IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 9643 of 2009(A) ------------------------------------ PETITIONER(S): ---------------------- 1. DEVAKI, W/O.LATE DAMODARAN, AGED 67 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. 2. KALAVATHI, D/O.LATE DAMODARAN, AGED 48 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. 3. DEVADAS, S/O.LATE DAMODARAN, AGED 46 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. 4. INDIRA DEVI, D/O.LATE DAMODARAN, AGED 44 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. 5. NAGARAJ, S/O.LATE DAMODARAN, AGED 42 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. 6. MANIKANDAN, S/O.LATE DAMODARAN, AGED 40 YEARS, PUTHEN VEEDU, KAVALAPPARA P.O., SHORNOOR, PALAKKAD DISTRICT. BY ADV. MR.C.K.RAMAKRISHNAN RESPONDENT(S): ------------------------ 1. MANAGER, STATE BANK OF INDIA, ONGALLUR. 2. AUTHORISED OFFICER, STATE BANK OF INDIA, THIRUNAKKARA, KOTTAYAM. R1 & R2 BY ADV. MR.K.K.CHANDRAN PILLAI, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.9643 of 2009-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of March, 2009. JUDGMENT 1.The petitioners claim to be the legal representatives of late Damodaran, who had availed a loan from the first respondent. It is stated that the said loan was supported by a margin money scheme facility provided by the Kerala Khadi and Village Industries Commission, as evidenced by Ext.P1. The petitioners challenge the public notice given by the authorized officer for sale of the security property for the recovery of the accruals which, by now, is more than Rs.11,60,000/-. 2.The learned counsel for the bank states that the petitioners have suppressed the fact that two among them had earlier come to this Court by filing WP(C).32783/2006 which was disposed of by WP(C)9643/09 -: 2 :- judgment dated 19.12.2006 and that the plea then was that the first petitioner herein was also one among the legal representatives. The bank, thereafter, issued notice to her also and has proceeded with the action in terms of that judgment. Now the petitioners say that there are other legal representatives which fact was not part of the plea in the earlier writ petition. 3.The plea is that the amount fixed for recovery is excessive and the bank is liable to adjust the amounts covered by the margin money scheme facility provided by the Kerala Khadi and Village Industries Commission and still further, that there is no creation of a security interest in terms of law since the area in question is not a notified area for the purpose of deposit of title deeds in terms of the Transfer of Property Act. All these are issues which the petitioners can agitate in appropriate securitization application before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act and it would be improper WP(C)9643/09 -: 3 :- for this Court to enter on an adjudication on mixed questions of law and facts, particularly when the disputes are in the range of those which require settlement by adjudication on evidence. For the aforesaid reasons, without prejudice to the right of the petitioners to move the DRT in terms of Section 17 of the SARFAESI Act, this writ petition is dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/270309