IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 17370 of 2008(P) -------------------------- PETITIONER: ------------------- 1. RIMI ALBI, RUKHIA BUILDING, GOVERNMENT PRESS ROAD, STATUS, THIRUVANANTHAPURAM 2. LIZZY REMY, W/O.RIMI ALBI, SO.SO. BY ADV. SRI.D.KISHORE SMT.MEERA GOPINATH RESPONDENTS: ---------------------- 1. KERALA STATE, CO.OP.BANK , REP. BY ITS MANAGING DIRECTOR, REGIONAL OFFICE OVER BRIDGE JUNCTION, THIRUVANANTHAPURAM-695001 2. THE AUTHORISED OFFICER, DO.DO. 3. V.G.SOBHANAKUMARI, ARCHANA NIVAS, PALKULANGARA, THIRUVANANTHAPURAM 4. M.P.RADHAKRISHNAN, RAJAGIRI HOUSE, V/6628, KOLAKODE, VELANAD PO.,THIRUVANANTHAPURAM 5. G.SATHEESAN, GANESAM, KALLADIMUKHAM MANACAUD PO., THIRUVANANTHAPURAM. R1 & R2 BY ADV.SRI.NAGARAJ NARAYANAN. BY ADV. SRI.SUMAN CHAKRAVARTHY FOR R5. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.17370 of 2008 ================================== Dated this the 22nd day of July, 2008. JUDGMENT The third respondent availed a loan from the first respondent. The fourth respondent offered an item of property as security for that loan. On failure to repay, the first respondent, through the second respondent, invoked the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, Act 2 of 2002, hereinafter referred to as the “SARFAESI Act” and the Rules thereunder, namely, the Security Interest (Enforcement) Rules, 2002, hereinafter referred to as the “Rules”. 2. On 14-10-2004, respondents 1 and 2 are shown to have taken recourse to Section 13(4) of the SARFAESI Act thereby taking symbolic possession. It appears that the petitioners, a WPC17370/08 -:2:- couple, purchased the property from the fourth respondent as per Ext.P1 on 7-2-2007. It obviously means that what was purchased could have been only the equity of redemption in relation to the mortgage created by the fourth respondent in favour of the first respondent, even if such a mortgage right had survived the exercise under Section 13(4) on 14-10-2004. That question is not being considered in this case and is accordingly left open. 3. Petitioners moved this Court seeking instalment facility to avert the sale. Being assignees of the mortgagor, it was found that the petitioners have no shred of legal right to sustain the claim in that writ petition. Accordingly, Ext.P2 judgment was issued on 26-11-2007 whereby, it was held that it would be wholly unjust and unreasonable to prevent the bank from reaching at its due funds by sale of the property in question. WPC17370/08 -:3:- It was held that the petitioner therein was only an inter-meddler and that there was no equity that weighed in her favour. Since the bank was proceeding to sell the property, it was clarified that, if she is prepared to purchase the property for the amount covered by the loan, it would be open for her to do so and the bank to sell the property to her. 4. On 22-12-2007, petitioners issued Ext.P6 offering to pay an amount of Rs.1,00,000/- and the remaining in instalments, on being appropriately informed. Ext.P6(a) acknowledgement card shows that Ext.P6 was delivered on 22-12-2007. On 25-3- 2008, the first petitioner is stated to have submitted Ext.P3 calling for information regarding the total outstandings, on the premise that he had a discussion with the superior officer of the bank in that regard. The sale was thereafter held on WPC17370/08 -:4:- 31-3-2008, going by the statement on record and sale certificate, Ext.P4, was issued 24-4-2008, on which day the petitioners were dispossessed de facto. 5. This writ petition is filed on 10-6-2008, after issuing Ext.P5 notice on 2-6-2008 challenging the issuance of sale certificate. 6. Two grounds are urged in support of the writ petition. Firstly, it is contended that the Act and Rules do not provide any forum or opportunity to challenge a sale as vitiated on counts of illegality or irregularity etc. or even to have the sale set aside by depositing the amounts covered by the sale and also any further or other amounts. The second contention is that the property was not appropriately described and the description of the property in Ext.P4 sale certificate and Ext.P1 sale deed varies. WPC17370/08 -:5:- 7. On the ground of absence of provisions under the Act and Rules, petitioners contend that they are disabled from invoking the provisions of Section 17 of the Act and challenge the sale before the Debts Recovery Tribunal and accordingly seeks a declaration that the Act, to the extent it does not stipulate a provision to set aside sale on the ground of irregularity and fraud and to the extent it does not allow the secured debtor or any person interested in the secured asset to have the sale set aside on deposit, is illegal. What has been argued touching the alleged infirmity of the legislation would show that the petitioners really expect that the legislation should contain a provision similar to Rules 89 and 90 of Order XXI of the Code of Civil Procedure and the similar provisions among the Rules contained in Schedule II of the Income Tax Act, 1961. The absence of such provisions in the Act in question cannot be a test WPC17370/08 -:6:- as to the constitutionality of that legislation. In judicial review of legislative action, the absence of a provision, as urged by the petitioners, is of no consequence. This is all the more so because, Section 34 of the Act, which provides for exclusion of jurisdiction of the civil court provides such exclusion only to the extent provisions and recourse to the DRT is provided by the Act. Not only that, one cannot insist on a particular forum for agitating grievance referable to a particular bunch of facts. Such cause of action has to be agitated before any special tribunal, if so constituted or otherwise, as to be put before the competent civil court in view of Section 9 of the CPC. The absence of provisions similar to Rules 89 and 90 of Order 21 of CPC in the Act in question, is no ground on which the said statute could be treated as unconstitutional. That contention, therefore, fails. Consequently, Relief No.(i) is refused. WPC17370/08 -:7:- 8. On the refusal of Relief No.(i) in the writ petition, it would be open to the petitioners to have remedies before the appropriate court or courts, as the case may be, subject to just exceptions by the bank. It is clarified that this judgment does not touch upon the maintainability of the writ petition. 9. A further direction is also sought for to permit the petitioners to deposit the loan amount and have full rights over the property covered by Ext.P1. This relief is sought by projecting the last sentence in Ext.P2 judgment, as nothing but the substance of Section 13(8) of the Act, which provides an opportunity to the secured debtor to save the property from sale by depositing the entire amount before sale. The learned counsel for the petitioners requested that the said question be left open to exclude any prejudice in WPC17370/08 -:8:- appropriate sustainable proceedings. This submission is recorded and Relief No.(ii) is rejected accordingly. Writ petition fails. It is hence dismissed. Thottathil B.Radhakrishnan, Judge. sl.24.7