IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15159 of 2010(T)
1. MAYADEVI.K.U, WIFE OF E.A.JAYAKUMAR,
... Petitioner
2. E.A.JAYAKUMAR, SON OF AYYAPPAN PILLAI,
3. SEENA, WIFE OF JOHNSON, PROPRIETRIX,
Vs
1. STATE BANK OF INDIA,
... Respondent
2. THE DEBT RECOVERY TRIBUNAL,
3. THE CHIEF MANAGER,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.K.K.CHANDRAN PILLAI
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :25/05/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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W.P(C) No.15159 of 2010-T
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Dated this the 25th day of May, 2010.
J U D G M E N T
The petitioners are challenging the course pursued by the
respondent Bank in proceeding against `A and C’ schedule
properties shown in Ext.P1 O.A filed before the Debt Recovery
Tribunal, to be sold in public auction, invoking the remedy under
the SARFAESI Act; after turning down the request of the petitioners
to proceed against the property shown as Schedule B, over which
also security interest has been created and is situated very near to
the M.G Road and by the side of the property belonging to the
`Veekshanam Press, which may generate much more amounts than
that is required to clear the entire liability of the petitioner. The
request made by the petitioner in this regard has been turned down
in a single line reply, as borne by Ext.P6 issued by the Bank.
2. The case of the petitioner as put forth by the learned
counsel is that, pursuant to the attachment ordered by the Debt
Recovery Tribunal in Ext.P3 application preferred by the respondent
Bank, further proceedings have been pursued, which are not correct
W.P(C) No.15159 of 2010-T 2
or sustainable and that the petitioner has already filed a review
petition, which is stated as still pending. It is in the said
circumstances, that the present Writ Petition has been filed under
Article 227 of the Constitution of India, invoking the supervisory
jurisdiction over the Debt Recovery Tribunal.
3. Even though the Writ Petition has been filed under Article
227 of the Constitution of India, the prayers raised are the
following:
“i) to call for the records leading to Ext.P6 and P7
and quash the same by issuance of a writ of certiorari or any
other writ, direction or order.
ii) to issue a writ of mandamus or any other writ,
direction or order, directing the first respondent bank to
proceed against the Schedule B property in Ext.P1 first and
bring them for sale/auction so as to recovery the amount due
from the petitioners and other defendants in O.A.No.194 of
2008 and thereafter to proceed against the property in
Schedule A and C, in case it does not satisfy the amount due
to the Bank.
direction orto
iii) issue a writ of mandamus or any other writ,
order, directing the Bank to consider and pass
orders on Ext.P5 and till then, keep in abeyance the future
proceedings pursuant to Ext.P7.
iv) to grant such other reliefs as this Honourable
Court may deem fit in the circumstances of the case.
The sequence of events as brought to the notice of this Court
W.P(C) No.15159 of 2010-T 3
shows that the B schedule property (called as `Veeshanam property’)
was purchased by the second petitioner in the year 2005 and it was
after creating security interest over the said property as well, along
with A and C schedule properties belonging to the petitioners a loan
was procured from the respondent for meeting the requirement of
the petitioners. But the petitioner could not satisfy the repayment
on time, under which circumstances, the Bank declared the account
as ‘NPA’ and proceed with further steps under the SARFAESI Act and
Ext.P7 is the notice of sale scheduled on 26.5.2010, wherein only A
and C schedules have been shown as subjected to the auction.
4. The case of the petitioners is that Ext.P5 representation
was submitted by the petitioners on 30.3.2010 seeking to proceed
against the `Veekshanam property’ (B schedule), which was declined
by the Bank by sending Ext.P6 reply dated 5.4.2010. The reason,
though not discernible from Ext.P6, as put forth in the counter
affidavit filed is that, according to the respondent Bank, the
petitioner is not having the title over the property in question (B
Schedule) and that there was obstruction from other corners as well,
with regard to the rights and enjoyment over the said property. The
averments raised by the petitioners have been chosen to be
W.P(C) No.15159 of 2010-T 4
rebutted by the Bank, by filing a detailed counter affidavit stating
that even though it was stated in Ext.P1 O.A filed before the Debt
Recovery Tribunal that the second petitioner is the owner of the B
schedule property having possession and other rights, it is revealed
that the position is something else.
5. The learned counsel for the respondent Bank submits
that, the case moulded by the petitioners referring to the course and
events in respect of Exts.P3 and P4 is not correct or sustainable. It
is brought to the notice of this Court that Ext.P3 application for
attachment by Bank was in respect of yet another property owned by
the second petitioner in Edappally Village, Edappally Sub District
specifically giving the relevant schedule and this property that was
ordered to be attached by the Debt Recovery Tribunal, which in turn
has absolutely no connection with the `B schedule’, forming the
subject matter of the present Writ Petition. This being the position,
the pendency of Ext.P4 application before the DRT is no bar for the
respondents in proceeding against the property concerned, which
was subjected to the sale as notified in Ext.P7.
