SylaJa Amma v. South Indian Bank

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944 WA NO. 1456 OF 2022 ``` ``` AGAINST THE JUDGMENT IN WP(C) 20057/2022 OF HIGH COURT OF KERALA DATED 22.8.2022 ``` ## **`APPELLANT/PETITIONER IN WPC:`** ``` SYLAJA AMMA, AGED 83 YEARS, W/O.LATE RADHAKRISHNAN NAIR, KURICHIVILA, CHENKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125. ``` ``` BY ADV N.P.ASHA ``` ## **`RESPONDENT/RESPONDENT IN WPC:`** ``` SOUTH INDIAN BANK, REPRESENTED BY ITS AUTHORIZED OFFICER, M.G.ROAD, THIRUVANANTHAPURAM, PIN-695 001. ``` ``` BY ADVS. SUNIL SHANKER SANDHRA.S ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.A.1456/2022**_ 2 ## J U D G M E N T ## Dated this the 10[th] day of October, 2022 ## S. Manikumar, CJ. Before the writ court, petitioner has sought for the following reliefs: “(i) issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to grant petitioner 45 days time to clear the entire dues. (ii) Stay all further proceedings on Exts.P1 and P3 till a period of 45 days.” 2. Short facts leading to filing of the writ petition are as under: 2.1. Petitioner is a senior citizen and widow aged 83 years. Petitioner's property and residential building was mortgaged to raise an education loan for her grand-daughter. Due to medical reasons, the grand-daughter could not continue the studies. Respondent initiated proceedings under SARFAESI Act, 2002. All the notices were issued on the house address of petitioner's sonin-law. Said notices never reached petitioner and she was not aware about the proceedings. Petitioner's son-in-law approached _**W.A.1456/2022**_ 3 this Hon’ble Court and obtained Ext.P2 judgment dated 22.12.2021 but he repaid only two instalments. 2.2. Now Ext.P3 notice is issued by the learned Advocate Commissioner to visit the property on 24.6.2022. Petitioner came to know about the proceedings now only. However, petitioner is ready to clear the entire dues in 45 days. But the respondent is not ready to accept the request of petitioner. Hence, this Writ Petition. 3. After considering the rival submissions, by judgment dated 22.8.2022 in W.P(C).No.20057 of 2022, writ court declined to grant the reliefs sought for. 4. Relevant paragraphs of the judgment are extracted hereunder: “2. When this writ petition came up for consideration before this Court on 21.06.2022, this Court directed that the taking of physical possession of the property of the petitioner shall be deferred by a period of 10 days on condition that an amount of Rs.1,00,000/- is paid on before 24.06.2022. Thereafter, by interim order dated 05.07.2022, it was directed that the interim order will continue on condition that a further sum of Rs.2,00,000/- is paid on or before 30.07.2022. _**W.A.1456/2022**_ 4 3. When this matter is taken up for consideration today, it is submitted that the condition imposed in the order dated 05.07.2022 has not been complied with. 4. The learned counsel appearing for the Bank points out that the son-in-law of the petitioner had earlier approached this Court and this Court had granted the benefit of repayment in 12 monthly instalments through Ext.P2 judgment in W.P. (C)No.29876 of 2021. It is submitted that the son-in-law of the petitioner did not comply with the order and when the Bank proceeded against the property of the petitioner (which is mortgaged for securing the liability) the present writ petition has been filed. 6. Having regard to the totality of the facts and circumstances of the case and considering the fact that in respect of the very same subject matter, the son-in-law of the petitioner had earlier approached this Court and had obtained Ext.P2 judgment and had further failed to comply with the directions contained in the judgment and also taking note of the fact that the petitioner has not complied with the directions contained in the interim order dated 05.07.2022 in the present writ petition, I am of the opinion that the petitioner has not made out a case for interference under Article 226 of the Constitution of India. The writ petition fails and it is accordingly dismissed, making it clearing that if the petitioner has any statutory remedies, it will always be open to the petitioner to avail such remedies.” _**W.A.1456/2022**_ 5 5. Being aggrieved, instant writ appeal is filed on the grounds, inter alia, that non compliance of Annexures A1 and A2 orders are not intentional. Appellant has sustained fracture and was bedridden due to unhealthy condition. Appellant is now ready to clear the dues. Further contention raised by the appellant is that the loan was for education purpose of appellant’s granddaughter and unfortunately the granddaughter had to leave the course for the reasons beyond her control. 6. Heard learned counsel for the appellant Ms. N.P. Asha and perused the material available on record. 7. Son-in-law of the appellant Mr.K.R. Padmakumar has filed W.P(C).No.29876 of 2021 challenging notice dated 14.3.2019 issued by the respondent Bank, under Section 13(2) of the SARFAESI Act, 2002 and possession notice dated 13.2.2020 issued under Section 13(4) of the said Act. 8. From the material on record, it could be deduced that SARFAESI proceedings has been initiated by the Bank as early as on 14.3.2019, and thereafter, Bank has obtained orders in M.C. No.526 of 2021 on the file of learned Chief Judicial Magistrate, Thiruvananthapuram on 29.10.2021 and accordingly, a learned _**W.A.1456/2022**_ 6 Advocate Commissioner was appointed to take possession. When recovery proceedings initiated by the Bank were challenged by the son-in-law and accordingly when W.P(C).29876 of 2021 was filed, during the course of hearing, the petitioner therein has confined himself to an opportunity for repaying the outstanding amount in instalments, for which, the Bank has conceded. 