Union Bank Of India vs Mrs. K.P.Sasikala Devi on 21 June, 2011

[Cites 4, Cited by 1]

Kerala High Court

Union Bank Of India vs Mrs. K.P.Sasikala Devi on 21 June, 2011

Bench: C.K.Abdul Rehim

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11242 of 2011(E)


1. UNION BANK OF INDIA,
                      ...  Petitioner

                        Vs



1. MRS. K.P.SASIKALA DEVI, W/O. JAGADEESH,
                       ...       Respondent

2. THE CONSUMER DISPUTES REDRESSAL FORUM,

                For Petitioner  :SRI.A.S.P.KURUP, SC, UBI

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :21/06/2011

 O R D E R
                     C.K.ABDUL REHIM, J.
                    -------------------------------
                  W.P.(C).No. 11242 of 2011
                    -------------------------------
           Dated this the 21st day of June, 2011.

                        J U D G M E N T

This writ petition is filed challenging Ext.P2 order issued by the 2nd respondent forum, on an application filed by the 1st respondent. The 1st respondent herein had availed a cash credit hypothecation facility from the petitioner Bank, repayment of which was defaulted. Consequently, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated on issuing Ext.P1 notice. It is stated that the petitioner Bank had approached the Chief Judicial Magistrate Court invoking Section 14(1) and an order directing to take over possession of the property was issued by that court. The 1st respondent had approached the 2nd respondent forum in the meanwhile, and Ext.P2 interim order was issued restraining the petitioner Bank from taking any recovery proceedings against the property in question, till final disposal of interim application. 2 W.P.(C).No. 11242 of 2011

2. According to the petitioner, Ext.P2 order issued by the 2nd respondent forum is not sustainable in view of Sections 34 and 35 of the SARFAESI Act. This Court had already decided the question as to whether challenge against the proceedings initiated under the SARFAESI Act is maintainable before the Consumer Dispute Redressal Forum. It held that, in view of Sections 34 and 35 of the SARFAESI Act, there is an express bar imposed on the civil courts and other authorities from granting any injunction with respect to the action taken under the SARFAESI Act. Considering the fact that, Section 35 of the SARFAESI Act makes it clear that the provisions shall have an overriding effect with respect to any other law, notwithstanding anything inconsistent contained therein, interference of the forum against the steps initiated under the SARFAESI Act is not maintainable. The decision of this Court in this regard is contained in H.D.F.C. Bank Ltd. Vs. Consumer Dispute Redressal Forum {2011(2) KLT 132}.

3. In view of the settled legal position as enumerated 3 W.P.(C).No. 11242 of 2011 above I am holding that Ext.P2 order issued by the 2nd respondent forum is not sustainable.

4. Therefore, the writ petition is allowed and Ext.P2 order is hereby quashed. It is made clear that, pendency of the complaint before the 2nd respondent forum will not in any way restrain the petitioner Bank from proceeding with the steps under the SARFAESI Act.

C.K.ABDUL REHIM, Judge ami/

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