IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 4600 of 2009(V) -------------------------------------- PETITIONER(S): ---------------------- M.SURESHAN, MULLAKANDY HOUSE, AZHIKODE P.O., KANNUR DISTRICT. BY ADV. SRI.BOBY MATHEW SRI.E.T.MATHEW RESPONDENT(S): ------------------------- 1. INDIAN OVERSEAS BANK, NEELESWAR BRANCH, KASARGOD DIST. REP. BY ITS BRANCH MANAGER. 2. THE AUTHORIZED OFFICER, INDIA OVERSEAS BANK, REGIONAL OFFICE, CHEROOTY ROAD,KOZHIKODE 673 001. 3. P.P. NAUSHAD, SON OF ABDUL RAHMAN, PUNNAL PUTHYAPURAYAL NEEROKUMCHAL P.O.CHIRAKAL , KANNUR. 4. THE DISTICT COLLECTOR, KANNUR, COLLECTORATE, KANNUR. 5. THE TAHSILDR, TALUK OFFICE, KANNUR. 6. THE VILLAGE OFFICE, AZHIKODE SOUTH VILLAGE, KANNUR TALUK, KANNUR DIST. R1 & R2 BY STANDING COUNSEL SRI.P.B.SURESH KUMAR. SRI.K.T.SHYAMKUMAR FOR R3 SRI.HARISH R. MENON FOR R3 R4 TO R6 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No.4600 of 2009-V ---------------------------------------------- Dated, this the 7th day of April, 2009 J U D G M E N T Petitioner seeks issuance of a writ of mandamus setting aside the sale of property and to command the respondents not to take any steps so as to dispossess the mother of the petitioner from the property. Briefly put, the case of the petitioner is as follows: Petitioner in partnership with others has started a unit. It has availed a loan. There is default in repayment of the loan. Proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“ SARFAESI Act” for short) was taken. It is stated that petitioner was permitted to move the Tribunal vide Ext.P1 judgment. It is further stated that Ext.P4 is the notice issued under the SARFAESI Act. It is stated that petitioner along with his mother and brother had filed W.P.(C) No.25935/2008 challenging Ext.P4 notice and seeking permission to remit the balance amount under the One-Time- Settlement Scheme. It is finally disposed of by Ext.P5 WPC No. 4600/2009 -2- judgment. In Ext.P5 judgment this court permitted the petitioner to deposit certain sums and failure of which was ordered to result in liberty for the Bank to sell the property. A review petition was filed referring to Ext.P1 judgment and stating that petitioner may be permitted to withdraw the writ petition. Taking note of the fact that the petitioner had not paid the amount as permitted and the sale took place of the properties and sales were confirmed, the review petition was also dismissed. It is thereafter the petitioner approached this court seeking the reliefs as already referred. One of the contentions taken in the writ petition is that no notice of 30 days for sale was issued before conducting sale of the property as contemplated under Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002. 2. I heard Sri.Boby Mathew, learned counsel for the petitioner, learned standing counsel for the Bank as also the learned counsel for the auction purchaser. Learned counsel for the auction purchaser would point out that it is because the petitioner did not pay the amount which is ordered in Ext.P5 that the sale had to be conducted. I would WPC No. 4600/2009 -3- think that it is for the petitioner to take up all his contentions by approaching the Tribunal. A Division Bench of this court has taken the view that the Tribunal has power to condone delay. Accordingly, the writ petition is dismissed without prejudice to the right of the petitioner to move the Debt Recovery Tribunal. (K.M.JOSEPH) JUDGE. MS