nos.4 and 6 are the Union of India and the Reserve Bank of India, respectively. The State of Kerala is impleaded as respondent No.5. 3. The petitioner - proprietorship enterprise is a micro service enterprise covered by the Micro, Small and Medium Enterprises Development Act, 2006 ('the MSMED Act' for short). The enterprise obtained registration as per the scheme framed under the MSMED W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** Act. The petitioner committed default in repaying the credit facility availed from the respondent - Bank. The Bank classified the petitioner’s loan account as NonPerforming Asset on 21.03.2021 and initiated recovery proceedings by issuing notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (‘the SARFAESI Act’ for short) on 04.05.2021. 4. A demand notice dated 03.08.2021 was issued to the petitioner by the Bank. A possession notice was served on him on 26.10.2021, and sale notice was also issued on 21.12.2021. The petitioner submitted an application in accordance with Notification S.O.1432(E) dated 29.05.2015 for the revival and rehabilitation of MSME issued by the Ministry of Micro Small and Medium Enterprises (Ext.P2). The Bank hastily proceeded under the provisions of the SARFAESI Act before considering the representation made by the petitioner. The Bank put W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** the hospital to sale. The petitioner instituted SA No.270/2021 before the DRT-I, Ernakulam, challenging the possession notice. In the meantime, respondent No.2 issued sale notice dated 21.12.2021 for recovery of the total liability of Rs.10,51,26,251.76/-. However, since there was no Presiding Officer in the DRT-I, Ernakulam, the petitioner approached this Court by filing OP(DRT) No.67/2022. This Court dismissed the Original Petition as not maintainable as per judgment dated 09.06.2023, granting liberty to the petitioner to prosecute the matter in S.A.No.270 of 2021. In the meantime, the Bank filed M.C.No.52/2022 before the Additional Chief Judicial Magistrate’s Court, Ernakulam, for appointing an Advocate Commissioner for taking physical possession of the property. The Court of the Additional Chief Judicial Magistrate appointed a Commissioner to take physical possession of the property. The petitioner filed an application to recall that order. The learned Magistrate W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** dismissed that application. After that, the petitioner approached the Civil Court by filing O.S.No.558/2023, seeking the relief of injunction against the Bank. ## **The pleadings set up by the petitioner** 5. The petitioner's enterprise is a micro service enterprise within the meaning of Section 7 of the MSMED Act, 2006 and therefore, it is entitled to the protection under Ext.P2 notification (S.O.1432(E)) dated 29.05.2015 issued by the Ministry of Micro Small and Medium Enterprises for revival and rehabilitation. The banks and financial institutions are duty-bound to extend the MSME borrowers the benefit of the ‘framework for resolution of stress’ as provided in the notification. The said benefit was denied to the petitioner. No account of an MSME can be classified as NPA without identifying the incipient stress. The Bank could not have classified the account of the petitioner as NPA and invoked the provisions of the SARFAESI Act so long as the enterprise is entitled to the W.P.(C) Nos.26208 of 2023 **==> picture [20 x 9] intentionally omitted <==** benefit of Ext.P2 notification. As per the notification, the banks and financial institutions are duty-bound to constitute committees for Stressed Micro, Small and Medium Enterprises tasked to ensure that no MSME unit undergoing incipient stress suffers from business failure. The decisions of the Committee are binding on banks and financial institutions. The corrective action plan recommended by the Committee shall also be binding on the lenders and other stakeholders. The Committee under the MSMED Act is primarily a Committee where the bank has predominance. The MSMED Act is a later law and a special law in relation to the SARFAESI Act and therefore it will prevail over the SARFAESI Act. 6. Since there is no alternative Forum or Tribunal under the MSMED Act, the inter se rights, obligations and remedies recognized under the Act are subject to the jurisdiction of the Civil Court, and therefore, the jurisdiction of the Civil Court is not ousted. W.P.