IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30363 of 2008(M)
1. K.THANKAMMA, SISIRAM, VELLALIMBU VEEDU,
... Petitioner
Vs
1. THE FEDERAL BANK LTD.,
... Respondent
2. SENIOR MANAGER, THE FEDERAL BANK LTD.,
3. JYOTHIKUMAR V., JYOTHI BHAVAN,
4. J.S. PADMA BAI,JYOTHI BHAVAN,
For Petitioner :SRI.P.K.NIJOY
For Respondent :SRI.GEORGE VARGHESE (MANACHIRACKEL)
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/08/2009
O R D E R
P.R. RAMACHANDRA MENON J.
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W.P. (C) No. 30363 of 2008
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Dated, this the 7th day of August, 2009
JUDGMENT
The petitioner has approached this Court, with some what a
strange relief prayed for on behalf of her son, who stood as a guarantor
in connection with the loan transaction availed by the 3rd respondent
from the first respondent Bank. The prayers of the petitioner are; that
the property belonging to the petitioner’s son, over which the security
interest was created, shall not be proceeded against and that the Bank
might be directed to proceed against the 3rd respondent/principal debtor
and 4th respondent – co-obligant.
2. Prima facie it appears that, the idea and understanding of the
petitioner as to the scope of challenge, is wrong and misconceived,
primarily for the reason that, Sub Section 11 of Section 13 of the
SARFAESI Act clearly stipulates that, without prejudice to the rights
conferred on the secured creditor, the secured creditor shall be entitled
to proceed against the guarantors or sell the pledged assets without
first taking any of the measures specified in clauses (a) to (d) of Sub
section (4) in relation to the secured assets under this Act.
3. This being the position, the prayer of the petitioner to direct the
Bank to proceed against the principal borrower and his assets before
proceeding against the guarantors is not correct or sustainable. Yet
WP (C) No. 30363 of 2008a
: 2 :
another aspect to be noted is that, the petitioner is admittedly not a
guarantor to the loan transaction. So also, it is not the petitioner’s
property, over which the security interest has been created while
availing the loan. The petitioner also does not have a case that the
proceedings taken by the Bank against the property belonging to her
son have been sought to be challenged on the basis of ‘any power of
attorney’ executed by the son. In other words, the petitioner is a
stranger to the transaction in question and hence the petitioner does
not have any ‘locus standi’ to file the present Writ Petition.
The Writ Petition fails and it is dismissed accordingly.
P. R. RAMACHANDRA MENON, JUDGE
kmd