IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 10791 of 2009(T) -------------------------- PETITIONER(S): --------------- K.S.SHIBU, KONCHERY HOUSE, MAYITHARA P.O., CHERTHALA. BY ADV. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND SMT.LATHA KRISHNAN RESPONDENT(S): --------------- 1. STATE BANK OF TRAVANCORE, ALAPPUZHA- REPRESENTED BY ITS BRANCH MANAGER. *ADDL RESPONDENTS 2 TO 8: 2. K.S. SUSHAMA, MULAMOOTTIL HOUSE, S.L.PURAM P.O., CHERTHALA. 3. K.S. SHEELA, CHARANGATTU BUNGLOW, KANICHUKULANGARA P.O., CHERTHALA. 4. K.S. SHYLA, POONATH HOUSE, ARTHUNGAL P.O., CHERTHALA 5. K.S. SHINY, KONCHERY HOUSE, MAYITHARA P.O., CHERTHALA. 6. DR.K.S.SUBHASH, 'SREEVALSAM HOUSE', MAYITHARA P.O., CHERTHALA. 7. K.S. SANJEEV, KONCHERY HOUSE, MAYITHARA P.O., CHERTHALA. (...2/-) WP(C).10791/09-T (2) 8. SAVITHRI M., KONCHERY HOUSE, MAYITHARA P.O., CHERTHALA. (* IMPLEADED AS PER ORDER DT. 22.9.2009 IN I.A. 11583/09) ADV. SRI.SATHISH NINAN , S.C, SBT SRI.SANTHOSH MATHEW, S.C., SBT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).10791/09-T APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF LETTER DT.12.3.09 SENT TO THE RESPONDENT EXT.P2:- TRUE COPY OF REPLY DT. 20.3.09 SENT BY THE RESPONDENT. EXT.P3:- TRUE COPY OF POSSESSION NOTICE ISSUED BY THE RESPONDENT. EXT.P4:- TRUE COPY OF STATEMENT EXT.P5:- TRUE COPY OF STATEMENT. RESPONDENT'S EXHIBITS:- EXT.R1:- TRUE COPY OF ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY OKB //TRUE COPY// P.A. TO JUDGE W.P.C.10791/09 ORDER ON I.A.11294 OF 2009 IN W.P(C). 10791 OF 2009 DISMISSED. SD/- C.K. ABDUL REHIM, JUDGE. 19.1.2010 okb /True copy/ P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.10791 OF 2009 ------------------------------ Dated this the 19th day of January, 2010 J U D G M E N T ---------------------- 1. The writ petition is filed seeking direction for exemption of 66 cents of 'Tharavad property' of the petitioner comprised in Sy.No:300/1B1 & 300/1B8 of Cherthala village in Cherthala Taluk, from being sold under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Petitioner is a partner along with his family members in two firms namely, M/s.Konchery Coir Factories and M/s. Konchery International and Imperial Coir Yarn Trading Company. The issue involved in this writ petition pertains to action initiated by the respondent Bank under the SARFAESI Act for sale of secured assets with respect to loan availed by the latter firm mentioned above. 21 items of immovable properties belonging to the firm as well as its partners and guarantors, were mortgaged in order to secure the loan. Ext.P3 is the notice issued under Section 13 (4) of the SARFAESI Act giving intimation regarding taking over possession of 7 distinct items of properties mentioned therein. 2. Item No.4 in Ext.P3 is a property having an extent of W.P.(C).10791/09 2 47.75 Ares. The 'Tharavad property', with respect to which exemption claimed is the residential compound within the above said item, having an extent of 66 cents corresponding to 26.76 Ares in which the residential building is situated. Contention of the petitioner is that he is residing in the 'Tharavad property' along with his mother, who is residing therein since the last 65 years and who has got deep sentiments with respect to the house. It is contended that the total liability due to the respondent Bank is less than Rs.10 crores and that value of the entire secured assets will come to more than Rs.25 crores. It is further stated that the petitioner will undertake that they will not alienate the above said 66 cents and the building and if ultimately the amounts due to the Bank could not be realised from other properties, he is ready and willing to surrender the said property also. It is further stated that a request was submitted to the respondent seeking exemption from proceeding against the 'Tharavad property', as evidenced from Ext.P1, which was declined by the respondent through Ext.P2. Hence the writ petition is filed. 3. On the basis of direction issued by this court the petitioner had impleaded all co-obligants to the loan transaction as additional respondents 2 to 8. When the writ petition came up W.P.(C).10791/09 3 for consideration during April 2009, learned standing counsel appearing for the respondent Bank submitted that as of now the Bank is proceeding only against the properties as are necessary for realising the outstanding amounts. The said submission was recorded. Subsequently the petitioner had filed I.A.No:11294/2009 seeking stay of all further proceedings in the matter of taking over actual possession of the 'Tharavadu property'. On 14.9.2009 this court granted an interim direction to maintain status quo with respect to the actual possession of the 'Tharavad property'. 