SOSAMMA ABRAHAM v. CHIEF MANAGER, STATE BANK OF TRAVANCORE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 Crl.MC.No. 1282 of 2008() ------------------------- PETITIONER: ------------ SOSAMMA ABRAHAM, W/O.ABRAHAM, CHEMPITHARAYIL HOUSE, PALLOM POST, NATTAKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENTS: - ------------- 1. THE CHIEF MANAGER, STATE BANK OF TRAVANCORE, KOTTAYAM MAIN BRANCH THIRUNAKKARA POST, KOTTAYAM. 2. S.HARIHARAN, ADVOCATE, KOTTAYAM. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED ADV. SRI. SATISH NAINAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-03-2008, THE COURT ON 7-4-2008 PASSED THE FOLLOWING: ## **V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 1282 of 2008** - *** * * * * * * * * * * * * * * * * Dated:** ## **ORDER** The petitioner (Sosamma Abraham) who had availed of a loan of Rs. 15 lakhs from the Kottayam main branch of the State Bank of Travancore for starting a small scale industrial unit in her residential property for the manufacture of cables, seeks to quash Annexure A6 order dated 3-3-2008 passed by the Chief Judicial Magistrate, Kottayam under Sec. 14 of the Securitisation and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ' the Act' for short). 2. Heard Adv. Sri. Kuruvila Jacob, the learned counsel appearing for the petitioner and Adv. Sri. Satish Nainan, the learned counsel appearing for the Bank. 3. Assailing the impugned order Adv. Sri. Kuruvila Jacob, the learned counsel appearing for the petitioner made the following submissions:- It is true that the petitioner had availed of a loan from the bank for starting a small scale industrial unit in her residential property. But after starting the said business the petitioner forced to close down the -:2:- industrial unit due to the repeated wrongful acts of harassment committed by Sri. K.C. Chacko, the former manager of the bank. The unit is completely closed down for the past 3 ½ years. There is a serious dispute between the petitioner and the bank regarding the actual arrears due . The property which has been secured is an agricultural land as evidenced by Annexure A1 certificate dated 31-032008 issued by the Agricultural Officer, Krishi Bhavan, Nattakom. By virtue of Sec. 31 (i), the provisions of the Act have no application in respect of any security interest created in agricultural land. As a matter of fact, it was realising the fact that the petitioner has a serious dispute regarding the actual arrears due that the bank has filed O.A. 6 of 2006 before the Debts Recovery Tribunal, Ernakulam. When such a proceedings are pending, securitisation proceedings under the provisions of the Act cannot be resorted to. The Chief Judicial Magistrate should have issued notice to the petitioner ought to have given the petitioner an opportunity of being heard. The order passed by the learned Magistrate is opposed to the principles of natural justice. That apart, when there is a dispute relating to nonpayment of any amount including interest . Sec. 11 of the Act enjoins that such dispute shall be settled by conciliation or arbitration as provided in the Arbitration and Conciliation Act, 1996. The bank -:3:- was, therefore, not entitled to move the Chief Judicial Magistrate under Sec. 14 of the Act. The petitioner is sought to be dispossessed illegally and in fragrant violation of the violation of the principles of natural justice. 4. I am afraid that I cannot agree with the above submissions. The petitioner who is the borrower is admittedly a defaulter. The secured asset in the case is 16 cents of land comprised in Sy. No. 193/3 in Nattakom Village consisting of one residential building and another building housing the industrial unit in question. It is situated by the side of M.C. road at Kottayam. It was long after the commencement of the securitisation proceedings that the petitioner secured from the agricultural officer, Krishi Bhavan, Nattakom Annexure A1 certificate dated 31-08-2006 to the effect that the said property is used as an agricultural land. Ext.A1 states that there are 4 coconut trees, 3 Anjili trees , 15 banana plants and a few agricultural plants such as elephant foot yam , koloccasia, tapioca and a few flowering plants, the flowers which are intended for sale. The existence of the two buildings in the property is very conveniently suppressed in Annexure A1 certificate. I fail to see as to how such a property could be called an agricultural land . The agricultural officer was obliging the petitioner by giving a vague certificate evidently with a -:4:- view to extricate the petitioner from the operational sweep of the provisions of the Act. 5. Out of the loan of Rs. 15 lakhs availed of by the petitioner no pye has been paid by her so far. As on 23-3-2008 the actual amount due from her Rs. 17,59,726/-. The argument of the petitioner was that during the pendency of O.A. 6 of 2006 before the Debt Recovery Tribunal, Ernakulam at the instance of the Bank the securitisation proceedings cannot be resorted to, is not sustainable in the light of the decision of a Division Bench of this Court in _**Abdul**_ _**Azeez v. Punjab National Bank - 2005 (1) KLT 243**_ wherein it has been held that the bank can call in and the provisions of the Act notwithstanding the pendency of a civil suit concerning the very same subject matter. 6. Equally misconceived is the contention based on Sec. 11 of the Act which reads as follows: _**Resolution of disputes:-** Where any dispute relating to secruitisation or reconstruction or non-payment of any amount due including interest arises amongst any of the parties, namely, the bank or financial institution or securitisation company or reconstruction company or qualified institutional buyer, such dispute shall be settled by conciliation or arbitration as provided in the Arbitration and Conciliation Act, 1996 (26 of 1996), as if the parties to the dispute have consented in writing for determination of such_ -:5:- ## _dispute by conciliation or arbitration and the provisions of that Act shall apply accordingly._ Thus, it can be seen that resolution of disputes through conciliation or arbitration as provided for only in cases of disputes between the parties referred to in the said section which conspicuously does not mention borrower as a party. Hence, Sec. 11 of the Act does not stand in the way of initiation of continuance of secutirsation proceedings. 7. There is also no force in the contention of the petitioner that the Chief Judicial Magistrate ought to have issued notice to the petitioner and an opportunity of being heard. This aspect of the matter is squarely covered by the decision of this Court in _**Sindhu C.R. v. State of Kerala and Others - ILR 2007 (4) Kerala 563**_ . As observed by the Apex Court in _**Transcore v. Union of India - AIR 2007 SC 712**_ the Act provides for recovery of possession of the secured asset by non-adjudicatory process and therefore it would be erroneous to say that the rights of the borrower would be defeated by such recovery of possession. The remedy of the petitioner lies in approaching the Debts Recovery Tribunal by way of an appeal under Sec. 17 of the Act and that Forum has got the authority to adjudicate all claims and if after adjudicating that authority is of the view that possession was wrongly taken from the borrower or any person, that -:6:- authority has not only the power to restore possession to the aggrieved person but also to award compensation in appropriate cases. I, therefore, reject the contentions of the petitioner. The proceedings culminating in Annexure A6 order was not a judicial proceeding in which any person had any right to notice or hearing. On a written requisition made by the secured creditor the Chief Judicial Magistrate is given the power to take possession of the secured asset and hand it over to the secured creditor. The learned counsel for the revision petitioner made a fervent request that in case this Court were to dismiss the Crl.M.C. the petitioner may be permitted to file an appeal under Sec. 17 of the Act and until then the handing over of the possession of the secured asset may be stayed . I am not inclined to accede to the said request since the right of appeal under Sec. 17of the Act arises only after the culmination of the proceedings and the power of the Debts Recovery Tribunal in such appeal is only to restore possession in appropriate cases and not to stay the handing over of possession. The result of the foregoing discussion is that this Crl.M.C. is devoid of any merit and is accordingly dismissed. ## **V. RAMKUMAR, (JUDGE)** -:7:- ani.