IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WA.No. 2325 of 2009 --------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.27083/2008 .................... APPELLANT / PETITIONER IN WRIT PETITION: -------------------------------------------------------------------------- D.SURYANARAYANA IYER, S/O.LATE D.DORAISWAMY ITER, AGED 48 YEARS, 18/834, LAKSHMI NILAYAM COLONY RAMAN MENON ROAD, CHALAPURAM P.O., CALICUT. BY ADV. SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS/ RESPONDENTS IN WRIT PETITION: ----------------------------------------------------------------------------------- THE PUNJAB NATIONAL BANK LTD., LINK (KALLAI) ROAD, CALICUT REP.BY ITS MANAGER. BY ADV. SRI.K.P.SUDHEER, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.BANNURMATH, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2325 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October 2009 JUDGMENT A.K.BASHEER, J. Appellant is the petitioner in the writ petition. He filed the writ petition praying for issuance of a writ in the nature of certiorari to quash Ext.P4 notice issued by the respondent under the SARFAESI Act informing the appellant that possession of the mortgaged property would be taken by the bank at his risk and cost if the entire dues were not cleared immediately. 2. Ext.P4 notice was assailed based on the plea that the respondent was not entitled to take recourse to the provisions contained under the SARFAESI Act simultaneous with the proceedings pending before the Debt Recovery Tribunal. Admittedly, the Bank has filed O.A.55/06 before the Debt Recovery Tribunal, Ernakulam for recovery of the debt from the petitioner. 3. The learned Single Judge however relying on the decision in M/S Transcore V. Union of India and another [AIR 2007 SC 712] held that the above action of the Bank cannot be faulted. The writ petition was disposed of making it clear that the appellant/petitioner will be entitled to challenge the action of the bank as and when it initiates any coercive steps to take possession of the mortgaged property. 4. While impugning the above judgment, it is contended by the learned counsel for the appellant that the learned Single Judge has not adverted to the crucial fact that the primary contention of the appellant before the Debt Recovery Tribunal is that several of the crucial documents produced by the bank W.A.No.2325 OF 2009 :: 2 :: were forged ones in its attempt to overcome the bar of limitation. In short, according to the appellant, the bank will not be entitled to recover any amount which is allegedly due from him. We do not propose to make any observation on the said contention in view of the order that we propose to pass. 5. The primary apprehension of the appellant is that his rights would be adversely affected, if the bank is allowed to proceed against the mortgaged property while the larger issues as regards the question of limitation and the alleged forgery made by the bank are pending consideration before the Debt Recovery Tribunal. There is considerable merit in the above contention. 6. However, we do not find any reason why the appellant cannot move the Debt Recovery Tribunal itself and seek appropriate reliefs. If such a motion is made, the Debt Recovery Tribunal shall pass appropriate orders in accordance with law. Appeal is disposed of in the above terms. (S.R.BANNURMATH) CHIEF JUSTICE (A.K.BASHEER) JUDGE jes