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High Court of KeralaSingle JudgeDismissed

South Indian Bank Ltd. v. Sijo Joy and Evelin Jood

Case / Petition Number:WP(C) No. 19184 of 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2023-07-20
Court Decision / Holding
Writ petition dismissed. The court held there were no extraordinary circumstances to entertain interference under Article 226 in SARFAESI proceedings, and directed petitioners to pursue statutory remedies in accordance with law.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Sijo Joy
  • Evelin Jood

Respondents

  • The South Indian Bank Ltd., Corporate Office, Thrissur
  • The Authorized Officer, South Indian Bank Ltd., Keeranpara, Punnekkad, Ernakulam District
  • Jood Varghese
  • Sabu Varghese

Legal Representation & Advocates

Counsels for Petitioners

  • • R. Suraj Kumar
  • • N. G. Sindhu
  • • Anjana R.S.

Counsels for Respondents

  • • V. K. Prasad Mohan
  • • Jacob George
  • • P. V. Parvathy
  • • Reena Thomas
  • • Nigi George

Case Synopsis & Summary

The writ petition in WP(C) No. 19184 of 2023 before the Kerala High Court was filed to defer recovery proceedings under the SARFAESI Act by the respondents bank pending disposal of Family Court proceedings in OP No. 604/2021 (Ext.P2) at Muvattupuzha. The petitioners, Sijo Joy and Evelin Jood, contend they are deserted wife and child of the third respondent and that a housing loan of Rs. 45 lakh was obtained on 07.06.2018 by creating an equitable mortgage. A second loan of Rs. 7.5 lakh was sought by respondents 3 and 4, but due to non-payment, the bank declared the accounts as Non-Performing Assets and initiated SARFAESI proceedings. The third respondent allegedly transferred properties to the fourth respondent and has filed O.P. 520/2021 for divorce; the petitioner has also filed M.C. 1775/2021 under the Domestic Violence Act and Ext.P2 before the Family Court. The petition seeks exclusion of a residential portion (and 10 cents) from recovery, claiming the third respondent’s resources to repay, while the bank argues such exclusion would diminish the asset’s value and that the writ petition is not maintainable. The court, relying on the Supreme Court’s stance in South Indian Bank Ltd. v. Naveen Mathew Philip, held that High Courts should not ordinarily interfere with SARFAESI proceedings under Article 226 unless extraordinary circumstances exist. Consequently, the petition was dismissed, but the petitioners retain rights to pursue statutory remedies. The decision underscores deference to SARFAESI processes and the primacy of statutory channels for relief.

Provisions of Law Cited

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act)Constitution of India, Article 226Protection of Women from Domestic Violence Act

Legal Doctrines & Maxims

  • Non-interference of High Courts in SARFAESI proceedings under Article 226 unless extraordinary circumstances (doctrine as per SC in Naveen Mathew Philip)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that recovery should be deferred until disposal of Family Court proceedings (OP 604/2021). They claim to be a deserted wife and dependent child under domestic circumstances and seek exclusion of a portion of the residential property from attachment. They argue the third respondent has funds to repay the loan but has defaulted to force the petitioners out of the home; they request relief to avoid eviction and protect the family dwelling pending resolution of related Family Court matters and domestic enforcement actions. They maintain that exclusion of the property is necessary to preserve the family home and ensure fair remedies through statutory channels.

