IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 9441 of 2011(P) ------------------------ PETITIONER --------------------- K.P.MOHAMMED HARRIS, 'NAGMAS ' (HARSHIMAS'), EDAKKAD, KOZHIKODE 673 005. BY ADVS. SRI.B.RAGHUNATHAN SRI.G.GOPALAKRISHNA PILLAI, SRI.R.SRINATH RESPONDENT(S): ----------------------- 1. STATE BANK OF TRAVANCORE, REPRESENTED BY CHIEF MANAGER, STATE BANK OF TRAVANCORE, PALAYAM BRANCH, KOZHIKODE 673 002. 2. ASSISTANT GENERAL MANAGER, REGION II - ZONAL OFFICE, STATE BANK OF TRAVANCORE, MAVOOR ROAD, KZHIKOE 673 004. 3. GENERAL MANAGER, STATE BANK OF TRAVANCORE, HEAD OFFICE, THIRUVANANTHAPURAM 695 001. BY SRI.T.SETHUMADHAVAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.9.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9441 of 2011(P) ----------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1 COPY OF THE LETTER DATED 22.7.2008 OF THE 1ST RESPONDENT. EXT.P2. COPY OF LETTER DATED 18.9.2008 EXT.P3. COPY OF THE LETTER DATED 27.2.2010 EXT.P4. COPY OF THE ORDR DATED 20.7.2010 IN CMP NO.1317 OF 2010 OF THE CHIEF JUDICIAL MAGISTRATE, THALSSERY. EXT.P5. COPY OF THE STATEMENT OF ACCOUNT DATED 22.12.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P6. COPY OF RECEIPT OF THE 1ST RESPONDENT DATED 23.3.2011 FOR REMITTANCE OF RS.9,00,000/- EXT.P7. COPY OF THE CERTIFICATE DATED 8.6.2011 ISSUED BY THE BANK RESPONDENTS EXHIBITS --------------------------------------- ANNEXURE R1 (A) . COPY OF THE JUDGMENT DATED 4.8.2010 IN WPC No.22130/2010 OF THIS HON'BLE COURT. ANNEXURE R1(A). COPY OF THE JUDGMENT IN WPC NO.26737/2010 DATED 15.9.2010 OF THIS HON'BLE COURT. ANNEXURE R1(B). COPY OF THE ORDER DATED 24.3.2011 IN WPC N.9441/2011 OF THIS HON'BLE COURT. ANNEXUR R1(C). COPY OF THE STATEMENT OF ACCOUNT OF THE LOAN ACCOUNT NO.57018458017, SBT, KOZHIKODE-PALAYAM. ANNEXURE R1 (B)) . COPY OF THE JUDGMENT DATED 15.9.2010 I N WPC NO.26737/2010 / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 9441 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th day of September, 2011. J U D G M E N T The petitioner availed of certain loans from the respondents. There was default in repayment of the same. The respondents initiated proceedings under the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 . The petitioner has been challenging the proceedings in several writ petitions. In W.P(C) No. 22130/2010, this Court, by Annexure R1(a) judgment produced by the respondents, refused to exercise the discretionary jurisdiction under Article 226 of the Constitution of India in respect of the same subject matter. The petitioner now submits that subsequent to Annexure R1(a) order, there was change of circumstances insofar as the petitioner has been given the benefit of One Time Settlement, although the petitioner could not pay the entire amount due as per the One Time Settlement. In the circumstances, the petitioner seeks the following reliefs: “i. issue a writ of mandamus or any other appropriate writ, order or direction to the respondent bank to realise Rs. 14,73,000/- (Rs.34,73,000 - Rs. 20,00,000) with due interest from 22.12.2010 till date of remittance only from the petitioner in full settlement of the account with him. ii. issue a writ of mandamus or any other appropriate writ, order or direction to the respondent bank to allow the petitioner to sell the portion of the property (34 cents etc.) as proposed and settle the account.” 2. I am of opinion that the correctness of the amounts due from the petitioner is a question of fact, which the petitioner has W.P(C) No. 9441 of 2011 -: 2 :- to prove by adducing evidence regarding the amounts due, before the appropriate forum where the petitioner can adduce evidence in respect of the same. This Court cannot decide that question of fact without taking evidence, which I am not inclined to do in this writ petition. Insofar as the property has been mortgaged to the bank, I do not think that this Court can direct the respondent-bank as to how the sale should be done. If at all the petitioner has any grievance regarding the same, the remedy of the petitioner is to file an application under Section 17 of the Act before the Debt Recovery Tribunal . In the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. Accordingly, the writ petition is dismissed. S. Siri Jagan, Judge. Tds/