IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 15668 of 2008(M) ------------------------------------- PETITIONER: ------------------ ROSAMMA DANIEL, AGED 45 YEARS, W/O.DANIEL V.GEORGE, VALUTHUNDIL HOUSE, KONNI P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS: ---------------------- 1. CHIEF MANAGER, (AUTHORISED OFFICER), STATE BANK OF TRAVANCORE, BRANCH KONNI. 2. BRANCH MANAGER, STATE BANK OF TRAVANCORE, BRANCH KONNI. 3. ASSISTANT GENERAL MANAGER, ZONAL OFFICE, COLLECTORATE, KOTTAYAM. BY ADV. SRI.R.S.KALKURA FOR R1TOR3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15668 of 2008(M) -2- APPENDIX PETITIONER'S EXHIBITS EXT.P1 - TRUE COPY OF SECTION 13(2) NOTICE EXT.P2 - TRUE COPY OF THE JUDGMENT DATED 11.3.2008 OF THIS HON'BLE COURT. EXT.P3 - TRUE COPY OF SALE NOTICE DATED 29.4.2008 DAILY MALAYALA MANORAMA PATHANAMTHITTA EDITION. / TRUE COPY / PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P (C) .No.15668 of 2008 ================== Dated this the 3rd day of July, 2008. J U D G M E N T The petitioner availed of a housing loan from the 2nd respondent - bank, repayment of which was defaulted by her. The respondents initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which culminated in taking possession of the secured interest. The petitioner is now challenging the proceedings for the sale of the secured interest. 2. The petitioner raises several contentions against the action of the respondents. First is that, the hypothecated movables themselves are sufficient to satisfy the debt. Therefore, it is not necessary to sell the immovable properties forming the security interest. The second is that the property now taken possession of by the respondents comprises of the residential building, in which W.P (C) .No.15668 of 2008 - 2 - the petitioner and her children are residing and along with the security interest, the respondents have taken possession of the movables inside the house as also a car belonging to the petitioner's friend which is parked in the car porch of the building. The Counsel for the petitioner would contend that the respondents had no right to take possession of such household articles and car as also the valuable document relating to the chitty business of the husband of the petitioner, which were kept inside the house. The petitioner would further submit that although an appeal is provided under Section 17 of the Act, for the above reliefs, such appeal is not maintainable. 3. The learned Standing Counsel appearing for the respondent stoutly opposes the prayers of the petitioner. According to him the possession was taken pursuant to the orders of the Chief Judicial Magistrate who appointed a Commissioner for taking possession of the same. The Advocate Commissioner took possession of the building W.P (C) .No.15668 of 2008 - 3 - under a Mahazar. If personal belongings of the petitioner are inside the house, he is perfectly free to remove the same under proper acknowledgment. According to the Counsel for the respondents, there is no objection to the Bank in the petitioner removing the car also which according to him, if it is there, is a burden for the bank. He also points out that the petitioner has not proved her bona fides by paying the Rs. 50 lakhs as directed by order dated 2.6.2008. In fact she has not paid any amount, he would submit. He further submits that there is no bona fides whatsoever in the writ petition and the only intention of the petitioner is to protract the proceedings as far as possible. The learned Standing Counsel also would submit that the settled law as held by the Supreme Court is that proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has to be challenged in an appeal as provided under Section 17 of the Act which right of appeal is available to the petitioner W.P (C) .No.15668 of 2008 - 4 - against the present proceedings also. 4. I have considered the rival contentions in detail. 5. As far as the contention of the petitioner that the respondents should first proceeded against hypothecated goods is concerned, I am of opinion that if a debt is secured by mortgage it is up to the bank to decide as to how the same should be realised provided the same is in accordance with the loan agreement. The bank is free to proceed against the security interest. The petitioner cannot dictate as to how they should realise the amount by sale of the security interest. The petitioner has not been able to point out any irregularity in the proceedings. As such, I do not find any merit in this contention. As far as the second contention regarding taking over possession of articles which are inside the house since the possession was taken over pursuant to orders of the Chief Judicial Magistrate by appointing an Advocate Commissioner, it was up to the petitioner to be present at W.P (C) .No.15668 of 2008 - 5 - the time of taking over possession and point out this aspect and take delivery of the household articles or to move the appropriate court for directions to deliver those articles to the petitioner. Even now the learned Standing Counsel submits that the petitioner is free to take delivery of whatever personal belongings due to the petitioner under proper acknowledgment. That being so, if the petitioner approaches the bank for taking delivery of such personal belongings, the bank shall release those of the same which can be so released under law, to the petitioner under proper acknowledgment, if those articles or documents are not a part of security interest. Since the Standing Counsel submits that the petitioner is free to take possession of the car also, if it is there, I need only record the said submission. I am of opinion that the petitioner ought to have challenged the proceedings under the Act in an appeal before the Tribunal. The petitioner's bona fides is also W.P (C) .No.15668 of 2008 - 6 - suspicious in so far as in spite of specific order from this court, the petitioner has not paid any amount whatsoever to prove her bona fides. For all the above reasons, I do not find any merit in this writ petition and accordingly, the same is dismissed. S.SIRI JAGAN, JUDGE rhs