6. Even though the factual particulars in this regard have
been brought to light in the counter affidavit filed by the Bank,
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nothing is forthcoming from the part of the petitioner in the reply
affidavit; particularly with regard to the scope and applicability of
Exts.P3 and P4 and the connection with `B Schedule’ property. This
being the position, the attempt of the petitioner to invoke the
supervisory jurisdiction under Article 227 in respect of the alleged
jurisdictional error or the course pursued by the Tribunal is quite
out of place and no interference is possible. More so, when the
petitioner has not chosen to produce the alleged order of
attachment in respect of the property concerned. This becomes
very significant, in view of the submission made from the part of the
Bank that, in so far as the `B schedule’ property is concerned, there
is no necessity to have it attached, since security interest has been
created over all the three properties `A, B and C’ which do not
require to be attached for being proceeded against. It is also stated
that the averments made by the petitioner that Schedule B property
alone is the mortgaged property, whereas A and C schedule
properties are collateral properties are not correct or sustainable.
7. The next question to be considered is whether there is
an infringement of the legal provisions on the part of the Bank while
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proceeding against A and C Schedule properties before proceeding
against B Schedule property. It is stated by the learned counsel for
the petitioner that, the petitioner was ready and willing to have the
property sold in private sale, which however could not be
implemented because of the alleged recalcitrant attitude of the
Bank. There is absolutely no material to sustain or support the said
contention. That apart, when security interest is created over
different properties for meeting the requisite extent of the loan
amount, it is for the secured creditor to choose his rights and
remedies and to proceed against the particular property concerned.
8. The reasons for taking no steps against the `B Schedule’
property, have been given in the counter affidavit, referring to the
adverse circumstances including the various litigations between
different parties in respect of the said property, before the Civil
Court and elsewhere. It is also stated that even the second
petitioner himself had approached this Court earlier, by filing W.P(C)
No.20410 of 2007, seeking for police protection. It is further stated
that the concerned property, stated as purchased by the petitioner
in the year 2005, was actually the property belonging to the late Sali
Ibrahim Sait, who had handed over the possession to one
W.P(C) No.15159 of 2010-T 7
Mr.K.P.Noorudeen, on the basis of the agreement executed in the
year 7.11.1975 prescribing the total sale consideration as
Rs.75,000/-, out of which Rs.50,000/- was paid/accepted and the
balance was stipulated to be paid as specified therein. It is also
stated that the property later came to the hands of the `Veekshanam
Printing and Publishing Company Ltd’, who had constructed certain
buildings, after availing loan from the UCO Bank and some other
litigations are also there, in this regard, as to the rights and
liberties. It is further stated that the very same property ie. the `B
Schedule’ property stated as belonging to the second petitioner was
agreed to be sold to M/s.Skyline Builders and a sum of Rs.40 lakhs
was accepted as advance sale consideration. But because of some
disputes, the prospective purchaser was not willing to proceed with
the sale and accordingly, a civil suit was filed against the second
petitioner for return of the advance sale consideration, which is
stated as decreed. It is also revealed from Ext.P11 judgment passed
by the Civil Court that M/s.Skyline Builders withdrew from
proceeding further with the sale, because of some boundary
disputes. However, it remains the fact that the said party has
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obtained a decree in respect of the said property. Because of the
multiplicity of the litigations involving the said property ie. the B
Schedule, it is contended by the Bank that the said property cannot
be compelled to be sold first, before proceeding against the other
properties ie. A and C Schedules; submits the learned counsel.
9. This Court finds considerable force in the said
submission, more so, when it is for the security creator to decide as
to which of the properties offered as security should be proceeded
against first, for realisation of the amount stated as due from the
parties concerned; unless it is substantiated that the course being
pursued by the Bank/secured creditor is quite arbitrary or contrary
to the relevant provisions of the statute or the terms of agreement,
as the case may be. In the instant case, no such adverse
circumstance is pointed out or established and the only contention
of the petitioner is that `B Schedule’ property, if subjected to sale is
likely to generate more amounts and that the residence situated in
the other property could be spared. Both the above contentions are
not relevant, to place any hurdle in the way of the respondent Bank
from proceeding against the properties scheduled to be sold vide
Ext.P7 notification.
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10. In the above facts and circumstances, this Court finds it
difficult to accept the version of the petitioners that the matter is
liable to be interfered invoking the power under Article 227 of the
Constitution of India, nor does it require to be entertained by
issuing a Writ of Mandamus under Article 226. Accordingly
interference is declined and the Writ Petition is dismissed.
Sd/-
P.R.RAMACHANDRA MENON
JUDGE
//True Copy//
P.A to Judge
ab
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