(C) Nos.26208 of 2023 ..9.. ## **The pleadings set up by the respondent Bank** 7. The Writ Petition is not maintainable. The petitioner has deliberately suppressed material facts. While S.A.No.270 of 2021 was pending before the DRT, Ernakulam, the petitioner had approached this Court by filing O.P.(DRT) No.67/2021, resulting in Ext.P11 judgment. After that, the petitioner approached DRT, Ernakulam and sought amendments in the Securitization Application, raising contentions exactly similar to the ones raised in this writ petition. The petitioner never attempted to move the Tribunal with the application seeking amendment. The petitioner has suppressed the pendency of the application seeking amendment in the Securitization Application while preferring this Writ Petition. Without pursuing the relief sought for in the Securitization Appliation, the petitioner approached this Court on 07.08.2023. The property of the petitioner was sold on 21.09.2023. The petitioner was aware of the sale W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** notice dated 30.08.2023 served on him. The petitioner had attempted to raise the issue raised in this writ petition earlier before this Court by moving I.A.No.2/2023 in O.P.(DRT) No.67/2021 seeking amendment in the Writ Petition. This Court did not entertain the same, which is evident from Ext.P11 judgment. 8. The petitioner originally prayed for the following reliefs in the writ petition:- (a) declare that the Petitioner is an MSME within the meaning of the MSMED Act of 2006 and Ext. P2/notification issued by the Central Government under Section 9 thereof, as also the circulars and guidelines issued by the Reserve Bank of India under Section 10 thereof, which provides for a mechanism of resolution of stress and that no proceedings for recovery under the SARFAESI Act, RDB Act or the IBC will lie, in as much as the MSMED Act being a special law qua the aforesaid Acts, and a later law in relation to the RDB Act and the SARFAESI Act, its provisions will prevail over the aforesaid enactments; (b) declare that the MSME Act in so far as it has not created a special forum/tribunals to enforce the interse rights and obligations/remedies, which it has created in addition to those rights/ obligations/ remedies recognized by the common law, the jurisdiction of the Civil Court is not ousted, for it is impossible to oust the jurisdiction of the Civil Court without providing for an alternative forum/tribunal to adjudicate the inter se disputes between parties who are governed by the Act; W.P.(C) Nos.26208 of 2023 ..11.. (c) declare that the Petitioner is entitled to be compensated by respondent Nos. 1 to 3 for the loss and injury, which it has suffered on account of the gross breach of trust, culpable negligence, and malicious and tortious action at the hands of the respondent-bank and its officers, which loss and injury far exceeds the very claim of the Bank as against the petitioner, and therefore, no amount is due to the Respondents 1 to 3 by the petitioner, and the Respondents 1 to 3 have no enforceable rights as against the petitioner; (d) declare that the guidelines and notifications issued by the Reserve Bank of India from time to time empowering the bank and financial institutions to declare a borrower as a willful defaulter is without authority of law and further that the Plaintiffs, nay a borrower is not liable to the declared as a willful defaulter except by authority of an act of Parliament or statutory instrument having the force of law; (e) issue a writ of certiorari calling for the records leading to the issuance of Exts. P4 to P6, P12, P13, and quash them as illegal; (f) grant a perpetual mandatory and prohibitory injunction restraining and prohibiting respondent Nos. 1 to 3, their agent, servants, officers, representatives and/or anyone from taking any action for recovery under any law whatsoever in respect of the properties referred to in the notice issued under Section 13(2) of the SARFAESI Act, or in any manner interfere with the Petitioner’s peaceful possession and enjoyment of the said properties; (g) Grant such other reliefs which are appropriate and incidental to this proceeding and which this Hon’ble Court deems fit and proper. W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** ## **Submissions** 