IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 4671 of 2009(F) ------------------------- CMP.4987/2008 of C.J.M.,TRIVANDRUM .................... PETITIONER(S): --------------- K.RAMACHANDRAN NAIR, T.C. 35/106, VALSA MANDIRAM, VETTAMUKKU, THIRUMALA, TRIVANDRUM. BY ADV. SRI.SANTHAN V.NAIR RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY (FINANCE BANKING), MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI. 2. THE CHIEF GENERAL MANAGER, STATE BANK OF TRAVANCORE, KERALA CRICLE, POOJAPPURA,' THIRUVANANTHAPURAM. 3. THE AUTHORIZED OFFICER, CHIEF MANAGER (ADVANCES), STATE BANK OF TRAVANCORE, (ASSOCIATE OF STATE BANK OF INDIA) VAZHUTHACAUD BRANCH, VAZHUTHACAUD, TRIVANDRUM. 4. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, VAZHUTHACAUD BRANCH, VAZHUTHACAUD, THIRUVANANTHAPURAM. 5. VALSALA MADHU, B-2-1, NO.37, VIJI FLAT, PINJALA SUBRAHMANYAM STREET, T.NAGAR, CHENNAI. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG. R2, TO R4 BY ADV;SRI;SAJI VARGHESE, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.4671 OF 2009 ------------------------------------------- Dated this the 12th day of February, 2009 JUDGMENT 1. The 5th respondent and her husband Madhusoodhanan mortgaged an item of property to the 4th respondent as security interest for the purpose of a loan. According to the petitioner, the 5th respondent, thereafter, put him as a tenant and later, attempted to dispossess him. He, accordingly, obtained Ext.P1 order, which essentially is a judgment in O.S.903/07 of the Munsiff Court, Thiruvananthapuram, decided by the Additional Munsiff who officiates the Rent Control Court, Trivandrum. By virtue of that, the petitioner has a protective order as against the 5th respondent from being evicted otherwise than with the due process of law. Thereafter, on account of default in repayment, proceedings were initiated under the SARFAESI Act. The petitioner, stated to be on the instance of the 5th respondent, paid certain amounts to the bank. It is stated that the understanding is WPC.4671/09 Page numbers that the petitioner would be entitled to debit it from the refundable deposit retained by the 5th respondent. 2. Challenging the SARFAESI Act proceedings, the petitioner raised three contentions. The Chief Judicial Magistrate has issued order under Section 14 and therefore, the petitioner is likely to be dispossessed as against which he has no other remedy. The so called security interest is not a security interest and does not fall under the SARFAESI Act by virtue of the exemption under Section 31 of that Act read with proviso to Section 60(1) of Code of Civil Procedure, 1908 and also by virtue of sub sections 31(e) and (g) of the SARFAESI Act. He also impeaches the action under Section 13(4) without serving on him notice under Section 13(2) of the SARFAESI Act. 3. The plea that the petitioner was entitled to notice under Section 13(2); that he is entitled to contest the proceedings under the SARFAESI Act; that the property in question is exempted from the purview of the SARFAESI Act and that he is entitled to continue in possession de hors the mortgage WPC.4671/09 Page numbers created by the 5th respondent in favour of the bank and still further, he is entitled to continue in possession even under the mortgage/security interest, are matters which can be raised in a securitisation application under Section 17 of the SARFAESI Act. That being a comprehensive procedure and the proceedings under Section 14 of the SARFAESI Act being only a procedure for enforcement of the police power of the State, it goes without saying that when the Debts Recovery Tribunal entertains a securitisation application against a measure taken under Section 13(4), further enforcement of any order under Section 14 will stand governed by the interlocutory orders or the final order that may be issued by the DRT. 4. For the aforesaid reasons, I am clear in my mind that the petitioner has efficacious alternate remedy. Hence, the writ petition is dismissed without prejudice. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.13/2.