Kerala High Court
Antony vs Bank Of Maharashtra on 29 June, 2011
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933
WP(C).No. 4714 of 2011(L)
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PETITIONER(S):
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ANTONY, S/O.JOSEPH, AGED 74 YEARS,
VELLATTUKUDY HOUSE, VADAKKUMBHAGAM KARA,
MANJAPRA VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
BY ADV. SRI.PAUL K.VARGHESE
RESPONDENT(S):
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1. BANK OF MAHARASHTRA, (HEAD OFFICE:1501,
SHIVAJI NAGAR, LOKAMANGAL, PUNE:411 005),
HAVING BRANCH OFFICE AT T.C.6/2427, P.O.CONVENT ROAD,
OPP.SACRED HEART SCHOOL, THRISSUR-680 020.
2. AUTHORIZED OFFICER,
BANK OF MAHARASHTRA, HAVING BRANCH OFFICE AT
T.C.6/2427, P.O.CONVENT ROAD, OPP.SACRED HEART SCHOOL,
THRISSUR-680 020.
3. RAMANAN, S/O.KELAPPAN, AGED 63 YEARS,
PANDANCHERY HOUSE, MUDAKKUZHA KARA, VENGOOR WEST
VILLAGE, KUNNATHUNADU TALUK P.O., NOW RESIDING AT
GREENVALLEY, PERUMBAVOOR, ERNAKULAM-683 542.
4. ANITHA, AGED 42 YEARS, W/O.DANIEL,
KANNAMPUZHA, THATTAYIL LANE, CHELAKKATTU KARA
DESOM, P.O.CHIYYARAM VILLAGE, THRISSUR TALUK-689 677.
BY ADV. SRI.BIJU BALAKRISHNAN FOR R1
SRI.N.K.KARNIS FOR R3
SRI.H.HAMZA ROWTHER FOR R4
SRI.V.K.PEERMOHAMED KHAN FOR R4
SRI.H.SUNIL FOR R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ami/
C.K.ABDUL REHIM, J.
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W.P.(C).No.4714 of 2011
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Dated this the 29th day of June, 2011.
J U D G M E N T
This writ petition is filed seeking to quash Ext.P1 notice of proclamation of sale issued notifying sale of certain immovable properties, pursuant to a proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioner inter alia seeks declaration to the effect that, respondents 1 and 2 have no right to proceed against the property in question.
2. Contention of the petitioner is that, the property now proclaimed for sale was in the name of the petitioner and a sale deed was executed in favour of the 3rd respondent for securing some amount borrowed by the petitioner in favour of the 3rd respondent, on the basis of a specific understanding that as and when amount is repaid, a release deed will be executed. According to the petitioner, in violation of the understanding the 3rd respondent had 2 W.P.(C).No.4714 of 2011 transferred the property in favour of the 4th respondent and all the respondents colluded together to create a mortgage on the property for securing loan availed from respondents 1 and 2. It is contended that the property which contains a residential house is still in the possession of the petitioner and the petitioner came to know about the fraud only when Ext.P1 notice was published. It is stated that, the petitioner had already approached the Civil Court by filing a suit for declaration to nullify the transfer as illegal and to set aside the sale deed executed by him. But since the coercive steps under the SARFAESI Act is being pursued, the petitioner seeks interference of this Court to restrain such proceedings.
3. When the writ petition came up for consideration, this Court issued an interim order directing to defer confirmation of the sale if any takes place, subject to condition of the petitioner remitting the sum of Rs.2 lakhs. It is reported that the petitioner had deposited the said 3 W.P.(C).No.4714 of 2011 amount in a separate account with respondents 1 and 2. It is also conceded that, the sale proclaimed through Ext.P1 notice has not been materialised.
4. Learned counsel appearing for the 4th respondent contended that, the property was purchased by her for valuable consideration from the 3rd respondent and that she is in occupation of the said property. The contention raised by the petitioner to the effect that the property is still in his possession is stoutly denied. It is further contended that the 4th respondent had already approached the DRT challenging the proceedings initiated under the SARFAESI Act and the DRT had already stayed the further proceedings.
5. Heard; standing counsel appearing for the respondent Bank. It is contended that the mortgage was created by deposit of title deed belonging to the 4th respondent. As on the date of the creation of the mortgage, the 4th respondent was holding valid marketable title over the property and hence the mortgage is clearly legal and 4 W.P.(C).No.4714 of 2011 valid.
6. Considering the rival contentions it is evident that the claim now raised by the petitioner with respect to the title over the property, need adjudication by a competent civil court or other forum. Since the 4th respondent is disputing the claim raised by the petitioner regarding his title, it is not at all justifiable for this Court to enter upon any findings regarding such claims. Further it is noticed that the proceedings initiated under the SARFAESI Act is not amenable to challenge in the writ jurisdiction of this Court, in view of the effective alternative remedy provided under Section 17(1) of the said Act. The petitioner had already approached the civil court to get the alleged right declared. It is also noticed that the proceedings challenged in this writ petition stand impugned in a securitisation application filed before the DRT by the 4th respondent. If the petitioner has got any further grievance regarding the coercive steps initiated under the SARFAESI Act, it is left 5 W.P.(C).No.4714 of 2011 open to him also to invoke the statutory remedy provided under Section 17(1), if permissible under law. However, a writ petition in this regard could not be entertained to adjudicate the disputed issues.
7. Therefore, the writ petition is dismissed without prejudice to rights of the petitioner to approach the appropriate forum seeking reliefs.
C.K.ABDUL REHIM, Judge ami/