9. The learned Senior Counsel Sri.T. Sethumadhavan fairly submitted that in view of the declaration of law by the Supreme Court in **Kotak Mahindra Bank Ltd v. Girnar Corrugators Pvt. Ltd** [(2023) 3 SCC 210] the SARFAESI Act will prevail over the MSMED Act. The learned Senior Counsel submitted that the petitioner is not pressing the reliefs based on the pleadings originally set up. The learned Senior Counsel further conceded that the Writ Petition challenging the proceedings under the SARFAESI Act is not maintainable in view of the declaration of law by the Supreme Court in **South Indian Bank Ltd. and others v. Naveen Mathew Philip and others** [2023 SCC Online SC 435] : [2023 (4) KLT 29 (SC)] **and Celir L.L.P. v. Bafna motors (Mumbai) Pvt. Ltd** [2023 (5) KLT 599 (SC)]. The learned Senior Counsel confined his arguments on the procedural irregularities in the sale conducted regarding the W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** mortgaged property. It is submitted that the auction proceedings suffer from serious irregularities in such a way that the petitioner has been prejudiced. Therefore, the learned Senior Counsel submitted that the irregularities in the sale conducted have, in effect, vitiated the auction proceedings. According to the learned Senior Counsel, these are matters to be challenged before the DRT where the Securitization Application preferred by the petitioner is pending. The learned Senior Counsel prayed for relegating the petitioner to the DRT with the liberty to raise all contentions on the procedural irregularities in the sale. 10. The learned Senior Counsel relied on two grounds to challenge the auction held on 21.09.2023. (1)In Ext.P6 auction notice, in many places, it is stipulated that the EMD shall be 10% whereas the schedule stipulated Rs.50,00,000/- as the EMD and therefore, this discrepancy in Ext.P2 notice W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** would give an initial impression that the bidders had to deposit 10% of the reserve price being Rupees two Crores which resulted in the deliberate elimination of other bidders from participating in the auction. (2)The sale notice is in violation of the statutory provisions in the sense that 30 days personal notice has not been issued. 11. The learned Senior Counsel brought my attention to Ext.P6, notice of the intended sale, relating to the sale, which was proposed to be held on 28.01.2022. As per Ext.P6, the reserve price fixed was Rs.19,26,85,000/- and the EMD prescribed was Rs.1,92,16,500/- being 10% of the reserve price. Thereafter, the learned Senior Counsel took me to Ext.R2(c), the notice of intended sale, pursuant to which the property was auctioned. In Ext.R2(c), though there is a mention of deposit of 10% of the reserve price, W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** Rs.50,00,000/- was prescribed as EMD in the schedule annexed to it. The submission of the learned Senior Counsel is that this had created an impression that the prospective bidders had to deposit 10% of the reserve price, which would come to Rupees Two Crores, preventing many bidders from participating in the auction. This has caused serious prejudice to the petitioner. The learned Senior Counsel contended that the procedure in the auction shall be strictly in accordance with the Security Interest (Enforcement) Rules, 2002, (‘the Rules’ for short). Relying on sub-rule 7 of Rule 8 of the Rules, the learned Senior Counsel submitted that there is violation of the relevant Rules. The further contention of the learned Senior Counsel is that though the date of sale was 21.09.2023, the notice for the sale was served on the petitioner only on 30.08.2023. The learned Senior Counsel submitted that as per Rule 9 of the Rules, 30 days personal notice is W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** required. The submission of the learned Senior Counsel is that though the fructified sale dated 21.09.2023, was a second attempt, as there was no sale on the first attempt, the Bank is not entitled to the benefit of the proviso to Rule 9(1) which says that if the sale of the property fails and sale is required to be conducted again, the authorized officer shall have to serve, affix and publish notice of sale of not less than 15days to the borrower for any subsequent sale. The challenge of the petitioner is that there was absolutely no sale in the first attempt. The requirement of the Rule is 30 days' clear notice. The learned Senior Counsel relied on **Mathew Varghese v. Amritha Kumar** [2014 (2) KLT 61 (SC)] **and Karthik S. and others v. V.N.Subhash Chand Jain and others** [(2022) 10 SCC 641] in support of his contentions. 