IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 WP(C).No. 989 of 2008(P) ----------------------------------- PETITIONER: ------------------- VELLARAMPARA SAYED ALAVI @ SAID HAJI, S/O. HYDRUKUTTY MOLLA, PUNNAPPALA AMSOM DESOM, PUNNAPPAL P.O., NILAMBUR TALUK, MALAPPURAM DIST. BY ADV. SRI.BINDU SREEKUMAR. RESPONDENTS: ----------------------- 1. NILAMBUR CO-OPERATIVE URBAN BANK, NILAMBUR, MALAPPURAM DISTRICT. 2. THE GENERAL MANAGER, NILAMBUR CO-OPERATIVE URBAN BANK, NILAMBUR, MALAPPURAM DISTRICT. 3. LOKAYIL MURALEEDHARAN, S/O.BALAKRISHNAN NAIR, KUTTIPURATH HOUSE, NILAMBUR P.O., MALAPPURAM DISTRICT. 4. HAMSA, S/O. UNNIKOYA, PERUMPALLY, VANDOOR, MALAPPURAM DISTRICT. 5. ABDUL AZEEZ, S/O. AHAMMED KUTTY, KOLAPPATTA, ARIYAD, PUNNAPPALA P.O., NILAMBUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.989/2008-P: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ASSIGNMENT DEED NO. 3665/2007 DTD. 20/07/2007. EXT.P.2: COPY OF THE ENCUMBRANCE CERTIFICATE FOR 01/04/1994 TO 18/08/2007 ISSUED BY THE SUB REGISTRAR'S OFFICE. EXT.P.3: COPY OF THE NOTICE OF AUCTION DTD. 20/09/2007 ISSUED BY THE RESPONDENT BANK DTD. 03/09/2007. EXT.P.4: COPY OF THE ORDER DTD. 22/10/2007 IN I.A. NO. 1381/2007 IN O.S. NO. 215/2007. EXT.P.5: COPY OF THE DISMISSAL ORDER PASSED BY THE DISTRICT JUDGE, MANJERI IN C.M.A. NO. 24/2002 DT. 18/12/2007. EXT.P.6: COPY OF THE POWER OF ATTORNEY DEED EXECUTED IN THE NAME OF HAMSA DTD. 12/12/2000. EXT.P.7: COPY OF THE PRIOR DEED DTD. 13/04/1998 SIGNED BY SHANMUGHAN. EXT.P.8: COPY OF THE SALE DEED DTD. 29/12/2000 SIGNED BY HAMSA. EXT.P.9: COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, AMARAMBALAM DTD. 19/07/2007. EXT.P9.A: COPY OF THE PROPERTY POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, AMARAMBALAM DTD. 19/07/2007. EXT.P.10: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. DTD. 02/01/2007. RESPONDENT'S EXHIBIT: EXT.R6.A: COPY OF THE JUDGMENT IN W.P.(C). NO. 37625/2007 OF THIS HON'BLE COURT. //TRUE COPY// prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 989 OF 2008 = = = = = = = = = = = = = = = Dated this the 13th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the learned District Judge, Manjeri in CMA 24/07. The brief facts necessary for the disposal of the writ petition are stated as follows. According to the writ petitioner he is a bonafide purchaser of 40 cents of land comprised in Sy.No.498/2A for valuable consideration as per a document, Ext.P1 in the year 2007. This property along with another 50 cents of property belong to one Muraleedharan who is the 3rd respondent in the case. Muraleedharan had effected certain sale transaction with the remainder of 90 cents executed a power of attorney in favour of one Hamsa enabling him to deal with the property and transfer the property either in full or in part in accordance with law. The property was assigned by Muraleedharan in favour of one Abdul Azeez on 29.12.00. It is from the said Abdul Azeez the plaintiff has purchased the W.P.C 989 OF 2008 -:2:- property. It has also to be stated that 3rd respondent Muraleedharan has borrowed a sum of Rs.2,50,000/- from the Nilambur Co-operative Urban Bank and he had created an equitable mortgage of the property and did not repay the amount. The Bank initiated the proceedings. A reference to paragraph 8 of the learned District Judge's order would reveal regarding the land transaction between the Muraleedharan and Bank. Thereafter it is contended by the Bank that by virtue of Ext.B24 the possession is taken by the authorized officer and thereafter they have taken steps to publish in Mathrubhoomi and Malayala Manorama daily for sale of the property and it was only at that stage the present petitioner came to know about the whole transaction. It is contended that the Bank is not proceeding against the real culprit Muraleedharan but is proceeding against the property of the petitioner and ultimately he has to approach the civil Court for redressal of the grievance with a prayer to restrain the Bank from proceeding with the sale of the property under the Securitisation Act. The Courts below elaborately W.P.C 989 OF 2008 -:3:- considered the points and ultimately came to a conclusion that the civil Court did not have the jurisdiction to entertain such a case and therefore ultimately declined the relief prayed for in the petitions. It is against that the present writ petition is filed. 2. Now, the relevant provisions which has been brought to the notice of this Court are sections 13, 14, 17, 34 and 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(hereinafter referred to as the 'The Act'). Under Section 13(4) of the Act it enables the Bank to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. Under Section 14 where the possession of any secured asset is required to be taken by the secured creditor for that purpose he has to make a request to the Chief metropolitan magistrate or the District Magistrate within whose jurisdiction any such secured asset or document relating thereto may be situated or even requesting him to W.P.C 989 OF 2008 -:4:- take possession etc.” Section 17 deals with the right to appeal. Section 17(1) reads as follows, “Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken.” 3. Then a reference to S.34 would reveal that no civil Court shall have the jurisdiction to entertain the suit or proceed in respect of any matter which a Debt Recovery Tribunal or appellate Tribunal is empowered or under this act to determine etc......... So a reading and analysis of these sections above would reveal that the institution is entitled to invoke Section 13 of the Act for sale of the property and also get possession of the property by invoking S.14 and any person aggrieved by such an order is competent to prefer an appeal before the Debt Recovery Tribunal and when such an efficacious remedy is provided under the Act, S.34 further W.P.C 989 OF 2008 -:5:- bars the jurisdiction of the civil Court to entertain any matter which is to be decided by the provisions under the Securitisation Act. So one cannot hold that there is no remedy for the party and at the same time there is an express bar of jurisdiction under Section 34 of the Act. Therefore the approach of the Courts below holding that the civil Court has no jurisdiction to entertain the suit shall not be interfered with. Therefore the writ petition lacks merit and it is dismissed. But, I make it clear that this will not in any way affect the statutory right available to the writ petitioner to be invoked and this does not preclude the writ petitioner from approaching the appropriate authorities as envisaged by law. M.N. KRISHNAN, JUDGE. ul/-