IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 WP(C).No. 21507 of 2011(K) ---------------------------------------- PETITIONER(S): ------------------------- SREEKUMAR C.K, S/O.KRISHNAN NAIR AGED 41 YEARS, RESIDING AT NANDANAM, PEEZHOORKONAM DESOM,ATHIYANOOR VILLAGE, BALARAMAPURAM,REP BY THE P/A HOLDER KRISHNAN NAIR, RESIDING AT NANDANAM,PEEZHOORKONAM DESOM, ATHIYANOOR VILLAGE,BALARAMAPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.VINAY MENON.V. RESPONDENT(S): ---------------------------- 1. BANK OF INDIA, P.T.P NAGAR BRANCH RANGAM 6/1654, VETTAMUKKU TIRUMALA P.O, THIRUVANANTHAPURAM.PIN- 695 006. 2. AUTHORISED OFFICER, BANK OF INDIA P.T.P NAGAR BRANCH RANGAM 6/1654, VETTAMUKKU,TIRUMALA P.O,THIRUVANANTHAPURAM.PIN- 695 006. 3. P.K.NANDAKUMAR, HARI GOWRI M.P.4/272 (B) SREEKRISHNA GARDENTS,MALAYINKIL P.O, THIRUVANANTHAPURAM- 695 571,PROPRIETOR, VIGNESWARA ENTERPRISES, HARDWARE AND STATONERIES. 4. V.S SINDHU, W/O.P.K.NANDAKUMAR “HARI GOWRI”,M.P 4/272 (B),SREEKRISHNA GARDENS MALAYINKIL P.O, THIRUVANANTHAPURAM- 695 571. R1 & R2 BY ADV.SRI.DEVAN RAMACHANDRAN,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.21507/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE POWER OF ATTORNEY NO.4/28/2010, EXECUTED BY THE PETITIONER IN FAVOUR OF HIS FATHER KRISHNAN NAIR. P2 COPY OF THE SALE DEED NO.53/2010 DATED 4/1/2010 EXECUTED BY THE 3RD RESPONDENTS IN FAVOUR OF THE PETITIONER. P3 COPY OF THE TAX RECEIPT NO.1478903 BOOKNO.14790 DATED 18/5/2010 ISSUED BY THE VILLAGE OFFICER, MALAYINKEEZHU IN RESPECT OF 9.400 CENTS OF PROPERTY. P4 COPY OF THE THANDAPER ACCOUNT NO. IN RESPECT OF 9.400 CENTS OF PROPERTY. P5 COPY OF THE LOCATION CERTIFICATE ALONG WITH THE SKETCH ISSUED BY THE VILLAGE OFFICER, MALAYINKEEZHU DATED 19/5/2010 IN FAVOUR OF THE PETITIONER. P6 COPY OF THE POSSESSION CERTIFICATE DATED 19/5/2010 ISSUED BY THE VILLAGE OFFICER, MALAYINKEEZHU IN FAVOUR OF THE PETITIONER. P7 COPY OF THE SALE DEED NO.4559/2005 DATED 21/12/2005. P8 COPY OF THE SALE DEED NO.418 OF 2006 DATED 04/02/2006. P9 COPY OF THE SETTLEMENT DEED NO.110 OF 2005 DATED 07/11/2005. P10 COPY OF THE SALE DEED NO.1013 OF 1990 DATED 26/04/1990 P11 COPY OF THE SETTLEMENT DEED NO.2581 OF 1978,DATED 23/09/1978. P12 COPY OF THE SALE DEED NO.688 OF 2005, DATED 21/02/2005. P13 COPY OF THE ENCUMBRANCE CERTIFICATE NO.2481 DATED 25/5/2010. P14 COPY OF THE CMP NO.3861/2010 FILED BY THE 2ND RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM. P15 COPY OF THE NOTICE DATED 12/11/2009. P16 COPY OF THE ORDER DATED 19/1/2011 ISSUED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM, IN CMP.NO.3861 OF 2010. P17 COPY OF THE POSSESSION NOTICE, DATED 03/05/2010, ISSUED BY THE 2ND RESPONDENT. 2/- -2- WP(C)NO.21507/2011 P18 COPY OF THE PAPER PUBLICATION, CARRIED OUT BY THE 2ND RESPONDENT, DATED 03/05/2010. P19 COPY OF THE CLAIM PETITION CMP.NO.980/2011 IN CMP.NO.3861/2011,FILED BY THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM, DATED 31/3/2011. P20 COPY OF THE CMP.NO.3864 OF 2010 FILED BY THE SASI, S/O.SAMUEL, BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM RESPONDENTS 1 AND 2, DATED 14/3/2011. P21 COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE TRIVANDRUM IN CLAIM PETITION CMP.NO.980/2011, DATED 27/6/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.21507 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2011 J U D G M E N T The petitioner is the owner of certain properties. The respondents 1 & 2 have initiated proceedings against that properties under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for recovery of loan amounts due from the 3rd respondent. The bank filed an application before the Chief Judicial Magistrate, Thiruvananthapuram under Section 14 of the Act. The petitioner raised a contention before the CJM that the property belonging to the petitioner is not the secured asset and therefore it cannot be proceeded against. However the CJM rejected the contention of the petitioner and proceeded with the matter. According to the petitioner, that decision is wrong. He maintains that, his property is not mortgaged to any bank and that property has been illegally proceeded against W.P.(C)No.21507 of 2011 -2- by the bank. This is disputed by the bank. According to them, they have proceeded only against their secured asset which has been properly identified. In view of this dispute, I cannot decide this question in a writ petition where ordinarily this court will not take evidence. Therefore, the petitioner's remedy lies in filing an application under Section 17 before the Debts Recovery Tribunal for appropriate reliefs. Without prejudice to that right, this writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/