4. In the additional counter affidavit filed by the respondent Bank on 3.10.2009, it is contended that properties comprised as item No:1 to 5 described in paragraph 2 of the writ petition lies as a single compact plot, enclosed with compound wall, having a total extent of 5.67 acres. It is further stated that the so called Tharavad property is situated in the centre of the said compact plot and the way leading to the 'Tharavad' building is common for entry from the National Highway with respect to other portions of the properties situated within the same compound. Hence it is not practically possible to carve out 66 cents of land from the total extent of 5.67 acres. It is further stated that if there is such an attempt definitely there will arise W.P.(C).10791/09 4 dispute regarding usage of pathway, etc:. It is stated that total dues to the Bank as on 27.3.2009 is Rs.10,48,29,660/- along with future interest and the approximate valuation of the property having extent of 5.67 acres, including the 'Tharavad' house is Rs.10.32 crores. According to the respondent the most feasible option available to the Bank is to sell the said property in order to wipe off the liability. It is stated that item No:6 to 21 which are the other properties - secured assets, has got its own disadvantages either one way or the other, which are enumerated in the counter affidavit. Hence the respondent emphatically denies possibility of exempting the 'Tharavad property' from being proceeded against. 5. In the reply affidavit filed by the petitioner Ext.P4 & Ext.P5 extracts of valuation statement alleged to have been prepared by the revenue authorities is produced, in order to support his contention that the properties mortgaged will fetch a total value of Rs.19 crores, excluding the 'Tharavad property', which according to the petitioner is having a value of approximately Rs.1,40,00,000/-. Hence it is contended that no prejudice will be caused to the Bank if properties other than the 'Tharavad property' is proceeded against at the first instant. 6. Heard, Sri. K. Anand, learned counsel for the W.P.(C).10791/09 5 petitioner and Sri. Sathish Ninan, standing counsel for the respondent Bank. At the outset it is noticed that the challenge is against proceedings being pursued under the SARFAESI Act. Ext.P3 is a notice issued under Section 13(4) of the said Act. The statute provides an effective alternate remedy by way of appeal under Section 17(1) of the Act to challenge any action initiated under Section 13(4), before the Debt Recovery Tribunal. In view of the alternate remedy available under the statute it is not at all proper and desirable for this court to entertain any dispute pertaining to the proceedings under the SARFAESI Act, in a writ petition filed under Article 226 of the Constitution of India. 7. It is a fact which is conceded that the loan transaction in question is secured by 21 items of immovable properties. Consequent to default committed, the respondent has invoked provisions of the SARFAESI Act. It is absolutely within their wisdom and power to take proceeding against any of the properties included among the secured assets. The petitioner being a partner of the firm which availed the loan, and being the owner of the property which is mortgaged, cannot claim exemption with respect to any of his properties from being proceeded against, as a matter of right. Merely because the Bank found it not feasible to exempt any portion of the property W.P.(C).10791/09 6 belonging to him from being proceeded against, the petitioner could not successfully raise any challenge against the decision. In fact the petitioner has not pointed out any illegality, irregularity or infirmity against the decision taken in this regard. The petitioner is claiming more or less an equitable relief which this court could not grant in a manner prejudicial to the rights of the respondent Bank. 8. Therefore I am of the considered opinion that the discretionary jurisdiction vested in this court could not be invoked under the above circumstances to grant any equitable relief to the petitioner. In the result the writ petition is devoid of any merit and the same is accordingly dismissed. C.K.ABDUL REHIM, JUDGE. okb