12. The learned Senior Counsel further contended that in view of the amendment to Section 13(8) of the SARFAESI Act, once notice of public auction is published, W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** the mortgagor loses his right of redemption, a provision having drastic consequence in the sense that the mortgagor is not even given the liberty to repay the loan. Therefore, according to the learned Senior Counsel, the provisions of the Rules are to be strictly construed. 13. The learned counsel for the Bank Sri. S. Easwaran submitted that the Writ Petition is liable to be dismissed in limine in view of the withdrawal of the original pleadings that formed the foundation of the Writ Petition. The learned counsel further submitted that the petitioner cannot argue beyond the written pleadings filed before the Court. It is submitted that the sale is not under challenge before this Court. The learned Counsel further submitted that on the rule of alternative remedy the Writ Petition is liable to be dismissed. 14. On the infirmity of the sale notice, the learned counsel for the Bank submitted that the proposed sale dated 28.01.2022 did not fructify because of the W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** intervention of the Court in O.P.(DRT) No.67/2022 filed by the petitioner. This Court, as per the order dated 27.01.2022 on the application of the petitioner, had deferred the proceedings initiated for the auction of the mortgaged properties. Therefore, the failure to fructify the sale, which was proposed to be held on 28.01.2022, was due to the reasons attributed to the petitioner alone. Therefore, the contention of the petitioner raising the ground that there was no notice as provided in the Rules is not sustainable, the learned counsel for the Bank submitted. 15. The learned Counsel for the Bank Shri. S. Easwaran further submitted that no prejudice is caused to the petitioner due to the prescription of Rupees Fifty Lakhs as EMD. The counsel contended that sub-rule 7 of Rule 8 does not prescribe any specific percentage of the amount to be fixed as EMD. According to the learned W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** Counsel the internal guidelines issued by the Bank mandate that EMD shall not exceed Rs.50,00,000/-. 16. The learned counsel for the auction purchaser, Shri Adarsh Kumar, submitted that the auction was held strictly in conformity with the Security Interest (Enforcement) Rules, 2002. The learned counsel submitted that the requirements of Rule 9 of the Rules are the following:- (1) No sale of immovable property in the first instance shall take place before the expiry of thirty days from the date on which the public notice of sale is published, provided that if the sale of immovable property fails and the sale is required to be conducted again notice of not less than 15 days to the borrower is only required. (2) The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** authorized officer and shall be subject to the confirmation by the secured creditor. (3) On every sale of immovable property, the purchaser shall immediately , i.e. on the same day or not later than next working day, as the case may be, pay a deposit of the twenty five percent of the amount of the sale price. 17. The learned counsel submitted that, in the present case, there are no irregularities in the auction held on 21.09.2023 and that the auction purchaser has acquired vested right in the property. ## **Maintainability** 18. The SARFAESI Act was promulgated with the intent to enable the banks and financial institutions to realize long term assets, manage problems of liquidity, and asset liability and improve the recovery of the dues by exercising powers to take possession of the secured assets to sell them and reduce Non-Performing Asset by W.P.(C) Nos.26208 of 2023 ..21.. adopting measures for recovery or reconstruction. In **Mardia Chemicals Ltd. v. Union of India** [(2004) 4 SCC 311] on the objects and reasons behind the Act 54 of 2002, the Apex Court observed thus:- “81. ..We hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debts Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of the economy of the country and welfare of the people in general which would subserve the public interest.“ 19. The High Court has imposed upon itself certain restrictions while considering the discretionary remedy under Article 226 of the Constitution. One of those restrictions is the availability of effective and efficacious remedies. The exceptions to the rule of alternative remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; - (d) the vires of a legislation is challenged. 20. In the present case, the petitioner has failed to establish any exceptions to the rule of alternative remedy. 21. The SARFAESI Act is a self-contained code. The Statute provides an effective and efficacious remedy to challenge the proceedings by an aggrieved person. Section 17 of the Act provides ample power to the Tribunal to interfere with the measures taken by the Bank and financial institutions under Section 13. A provision for appeal is also provided in Section 18 of the Act. 22. In the context of the SARFAESI Act, the Apex Court has considered the power of the High Court under Article 226 of the Constitution of India in interfering with the proceedings under the Act in a plethora of decisions. W.P.(C) Nos.26208 of 2023 ..23.. 23. In **State of Bank of Travancore v. Mathew K.C.** [(2018) 3 SCC 85], the Supreme Court held that the discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions. In **State of Bank of Travancore** the Apex Court further observed thus:- “15……Loans by financial institutions are granted from public money generated at the taxpayer's expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.“ 24 **. In Phoenix ARC (P) Ltd v. Vishwa Bharati** **Vidya Mandir** [(2022) 5 SCC 345] **,** the Supreme Court held that filing of the Writ Petitions by the borrowers W.P.(C) Nos.26208 of 2023 ..24.. before the High Court under Article 226 of the Constitution of India is an abuse of process of the court. 25. In **Varimadugu Obi Reddy v. B Sreenivasulu** [(2023) 2 SCC 168], the Supreme Court deprecated the practice of entertaining writ applications challenging the proceedings under the SARFAESI Act by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative remedy available under the law. 26. In **South Indian Bank v. Naveen Mathew Philip** (Supra) reiterating all the precedents on the subject the Supreme Court held that the High Court shall not, unless extraordinary circumstances are brought out, interfere with the proceedings initiated under the SARFAESI Act exercising jurisdiction under Article 226 of the Constitution. 27. In **Celir L.L.P. v. Bafna motors (Mumbai) Pvt. Ltd** (Supra) **,** the Supreme Court held thus:- W.P.(C) Nos.26208 of 2023 ..25.. “96.More than a decade back, this Court had expressed serious concern despite its repeated pronouncements in regard to the High Courts ignoring the availability of Statutory remedies under the RDBFI Act and the SARFAESI Act and exercise of jurisdiction under Article 226 of the Constitution. Even after, the decision of this Court in **Satyawati Tondon** (supra), it appears that the High Courts have continued to exercise its writ jurisdiction under Article 226 ignoring the statutory remedies under the RDBFI Act and the SARFAESI Act.” 28. The aggrieved person has an efficacious and effective remedy under Section 17 of the SARFAESI Act. The petitioner has not placed any exceptional circumstances warranting interference by this Court under Article 226 of the Constitution. The Writ Petition is not maintainable on the further ground that the petitioner has not pressed the reliefs based on the original pleadings set up. The oral arguments are beyond the pleadings in the Writ Petition. A party cannot be permitted to argue the case by going beyond the written pleadings filed before the court. (vide: **Commissioner, Central Excise and Customs v. Reliance Industries** W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** **Ltd** . [2023 SCC OnLine SC 767]. Therefore, the Writ Petition is liable to be dismissed in limine. 