We Build (P) Ltd. v. State Bank of India (Erstwhile State Bank of Travancore) Poovappura Branch and Others

W. A. Nos. 1596 & 1706 of 2022 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, ``` ``` 1944 ``` ``` WA NO. 1596 OF 2022 ``` ``` AGAINST THE JUDGMENT WP(C) 28391/2021 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/S:`** ``` WE BUILD (P) LTD., HAVING ITS REGISTERED OFFICE AT TC 16/713, JAGATHY, THIRUVANANTHAPURAM - 695014. REPRESENTED BY ITS MANAGING DIRECTOR MR. C KAMALASANAN S/O. CHELLAPPAN AGED 80 YEARS, RESIDING AT "SHRUTHY", TC16/712, JAGATHY, THIRUVANANTHAPURAM-695014. ``` ## **`BY ADV MILLU DANDAPANI`** ## **`RESPONDENT/S:`** |**`1`**|**`STATE BANK OF INDIA,`**| |---|---| ||**`(ERSTWHILE STATE BANK OF TRAVANCORE) POOJAPPURA`**| ||**`BRANCH, POOJAPPURA P.O. THIRUVANANTHAPURAM-`**| ||**`695012. REPRESENTED BY THE CHIEF MANAGER,`**| |**`2`**|**`THE AUTHORISED OFFICER/CHIEF MANAGER,`**| ||**`STATE BANK OF INDIA, POOJAPPURA BRANCH,`**| ||**`THIRUVANANTHAPURAM-695012.`**| |**`3`**|**`THE CHIEF MANAGER /AUTHORISED OFFICER,`**| ||**`STATE BANK OF INDIA, STRESSED ASSETS RECOVERY`**| ||**`BRANCH, LMS COMPOUND, OPPOSITE MUSEUM WEST GATE,`**| ||**`VIKAS BHAWAN P.O, THIRUVANANTHAPURAM-695033.`**| |**`4`**|**`THE GENERAL MANAGER,`**| ||**`LOCAL HEAD OFFICE, STATE BANK OF INDIA, S.S.`**| ||**`KOVIL ROAD, THIRUVANANTHAPURAM-695 001.`**| ||**`BY ADV. JAWAHAR JOSE`**| ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, ALONG WITH WA.1706/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. Nos. 1596 & 1706 of 2022 -2- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, ``` ## **`1944`** ``` WA NO. 1706 OF 2022 ``` ## **`APPELLANT/S:`** ``` WE BUILD (P) LTD. HAVING ITS REGISTERED OFFICE AT TC. 16/713, JAGATHY, THIRUVANANTHAPURAM-695014, REPRESENTED BY ITS MANAGING DIRECTOR MR.C.KAMALASANAN, S/O.CHELLAPPAN, AGED 80 YEARS, RESIDING AT "SHRUTHY", TC 16/712, JAGATHY, THIRUVANANTHAPURAM-695014. ``` ``` BY ADV MILLU DANDAPANI ``` ## **`RESPONDENT/S:`** - **`1 STATE BANK OF INDIA , (ERSTWHILE STATE BANK OF TRAVANCORE) POOJAPPURAM BRANCH, POOJAPPURA.P.O, THIRUVANANTHAPURAM-695012.`** - **`2 THE AUTHORISED OFFICER/CHIEF MANAGER, STATE BANK OF INDIA, POOJAPPURA BRANCH, THIRUVANANTHAPURAM-695012.`** - **`3 THE CHIEF MANAGER/ AUTHORISED OFFICER, STATE BANK OF INDIA, STRESSED ASSETS RECOVERY BRANCH, LMS COMPOUND, OPPOSITE MUSEUM WEST GATE, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033.`** - **`4 THE GENERAL MANAGER, LOCAL HEAD OFFICE, STATE BANK OF INDIA, S.S.KOVIL ROAD, THIRUVANANTHAPURAM-695001. BY ADV. JAWAHAR JOSE`** ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, ALONG WITH WA.1596/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. Nos. 1596 & 1706 of 2022 -3- ## **J U D G M E N T** ## Shaji P. Chaly, J. The captioned appeals are filed by a Private Limited Company challenging the common judgment of the learned Single Judge in W. P. (C) No. 28391 of 2021 and R. P. No. 149 of 2022 in I. A. No. 4 of 2022 dated 11.10.2022. 2. The subject issue arises under the SARFAESI Act, 2002. When the writ petition was admitted to the files of the writ Court, in I. A. No. 4 of 2022, confirmation of the sale was stayed by the learned Single Judge; however, later it was modified and permitted the Bank to confirm the sale. The said order was sought to be reviewed by the appellant by filing R. P. No. 149 of 2022. Accordingly, the learned Single Judge reviewed the order and has passed an interim order dated 14.02.2022 restraining the Bank from carrying out registration of the secured assets in favour of the auction purchasers. 3. After considering the rival submissions and taking into account the judgments of the Hon’ble Apex Court in **United Bank of India v. Satyawati Tondon [(2010) 8 SCC 110], Kanaiyalal** W. A. Nos. 1596 & 1706 of 2022 -4- **Lalchand Sachdev v. State of Maharashtra [(2011) 2 SCC 782], Sri. Siddeshwara Co-operative Bank Ltd. v. Ikbal [(2013) 10 SCC 83], CIT v. Chhabil Dass Agarwal [(2014) 1 SCC 603], Agarwal Tracom Pvt. Ltd. v. Punjab National Bank [(2018) 1 SCC 626], State Bank of Travancore v. Mathew K. C. [(2018) 3 SCC 85] and Phoenix ARC Pvt. Ltd. v. Vishwa Bharati Vidya Mandir and Others [(2022) 5 SCC 345]** , the learned Single Judge by judgment dated 11.10.2022 has dismissed the writ petition and the review petition leaving open the liberty of the appellant to approach the Debts Recovery Tribunal. Anyhow, the interim order granted by the learned Single Judge in R. P. No. 149 of 2022 on 14.02.2022 was extended for a further period of three weeks so as to enable the appellant to approach the tribunal. 