Contentions of Respondents

The respondents contended the writ petition is not maintainable and cannot seek exclusion of even a small portion (10 cents) of the property; the first petitioner is a co-mortgagor with a first charge over the secured asset. Excluding any portion would reduce the asset’s value and prejudice the bank’s security. If a portion is excluded, it would undermine the asset’s value and the bank’s security interest; hence, the writ petition should be dismissed. The bank emphasized the petitioner’s obligation to repay and argued the petition does not merit interference in SARFAESI proceedings.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
South Indian Bank Ltd. v. Naveen Mathew Philip(2023) LiveLaw (SC) 320PositiveCited to establish the principle that High Courts should not ordinarily interfere with SARFAESI proceedings under Article 226 unless extraordinary circumstances exist, which supports the dismissal of the writ petition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 ``` ## `WP(C) NO. 19184 OF 2023` ## `PETITIONERS:` ``` 1SIJOLE JOY, AGED 43 YEARS W/O JUDE VARGHESE, RESIDING AT PEDIKKATTUKUNNEL, PUNNEKKAD P.O., KEERANPARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691 2EVELIN JOOD, AGED 10 YEARS MINOR, REPRESENTED BY HER MOTHER AND GUARDIAN, SIJOLE JOY, W/O JUDE VARGHESE AGED 43 YEARS, RESIDING AT PEDIKKATTUKUNNEL, PUNNEKKAD P.O KEERANPARA, KOTHAMANGALAM. ERNAKULAM DISTRICT, PIN - 686691 BY ADVS. R.SURAJ KUMAR N.G.SINDHU ANJANA R.S. ``` ## `RESPONDENTS:` - `1 THE SOUTH INDIAN BANK LTD., CORPORATE OFFICE, T.B ROAD, MISSION QUARTERS, THRISSUR, PIN - 680001` - `2 THE AUTHORISED OFFICER, SOUTH INDIAN BANK LTD., DOOR NO. 282, 283, 298, 299, PULICHAMAKKAL BUILDING, K.P. ROAD, KEERANPARA P.O, PUNNEKKAD, ERNAKULAM DISTRICT-686681. DOOR NO. 282,283,298,299, PULICHAMAKKAL BUILDING, K.P ROAD, KEERANPARA P.O. PUNNEKKAD, ERNAKULAM DISTRICT., PIN - 686681` - `3 JOOD VARGHESE, PEDIKKATTUKUNNEL, PUNNEKKAD P.O KEERANPARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691` - `4 SABU VARGHESE, PEDIKKATTUKUNNEL, PUNNEKKAD P.O, KEERANPARA, KOTHAMANGALAM. ERNAKULAM DISTRICT, PIN - 686691 BY ADVS. V.K.PRASAD MOHAN JACOB GEORGE P.V.PARVATHY (P-41)(K/000036/1991) REENA THOMAS(R-364) NIGI GEORGE(K/1169/2012)` ``` WPC No.19184 of 2023 ``` ``` 2 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WPC No.19184 of 2023 ``` ``` 3 ``` ## C.S.DIAS, J. ``` ------------------------- ``` ## W.P.(C.) No.19184 of 2023 `-------------------------` Dated this the 20[th] day of July, 2023 ## JUDGMENT The writ petition is filed, interalia, to direct the respondents 1 and 2 to defer the recovery proceedings as against the petitioner, till O.P. No.604/2021 (Ext.P2) is decreed by the Family Court, Muvattupuzha. 2. The petitioners’ case is that, they are deserted wife and child of the third respondent. The first petitioner and the third respondent had availed a housing loan from the first respondent bank on 07.06.2018 for an amount of Rs.45/- lakh by creating an equitable mortgage by deposit of title deeds. Subsequently, the first petitioner and the ``` WPC No.19184 of 2023 ``` ``` 4 ``` respondents 3 and 4 had applied for another loan for Rs.7.5/- lakh. Due to non-payment of the instalments, the first respondent has declared the loan accounts as Non-Performing Asset and has initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, ‘Act’). In order to defeat the creditors, the third respondent transferred his properties in favour of the fourth respondent and has now filed O.P. No.520/2021 before the Family Court, Muvattupuzha, against the first petitioner for a decree of divorce. The first petitioner has filed M.C. No.1775/2021 before the Judicial First Class Magistrate, Kothamangalam invoking the provisions of the Protection of Women from Domestic Violence Act. She has also filed Ext.P2 before the same Family Court, against the third ``` WPC No.19184 of 2023 ``` ``` 5 ``` respondent for a decree of recovery for money and gold ornaments. The property has been attached by the said Court. The petitioners have also sought for adequate maintenance from the third respondent. Nonetheless, the respondents 1 and 2 are proceeding against the secured asset and an Advocate Commissioner is threatening to take physical possession of the property. Although the third respondent has sufficient money to repay the loan amount, he has purposefully defaulted repayment of the instalments, to throw out the petitioners from the residential house. The secured asset has a value of Rs.1,43,22,500/-. Only a portion of the property need be sold to satisfy the loan amount. The petitioners have no means to pay off the instalments on time. The respondents 1 and 2 may be directed to exempt the residential ``` WPC No.19184 of 2023 ``` ``` 6 ``` building from the recovering proceedings. Hence, the writ petition. 3. The respondents 1 and 2 have filed a counter affidavit, inter alia, contending that the writ petition is not maintainable. It is contended that the petitioners cannot seek for the exclusion of 10 cents of property and the residential house from the recovery proceedings. The first petitioner is also a comortgagor, who has an obligation to pay the loan amount. The alleged dispute between the first petitioner and the third respondent is not a ground to stall the recovery proceedings initiated by the respondents 1 and 2, over which they have first charge. If any portion of the property is excluded, it will diminish the value of the secured asset. The writ petition is devoid of merits and same may be dismissed. ``` WPC No.19184 of 2023 ``` ``` 7 ``` 4. Heard; Sri.Suraj Kumar, the learned Counsel appearing for the petitioners and Sri.Mohan Jacob George, the learned Counsel appearing for the respondents 1 and 2. As this Court is not inclined to entertain the writ petition, I dispense with notice to the respondents 3 and 4. 5. The Hon’ble Supreme Court in South Indian Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw (SC) 320) , after adverting to a myriad of earlier judicial pronouncements rendered under the Act, has categorically declared the law that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act in writ proceedings under Article 226 of the Constitution of India. 6. Having considered the pleadings and ``` WPC No.19184 of 2023 ``` ``` 8 ``` materials on record, particularly the fact that the first petitioner is also a co-mortgagor and the respondents 1 and 2 have first charge over the secured asset, I do not find any extraordinary circumstances to entertain the writ petition by invoking the plenary powers of this Court under Article 226 of the Constitution of India. Nonetheless, it will be upto the petitioners to work out their statutory remedies, in accordance with law. Resultantly, the writ petition is dismissed, without prejudice to the right of the petitioners to work out their statutory remedies, in accordance with law. ## Sd/- C. S. DIAS JUDGE SKP/20-07 ``` WPC No.19184 of 2023 ``` ``` 9 ``` ## `APPENDIX OF WP(C) 19184/2023` ``` PETITIONERS’ EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER IN MC NO 1775/2021BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT KOTHAMANGALAM DATED 15.09.2021 EXHIBIT2TRUE COPY OF THE O.P NO 604/2021 BEFORE THE FAMILY COURT MUVATTUPUZHA DATED 07.09.2021 EXHIBIT3TRUE COPY OF THE M.C NO 32/2023 BEFORE THE FAMILY COURT MUVATTUPUZHA DATED 24.02.2023 EXHIBIT P4TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN M.C NO 301/2023 DATED 29.05.2023 ``` ``` RESPONDENTS' EXHIBITS:NIL ``` ## `TRUE COPY` ``` P.A.TO JUDGE ```