Syndicate Bank Main Branch & Anr. v. Al Ameen A S/O Abdul Rahman & M/S Goodway Enterprises

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941** **WA.No.2007 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 22510/2019(K) OF HIGH COURT OF KERALA DATED 22.8.2019** ## **APPELLANTS/RESPONDENTS:** **1 SYNDICATE BANK MAIN BRANCH,STATUE JUNCTION, THIRUVANANTHAPURAM,PIN-695001, REPRESENTED BY ITS CHIEF MANAGER.** **2 AUTHORISED OFFICER, UNDER THE SARFAESI ACT, MAIN BRANCH,STATUE JUNCTION, THIRUVANANTHAPURAM,PIN-695001.** **BY ADV. SRI.K.P.SUJESH KUMAR** ## **RESPONDENTS/PETITIONER:** **AL AMEEN.A S/O ABDUL RAHMAN,FIRDHOUSIL, TC 48563-13,NATIONAL NAGAR, KALLTTUMUKKU, MANACAUD.P.O, THIRUVANANTHAPURAM,PIN-695009, (PROPRIETOR,M/S GOODWAY ENTERPRISES, STATUE,THIRUVANANTHAPURAM).** **R1 BY ADV. SRI.J.R.PREM NAVAZ R1 BY ADV. SHRI.SUMEEN S. R1 BY ADV. SMT.PARVATHY S.KRISHNAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.2007/2019 2 ## JUDGMENT Dated this the 6th day of November 2019 ## S. Manikumar, CJ Being aggrieved by the order made in W.P(C). No.22510 of 2019 dated 22.8.2019 permitting the respondent to pay sum of Rs.89,99,547/-, being the outstanding amount as on 19.8.2019 with all applicable charges and interest in four equal monthly instalments starting from 20.9.2019 and directing the respondent to file an undertaking before the Bank, within a period of one week from the date of receipt of a copy of the judgment in W.P(C). No.22510 of 2019, that he would surrender vacant possession of the secured asset if he commits any default in payment as directed and against further directions, instant writ appeal is filed on the grounds inter alia that Ext.P3 notice issued by the Advocate Commissioner is appealable before the Debt Recovery Tribunal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 and that writ petition ought not to have been entertained in the light of decisions of Honourable Supreme Court in United Bank of India v. Satyawati Tondon and Others [(2010) 8 SCC 110] and Authorised Officer, State Bank of Travancore WA.2007/2019 3 and Another v. K.C. Mathew [(2018) 3 SCC 85]. Further attention of this Court is also invited to the decision of Honourable Supreme Court in Civil Appeal Nos.10243-10250 of 2018, [ICICI Bank Ltd. v. Umakanta Mohapatra and Others]. 2. Heard learned counsel for the parties and perused the materials available on record. Ext.P3 notice dated 29.7.2019 is issued to the respondent by learned Advocate Commissioner appointed by the learned Chief Judicial Magistrate, Thiruvananthapuram in Crl. M.C. No.135 of 2019. 3. Section 17 of the SARFAESI Act, being relevant is extracted hereunder: “ 17. Application against measures to recover secured debts - (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken: PROVIDED that different fees may be prescribed for making the application by the borrower and the person other than the borrower. [Explanation.—For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted WA.2007/2019 4 his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17.] (1A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction- (a) the cause of action, wholly or in part, arises; (b) where the secured asset is located; or (c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being. [(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,- (a) declare the recourse to any one or more measures referred to in-sub-section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or WA.2007/2019 5 management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt. (4A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,- - (a) has expired or stood determined; or - (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or - (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls WA.2007/2019 6 under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. (5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application: PROVIDED that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1). (6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal. (7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.]” WA.2007/2019 7 4. As rightly contended by the appellant, any measures taken by the secured creditor or its authorised officer, can be challenged under section 17 of the SARFAESI Act, 2002. That apart, in United Bank of India v. Satyawati Tondon and others [(2010) 8 SCC 110] , in paragraph 24, the Honourable Apex Court held thus: “24. Sub-section (5) of Section 17 prescribes the time-limit of sixty days within which an application made under Section 17 is required to be disposed of. The proviso to this sub-section envisages extension of time, but the outer limit for adjudication of an application is four months. If the Tribunal fails to decide the application within a maximum period of four months, then either party can move the Appellate Tribunal for issue of a direction to the Tribunal to dispose of the application expeditiously.” ## 5. Further in Authorised Officer, State Bank of Travancore and Another v. K.C. Mathew [(2018) 3 SCC 85] , in paragraph 17 the Honourable Supreme Court held thus: “17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engg. Works (P) Ltd, 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. WA.2007/2019 8 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. In Civil Appeal Nos.10243-10250 of 2018 [ICICI Bank Ltd. v. Umakanta Mohapatra and Others], by order dated 5.10.2018, the Honourable Apex Court has 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 application under Section 17 of the said Act. In the light of the statutory provisions and decisions cited supra, we are inclined to interfere with the order made in W.P(C). No.22510 of 2019. Accordingly, the same is set aside. Liberty is granted to respondent to move the Debt Recovery Tribunal under Section 17 of the SARFAESI Act, 2002. Sd/- S. Manikumar, Chief Justice Sd/- V. Chitambaresh, Judge sou.