4. When the writ appeals were admitted to the files of this Court, this Court also directed the Bank not to effect registration of the document pursuant to the confirmation of the sale until further orders from this Court, on 08.11.2022. The said order is still in force. 5. In fact the appellant has approached this Court earlier by filing W. P. (C) No. 12035 of 2020 challenging the correctness of the Debt W. A. Nos. 1596 & 1706 of 2022 -5- Recovery Tribunal which was dismissed as per judgment dated 15.10.2020 and though W. A. No. 267 of 2021 was filed, it was also dismissed as per the judgment dated 15.03.2021. The Special Leave Petition preferred against the said judgment, was also dismissed as per an order dated 18.11.2021 in SLP (C) NO. 18813 of 2021 by the Hon’ble Apex Court. 6. The paramount contention advanced in the writ petition is that the writ petition was filed at a time when the tribunal was not sitting at Kochi and therefore by virtue of the order passed by the Hon’ble Apex Court in SLP (C) No. 10911 of 2021, the learned Single Judge ought to have considered the writ petition on its merits. Other contentions are also raised with respect to the illegality in the sale conducted etc. 7. We have heard learned counsel for the appellant Sri. Millu Dandapani, and Sri. Jawahar Jose for the respondent Bank and its officials and perused the pleadings and material on record. 8. The sole question to be considered is whether any interference is required to the judgment of the learned Single Judge. W. A. Nos. 1596 & 1706 of 2022 -6- 9. In fact, the learned Single Judge has dismissed the writ petition taking into account the legal position as on today with respect to entertainment of the writ petition against the proceedings initiated under the SARFAESI Act, 2002. It is unequivocal and clear from the proposition of law laid down in the judgments by the Hon’ble Apex Court that no writ petition can be entertained when the aggrieved person has an equally efficacious remedy before the tribunal. It is true that the writ petition was filed at a time when the tribunal was not sitting and the appellant has secured an interim order against the Bank from proceeding further even though the sale was confirmed. 10. The paramount contention advanced by the appellant, as we have pointed out above, is that the writ court ought to have entertained the writ petition in view of the directions contained in SLP (C) No. 10911 of 2021. On a perusal of the order passed by the Hon’ble Apex Court in the said petition, we are of the view that even though the High Courts were directed to entertain the matters falling within the jurisdiction of the Debts Recovery Tribunals and the Debts Recovery Appellate Tribunals under Article 226 of the Constitution of India, it is made clear in the said order that once a tribunal is constituted, the W. A. Nos. 1596 & 1706 of 2022 -7- matters shall be relegated to the tribunals by the High Courts. It is in accordance with the directives contained in the Special Leave Petition alone the learned Single Judge dismissed the writ petition leaving open the liberty of the appellant to approach the tribunal. 11. In fact, in the instant case, the sale notice is under challenge on various grounds. It is clear from Section 17 of the Act 2002 that the tribunal is conferred with sufficient power and jurisdiction to consider such aspects. Therefore, In view of the settled legal position that could be culled out from the judgments of the Hon’ble Apex Court referred to supra, we do not think that the appellant has made out any case for interference in a proceeding under Article 226 of the Constitution of India. Therefore the learned Single Judge was right in dismissing the writ petition and relegating the appellant to the tribunal constituted for the purpose. 12. We are also of the view that the contentions advanced by the appellant in the writ petition as well in the writ appeal are matters coming absolutely within the jurisdiction of the tribunal and we are of the clear opinion that the appellant has not made out any case for invoking the extraordinary jurisdiction conferred on this Court under W. A. Nos. 1596 & 1706 of 2022 -8- Article 226 of the Constitution of India. Needless to say, writ appeals fail and accordingly, they are dismissed. However the interim order granted by this Court on 8[th] November 2022, that registration shall not be done will stand extended for a further period of one week from the date of receipt of a copy of this judgment so as to enable the appellant to approach the competent forum. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE