Sijeeshkumar v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BADAR** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** ## **WP(C).No.2147 OF 2021(P)** ## **PETITIONER/S:** **SIJEESHKUMAR, AGED 37 YEARS, S/O.KUMARAN, NELLAKATH HOUSE, GURUMANDHIRAM P.O., EDATHIRINJI, THRISSUR-680122.** **BY ADVS. SRI.JOHNSON JOSE PANJIKKARAN KUM.P.H.RIMJU** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 AUTHORISED OFFICER, KERALA STATE CO-OPERATIVE BANK LTD.,KOVILAKATHUMPADAM, THIRUVAMBADY P.O., THRISSUR-680022 (ERSTWHILE THRISSUR DISTRICT CO-OPERATIVE BANK).** - **3 THE BRANCH MANAGER,IRINJALAKUDA BRANCH, THRISSUR DISTRICT CO-OPERATIVE BANK, IRINJALAKUDA-680121 (ERSTWHILE THRISSUR DISTRICT CO-OPERATIVE BANK).** ## **SMT.THUSHARA JAMES , GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.2147 OF 2021 2 ## **JUDGMENT** ## **Dated this the 29th day of January 2021** Heard both sides. 2. The petitioner, by this writ petition, is praying for directing the respondent Nos.2 and 3 not to proceed in pursuant to Ext.P2 notice, in the light of the interim order passed by this Court in W.P.(C). No.9400 of 2020. 3. Learned counsel appearing for the petitioner submitted that this Court had passed orders at Exts.P3 and P4 in W.P.(C). No.9400 of 2020 and has not granted any permission to the banks to proceed under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (hereinafter referred to as 'the SARFAESI Act'). He further submitted that even interim applications were filed in the matter by the Banks, the Full Bench of this Court was not inclined to permit commencement of the proceedings under the SARFAESI Act. Therefore, in submission of the learned counsel appearing for the petitioner, in the light of orders of this Court in W.P.(C). No.9400/2020 (Exts.P3 and P4), the respondents cannot take any action under the SARFAESI Act. 4. Learned Standing Counsel appearing for the respondent WP(C).No.2147 OF 2021 3 bank opposed the petition by contending that notice under Section 13(2) of the SARFAESI Act was issued on 15.02.2020, recalling the entire loan amount and subsequently, after the lapse of one year notice under Section 13(4) of the SARFAESI Act came to be issued on 04.01.2021 (Ext.P2). Therefore, according to the learned Standing Counsel appearing for the respondent bank, the petitioner is not entitled for any reliefs. 5. What is impugned in the instant petition is the notice issued under Section 13(4)of the SARFAESI Act by the secured creditor. The petitioner in indirect way challenging the notice under Section 13(4) of the SARFAESI Act by filing the instant petition. In the light of following observations of the Hon'ble Apex Court in the matter of _**Authorized Officer, State Bank of Travancore and another**_ vs. _**Mathew K.C**_ (2018(1) KLT 784), the petition as framed and filed is not maintainable as the remedy lies elsewhere. 5. ….... 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 as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows: WP(C).No.2147 OF 2021 4 “15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569, that :- “6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case WP(C).No.2147 OF 2021 5 where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.” 10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :- “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 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 quasijudicial 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 Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. * * * WP(C).No.2147 OF 2021 6 55. It is a matter of serious concern that despite repeated pronouncement 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 Article 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.” 11. In Union Bank of India and another V. Panchanan Subudhi, 2010 (15) SCC 552, further proceedings under Section 13(4) were stayed in the writ jurisdiction subject to deposit of Rs.10,00,000/- leading this Court to observe as follows : “7. In our view, the approach adopted by the High Court was clearly erroneous. When the respondent failed to abide by the terms of onetime settlement, there was no justification for the High Court to entertain the writ petition and that too by ignoring the fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act.” 12. The same view was reiterated in Kanaiyalal Lalchand Sachdev and Others V. State of Maharashtra and Others, 2011 (2) SCC 782 observing: “23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh V. National Insurance Co. Ltd; WP(C).No.2147 OF 2021 7 Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)” 13. In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the ‘SARFAESI Act’ available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing : “27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. 28…….In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.” 14. A similar view was taken in Punjab National Bank and another V. Imperial Gift House and Others, (2013) 14 SCC 622, observing:- “3. Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court. WP(C).No.2147 OF 2021 8 4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the Bank.” 15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers 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. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High WP(C).No.2147 OF 2021 9 Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. V. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :- “32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” 6. What is argued before this Court can be demonstrated before the Debts Recovery Tribunal in the appropriate proceedings by the petitioner. Therefore, the petition as framed and filed is not maintainable, in the light of alternate remedy of challenging the WP(C).No.2147 OF 2021 10 notice under Section 13(4) of the SARFAESI Act, before the Debts Recovery Tribunal. The petition, as such, is devoid of merits and the same is accordingly dismissed. The petitioner may avail alternate remedy, if so, advised. Sd/- ajt A.M.BADAR JUDGE WP(C).No.2147 OF 2021 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LOAN PASSBOOK IN THE NAME OF PETITIONERS MOTHER SULOCHANA.** **EXHIBIT P2 TRUE COPY OF THE SECTION 13(4) NOTICE DATED 04.01.2021 ISSUED BY THE RESPONDENTS 2 & 3 TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED 03.08.2020 IN W.P.(C)NO.9400 OF 2020 BEFORE THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER DATED 07.09.2020 IN W.P.(C)NO.9400 OF 2020 BEFORE THIS HON'BLE COURT.**