IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 382 of 2007(U)
1. K.ANIL KUMAR, S/O. KARTHIKEYAN,
... Petitioner
Vs
1. RESERVE BANK OF INDIA,
... Respondent
2. THE SOUTH INDIAN BANK LIMITED,
For Petitioner :SRI.MILLU DANDAPANI
For Respondent :SRI.K.PRABHAKARAN, SC,SOUTH INDIAN BANK
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :10/04/2007
O R D E R
S.SIRI JAGAN, J
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W.P.(C)NO.382 of 2007
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Dated this the 10th day of April, 2007
JUDGMENT
The petitioner, a defaulter in the repayment of loan
amounts due from the second respondent challenges proceedings
initiated by the second respondent bank under the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act 2002(Act). They raised three contentions.
First is that the bank has already obtained a decree and
execution of the said degree is in progress. Therefore a parallel
initiation of proceedings for execution of the decree under the Act
is not permissible. Second contention is that since the security
interest is an agricultural property and the Act itself excludes
the application of the Act to agricultural properties, the
proceedings initiated are without jurisdiction.
2. I have heard the learned counsel for the petitioner as
also the learned Standing Counsel appearing for the second
respondent. The second respondent is a schedule bank which is
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not a nationalised bank. Neither the Government nor any other
governmental institution has any share or interest in the second
respondent bank. As such, no writ petition under Article 226 of
the Constitution of India would be maintainable against the
second respondent bank except in respect of a public function by
the 2nd respondent bank. Recovery of loan amounts due by resort
to proceedings under the Act cannot be stated to be a public
function which attracts jurisdiction under Article 226 of the
Constitution of India.
Secondly, it is settled law as decided by a Division Bench of
this Court that even when a suit for realisation of the amount is
pending proceedings under the Act, which is maintainable, of
course, the learned counsel for the petitioner submits that the
bank has tried to execute the decree by resorting to proceedings
under the Act. I do not see the difference in the same simply
because in Ext.P2 notice, the amount due is shown as a decree
debt as per the suit that does not make the proceedings initiated
under the Act as one in execution of the decree itself. Admittedly,
Ext.P2 is a notice issued under the Act. That being so, just
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because a decree has been passed and that the decreetal amount
has been shown as the amount due in that notice, the notice is
not in any way vitiated.
In so far as the contention regarding the security interest
being agricultural property, I am afraid that I cannot go into the
question except by taking evidence which I cannot do in
proceedings under Article 226 of the Constitution of India.
Further, a petitioner has an effective alternate remedy by way of
filing an appeal before the Debt Recovery Tribunal to establish his
case in that respect also. Without prejudice to such right, this
writ petition is dismissed for all the above reasons.
S.SIRI JAGAN, JUDGE
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