9. Having regard to the above, W.P(C).29876 of 2021 was disposed of on 22.12.2021 as hereunder: - “6. Accordingly, there will be a direction to the respondent bank to accept repayment of the entire outstanding amount of Rs.22,95,750/- along with bank charges from the petitioner on the following conditions: - (i) The outstanding amount of Rs.22,95,750/- shall be repaid in '12' equated monthly instalments. - (ii) The first instalment shall be paid on or before 22.01.2022. - (iii) In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with law. - (iv) In order to enable the petitioner to repay the entire amounts, all coercive proceedings shall be kept in abeyance. The writ petition is disposed of as above.” _**W.A.1456/2022**_ 7 10. The above said directions have not been complied with. Therefore, the Bank initiated further proceedings. Petitioner has filed W.P(C).No.20057 of 2022 challenging the SARFAESI proceedings. 11. When the matter came up for admission, writ court directed not to take possession of the property and be deferred for a period of ten days on condition that the petitioner pays a sum of Rupees One Lakh on or before 24.6.2022. Subsequently, when the matter came up on 5.7.2022, writ court further directed that the interim order stated supra will continue on condition that the petitioner remits another sum of Rs.2,00,000/- on or before 30.7.2022. 12. Interim directions issued have not been complied with. Thus, the writ court, taking note of the orders issued in Exhibit P2 judgment in W.P(C).29876 of 2021 dated 22.12.2021, and the failure on the part of the appellant, in complying with the interim orders dated 21.6.2022 and 5.7.2022 respectively, found that the appellant has not made out a case for interference under Article 226 of the Constitution of India and accordingly, dismissed W.P(C). No.20057 of 2022. _**W.A.1456/2022**_ 8 13. Though Ms.N.P. Asha, learned counsel for the appellant, submitted that non compliance of the judgment in W.P(C).20057 of 2022 and interim orders was not intentional and that appellant is now ready to pay the dues, we are not inclined to interfere with the impugned judgment. 14. Yet another aspect to be taken note of is that in ground No.(E) of the instant appeal, appellant has contended that her granddaughter has to leave the course for the reason beyond her control, whereas in the writ petition, at paragraph 6, appellant has contended thus: “It is submitted that now petitioner’s daughter and son-in-law have not repaid the loan and granddaughter is still studying.” Contrary facts have been projected by the appellant for the purpose of filing this appeal and to consequently, seek for interference. 15. It is a well settled position of law that writ against recovery proceedings, initiated under the SARFAESI Act, 2002 is not maintainable. In the said aspect, reference can be made to few decisions: (i) In **United Bank of India v. Satyawati Tondon and others** [(2010) 8 SCC 110 - AIR 2010 SC 3413], the High _**W.A.1456/2022**_ 9 Court restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Honourable Apex Court observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available, “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 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 Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to _**W.A.1456/2022**_ 10 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.” (ii) In **ICICI Bank Ltd. v. Umakanta Mohapatra and Others** reported in 2018 (13) SCALE 724, the Hon'ble Supreme Court reaffirmed the legal position that High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act. " 16. Reiterating the settled position of law, recently, Hon’ble Supreme Court in **Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir & Ors.** reported in **(2022) 5 SCC 345** held that writ against recovery proceedings, initiated under the SARFAESI Act, 2002 is not maintainable. 17. Nevertheless, taking note of the averments and the submission of learned counsel for the petitioner in W.P(C).No.29876 of 2021 (filed by the son-in law), to the effect that if given an opportunity, outstanding amounts will be paid in _**W.A.1456/2022**_ 11 instalments, writ court has indulged by granting directions to pay the amounts in instalments. Appellant has not complied with the orders and has not made out a case for interference. Accordingly, writ appeal is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou. _**W.A.1456/2022**_ 12 ## APPENDIX ## PETITIONER’S EXHIBITS ANNEXURE-1 TRUE COPY OF THE INTERIM ORDER IN WP(C) No.20057/2022 PASSED BY THIS HON’BLE COURT DATED 21.6.2022 - ANNEXURE-2 TRUE COPY OF THE INTERIM ORDER IN WP(C) No.20057/2022 PASSED BY THIS HON’BLE COURT DATED 5.7.2022 - ANNEXURE-3 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY Dr. RAJESH C.P. DATED 6.10.2022. ANNEXURE-4 TRUE COPY OF NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 26.9.2022 IN M.C No.526/2021 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM WITH ENGLISH TRANSLATION.