D.Suryanarayana Iyer vs The Punjab National Bank Ltd on 20 October, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2325 of 2009()


1. D.SURYANARAYANA IYER,
                      ...  Petitioner

                        Vs



1. THE PUNJAB NATIONAL BANK LTD.,
                       ...       Respondent

                For Petitioner  :SRI.SAJEEV KUMAR K.GOPAL

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice A.K.BASHEER

 Dated :20/10/2009

 O R D E R
                 S.R.BANNURMATH, C.J. & A.K.BASHEER, J.
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                                  W.A.No.2325 OF 2009
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                      Dated this the 20th day of October 2009

                                          JUDGMENT

A.K.BASHEER, J.

Appellant is the petitioner in the writ petition. He filed the writ petition

praying for issuance of a writ in the nature of certiorari to quash Ext.P4 notice

issued by the respondent under the SARFAESI Act informing the appellant that

possession of the mortgaged property would be taken by the bank at his risk and

cost if the entire dues were not cleared immediately.

2. Ext.P4 notice was assailed based on the plea that the respondent was

not entitled to take recourse to the provisions contained under the SARFAESI

Act simultaneous with the proceedings pending before the Debt Recovery

Tribunal. Admittedly, the Bank has filed O.A.55/06 before the Debt Recovery

Tribunal, Ernakulam for recovery of the debt from the petitioner.

3. The learned Single Judge however relying on the decision in M/S

Transcore V. Union of India and another [AIR 2007 SC 712] held that the

above action of the Bank cannot be faulted. The writ petition was disposed of

making it clear that the appellant/petitioner will be entitled to challenge the

action of the bank as and when it initiates any coercive steps to take possession

of the mortgaged property.

4. While impugning the above judgment, it is contended by the learned

counsel for the appellant that the learned Single Judge has not adverted to the

crucial fact that the primary contention of the appellant before the Debt

Recovery Tribunal is that several of the crucial documents produced by the bank

W.A.No.2325 OF 2009
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were forged ones in its attempt to overcome the bar of limitation. In short,

according to the appellant, the bank will not be entitled to recover any amount

which is allegedly due from him. We do not propose to make any observation on

the said contention in view of the order that we propose to pass.

5. The primary apprehension of the appellant is that his rights would be

adversely affected, if the bank is allowed to proceed against the mortgaged

property while the larger issues as regards the question of limitation and the

alleged forgery made by the bank are pending consideration before the Debt

Recovery Tribunal. There is considerable merit in the above contention.

6. However, we do not find any reason why the appellant cannot move the

Debt Recovery Tribunal itself and seek appropriate reliefs. If such a motion is

made, the Debt Recovery Tribunal shall pass appropriate orders in accordance

with law.

Appeal is disposed of in the above terms.

(S.R.BANNURMATH)
CHIEF JUSTICE

(A.K.BASHEER)
JUDGE
jes