IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 35644 of 2008(R) -------------------------- PETITIONER(S): --------------- 1. ALSTAR METAL COMPANY PVT. LTD., MARKET JUNCTION, MANNAR 689 622 REPRESENTED BY ITS MANAGING DIRECTOR, P.A.AZEEZ KUNJU. 2. P.A.AZEEZ KUNJU, S/O.ASSANARKUNJU, KOLLEZHA MADOM, MANNAR-689 622. 3. HOWA BEEVI, W/O.AZEEZ KUNJU, KOLLEZHA MADOM, MANNAR 689 622. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): --------------- 1. STATE BANK OF INDIA, THIRUVALLA MAIN BRANCH, THIRUVALLA-689 101 REPRESENTED BY ITS ASSISTANT GENERAL MANAGER. 2. THE AUTHORISED OFFICER, STATE BANK OF INDIA, THIRUVALLA MAIN BRANCH, THIRUVALLA-689101. 3. SHAJI.P.JOHN, S/O.P.S.JOHN, KIZHAKKEDATHU PUTHEN VEEDU, KADAPRA 689 630. ADV. SRI.P.V.SURENDRANATH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.35644 OF 2008 ------------------------------------------- Dated this the 16th day of December, 2008 JUDGMENT Heard. 2. Petitioners are debtors of the first respondent. That bank initiated action under the SARFAESI Act through the second respondent authorised officer. Petitioners complain that there is no transparency in the matter and the proceedings under the SARFAESI Act is without notice and is malafide. It is alleged that the sale has been conducted without considering the request of the petitioners for settlement of the transaction. As of now, learned counsel for the Bank submits that even before this matter was considered and interim order issued on 3.12.2008, sale was confirmed and later, sale certificate was issued on 26.11.2008. 3. The contentions of the petitioners relate to the questions whether the initiation of proceedings under the SARFAESI Act was with jurisdiction, in as much as where there was such a debt WPC.35644/08 Page numbers which is recoverable in terms of the Act. It is also the contention that the sale proceedings are without notice and is malafide. The contention whether the petitioners had made a firm offer and whether the bank had exceeded its authority under the SARFAESI Act in classifying the account as NPA, on the face of any such request may also be a matter for consideration. Petitioners have a further case that the third respondent is not a person who participated in the auction. There is a specific plea in this regard in the writ petition. Learned counsel for the bank, however, states that even the sale certificate is issued in favour of the third respondent. 4. The aforesaid matters would show that the disputes between the parties can be resolved only on determination of mixed questions of facts and law. It cannot, therefore, be appropriate for the writ court to interfere with the matter, particularly when the petitioners have sufficient alternate efficacious remedy under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal. Without prejudice to that WPC.35644/08 Page numbers course, it is ordered that if any amount has been deposited by the petitioners following the interim order dated 3.12.2008, the same will be returned to them. Learned counsel for the bank states that no such deposit was made and all that the petitioners wanted is earmarking of certain amounts lying in deposits in the name of certain other persons. The writ petition is closed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.