IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 28402 of 2010(A) ---------------------------------------- IA.1870/2010 IN OA.269/2010 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): ------------------------ 1. SENMON PHILIP, AGED 42 YEARS, S/O.KOCHUKUNJU, RESIDING AT NELLUVELIL HOUSE, SURVEY NO.196/2.7, NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 2. SHEEJA SENMON, AGED 35 YEARS, W/O.SENMON PHILIP, RESIDING AT NELLUVELIL HOUSE, SURVEY NO.196/2.7, NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.SETHUNATH, SRI.PRAKASH KESAVAN. RESPONDENT(S): -------------------------- 1. THE REGISTRAR, DEBT RECOVERY TRIBUNAL, (ERNAKULAM), FLOOR NO.5, KSHB BUILDING, PANAMPALLY NAGAR, COCHIN-682 036. 2. THE SOUTH INDIAN BANK, REPRESENTED BY THE AUTHORISED OFFICER, CHIEF MANAGER, REGIONAL OFFICE, KAKKANATTU APARTMENTS ST.PETERS JUNCTION, PATHANAMTHITTA, PIN-689 645. 3. THE STATE BANK OF TRAVANCORE, RANNI, THOTTAMON BRANCH, REPRESENTED BY THE MANAGER, RANNI, THOTTAMON BRANCH, PIN-689 672. WP(C).No. 28402 of 2010(A) 4. THOMAS SIMON, AGED 67 YEARS, S/O.THOMAS, VALLYATHARAYIL HOUSE, KADAMMANITTA MURI, NARANGANAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN-689 649. 5. LISSY SHAJI MATHEW, W/O.LATE SHAJI MATHEW, PRAKKATTUVAYIL HOUSE, ANTHIYALMAKVU P.O., KADAMMANITTA, PATHANAMTHITTA DISTRICT, PIN-689 649. 6. MARIYAMMA MATHEW, MOTHER OF LATE SHAJI MATHEW, PRAKKATTUVAYIL HOUSE, ANTHIYALMAKVU.P.O., KADAMMANITTA, PATHANAMTHITTA DISTRICT, PIN-689 649. 7. AMRUTHA, D/O.LATE SHAJI MATHEW, PRAKKATTUVAYIL HOUSE, ANTHIYALMAKVU P.O., KADAMMANITTA, PATHANAMTHITTA DISTRICT, PIN-689 649. 8. APARNA, D/O.LATE SHAJI MATHEW, PRAKKATTUVAYIL HOUSE, ANTHIYALMAKVU.P.O., KADAMMANITTA, PATHANAMTHITTA DISTRICT, PIN-689 649. R2 BY ADV. SRI.GEORGE VARGHESE, SC, SOUTH INDIAN BANK, SRI.P.R.MILTON. R3 BY ADV. SRI.SATHISH NINAN, SC., SRI.SANTHOSH MATHEW. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.28402 of 2010 ------------------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T ---------------------- Petitioners are aggrieved by steps initiated by the 2nd respondent Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). According to the petitioners, they have no connection with the loan transaction, which was availed by one Sri.Shaji Mathew, who died subsequently. The respondents 5 to 8 impleaded herein are the legal heirs of the deceased borrower. Contention of the petitioners is that respondents have affixed Ext.P11 notice on the property which the petitioners have purchased from the 4th respondent, comprised in Re-Sy.No:196/2/7. But the property mortgaged with respect to the loan transaction is comprised in Re-Sy.No:196/2/6 and it is not the property in question which belongs to the petitioners, is the contention. It is also submitted that the property belonging to the petitioners was already mortgaged with the 3rd respondent Bank with respect to a loan availed by the petitioners. 2. Learned counsel appearing for the 2nd respondent Bank submitted that the petitioners are raising a dispute W.P.(C).28402/10-A -2- regarding identity of the property which is the secured asset with respect to the loan transaction. There was a mistake crept in the survey number of the property which is mortgaged and clarification in this regard has already been obtained from the Tahsildar concerned. Therefore steps are now being proceeded only against the property mortgaged. 3. Considering the rival contentions, I am of the opinion that the dispute pertaining to identity of the property, which is the secured asset, is a matter which could not be adjudicated in a proceedings under Article 226. The correct identity of the property need be ascertained through documents and oral evidence. If the petitioners have got a grievance that their property has been wrongly proceeded against, it is for them to seek appropriate remedy before the statutory authorities. Learned counsel for the petitioners submitted that a civil suit has already been filed seeking declaration with respect to the dispute and the same is now pending disposal. Considering the above situation I am of the opinion that the petitioners can seek appropriate remedy either in the civil suit or before the statutory authority under the SARFAESI Act. 4. In the result the writ petition is dismissed, without W.P.(C).28402/10-A -3- prejudice to rights of the petitioners to pursue remedies before the civil court or before the statutory authorities under the SARFAESI Act, as permissible under law. C.K.ABDUL REHIM, JUDGE. okb