29. The contentions raised by the learned Senior Counsel on behalf of the petitioner are the ones to be agitated in the statutory proceedings initiated by the petitioner before the DRT. The petitioner has already filed an application seeking amendments to incorporate additional pleadings challenging the sale of the mortgaged property in the Securitization Application pending before the Tribunal. 30. The petitioner is at liberty to raise those contentions in the proceedings before the Tribunal. I clarify that I have not made any observations on the merits of the contentions raised on either side. Having regard to the stake involved and the rival submissions on the legality of the sale proceedings under challenge, the further proceedings initiated against the petitioner shall be kept in abeyance for 15 days from this day to enable W.P.(C) Nos.26208 of 2023 **==> picture [26 x 9] intentionally omitted <==** the petitioner to seek his remedy before the Statutory Tribunal. The DRT shall take a decision on the interlocutory application, if any, moved by the petitioner within 15 days from this day. The Writ Petition stands dismissed. **K. BABU, JUDGE** kkj W.P.(C) Nos.26208 of 2023 ..28.. ## **`APPENDIX OF WP(C) 26208/2023`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1` - `A TRUE COPY OF THE MSME REGISTRATION CERTIFICATE UDYAM-KL-02-0055349 DATED 08-03-2023, ISSUED BY THE MSME MINISTRY, GOVERNMENT OF INDIA, TO AL SHIFA HOSPITAL UNDER THE PETITIONER'S PROPRIETORSHIP,` - `Exhibit P2 A TRUE COPY OF THE NOTIFICATION S.O. 1432(E) DATED 29-05-2015 FOR REVIVAL AND REHABILITATION OF MSME ISSUED BY THE MINISTRY OF MICRO SMALL & MEDIUM ENTERPRISES` - `Exhibit P3 A TRUE COPY OF THE CIRCULAR FIDD.MSME & NFS.BC.NO.21/06.02.31/2015-16 DATED 17-03-2016, ISSUED BY THE RESERVE BANK OF INDIA (RBI),` - `Exhibit P4 A TRUE COPY OF THE DEMAND NOTICE DATED 04-05-2021, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER,` - `Exhibit P5 A TRUE COPY OF THE POSSESSION NOTICE DATED 26-10-2021, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER` - `Exhibit P6 A TRUE COPY OF THE SALE NOTICE DATED 21-12-2021, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER` - `Exhibit P7 A TRUE COPY OF THE APPLICATION DATED 12-03-2023, SUBMITTED BY THE PETITIONER, FOR REVIVAL AND TO THE RESPONDENT-BANK, AUTHORITIES OF THE MSME AND DEPARTMENT OF FINANCIAL SERVICES, RESERVE BANK OF INDIA, AND TO THE STATE GOVT. AUTHORITIES` W.P.(C) Nos.26208 of 2023 ..29.. - `Exhibit P8 A TRUE COPY OF THE CIRCULAR NO. RBI/2019-20/160 DOR NO.BP.BC.34/21.04.048/2019-2020, DATED 11-02-2020, ISSUED BY THE RBI` - `Exhibit P9 A COPY OF THE CIRCULAR NO. RBI/2012021/17 DOR NO. BP.BC.34/21.04.048/20202021 DATED 06-08-2020, ISSUED BY THE RBI` - `Exhibit P10 A COPY OF THE RBI CIRCULAR RBI/202122/31/ DOR NO.` - `BP.BC.34/21.04.048/2021-2022 DATED 0505-2021` - `Exhibit P11 A TRUE COPY OF THE JUDGEMENT DATED 0906-2023 OF THIS HON'BLE COURT, IN O.P. (DRT) NO. 67/2022` - `Exhibit P12 A TRUE COPY OF THE ORDER DATED 07-122022 IN M.C. 52/2022, ISSUED BY THE ADDL. CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM WITH ITS TYPED COPY` - `Exhibit P13 A TRUE COPY OF THE ORDER DATED 16-052023 IN CRL.M.P. NO. 1312/2023 IN M.C. NO. 52/2022 ON THE FILE OF THE ADDITIONAL CJM COURT, ERNAKULAM` - `RESPONDENT EXHIBITS` - `Exhibit R2(c) Copy of the sale notice dated 22-82023` - `Exhibit R2(d) Copy the acknowledgement card signed by the petitioner` - `Exhibit R2(a) Copy of SA No 270 of 2021 on the files of DRT-1 Ernakulam` - `Exhibit r2(b) Copy of IA No.2635 of 2023 in SA No.270 of 2021` W.P.(C) Nos.26208 of 2023 ..30.. ## `RESPONDENT EXHIBITS` ``` Exhibit R8 ``` ``` A TRUE COPY OF THE COMMUNICATION DATED 25-09-2023 ISSUED BY THE 1ST RESPONDENT ``` - `Exhibit R8(a) A TRUE COPY OF THE SALE NOTICE DATED 22-08-2023 PUBLISHED BY THE 1ST RESPONDENT BANK IN MATHRUBHUMI NEWSPAPER` - `Exhibit R8(b) A TRUE COPY OF THE SALE INTIMATION LETTER DATED 21-09- 2023 ISSUED VIDE EMAIL` - `Exhibit R8(c) A TRUE COPY OF THE CONFIRMATION OF PRE BID EMD RECEIPT DATED 19-09-2023` - `Exhibit R8(d) A TRUE COPY OF THE TRANSACTION INTIMATED VIDE EMAIL DATED 25-09-2023` - `PETITIONER EXHIBITS` - `Exhibit P14 A . TRUE COPY OF THE APPLICATION FOR AMENDMENT DATED 02.10.2023` - `Exhibit P15 A. TRUE COPY OF THE AFFIDAVIT AND THE PETITION DATED 02.10.2023` - `Exhibit P16 A. TRUE COPY OF THE APPLICATION DATED 02.10.2023 FOR STAYING THE CONFIRMATION OF THE SALE` - `Exhibit P17 A. TRUE COPY OF THE LETTER DATED 03.10.2023 FOR DETAILS OF THE E- AUCTION SENT THROUGH EMAIL`