IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 3355 of 2011(T) ------------------------------------- PETITIONERS: --------------------- 1. AJITH, AGED 25, S/O.THANKAPPAN, ANITHA NIVAS, MELARANOOR T.C. 20/233, KARAMANA, THIRUVANANTHAPURAM. 2. ANITHA, AGED 27, D/O.THANKAPPAN, T.C. 20/185(3), VISAKOM, MALARANNOOR, KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI. RESPONDENTS: ------------------------ 1. THE AUTHORIZED OFFICER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK, HEAD OFFICE, EAST FORT, THIRUVANANTHAPURAM, PIN – 695 001. 2. THE SECRETARY, DISTRICT CO-OPERATIVE BANK, MALAYINKIZHU, THIRUVANANTHAPURAM – 695 573. 3. AMBUJAKSHI AMMA, AGED 65, KALLANVILAKATHU VEEDU, OPPOSITE POTTAYIL TEMPLE, POTTAYIL, PERUKAVU P.O., MALAYINKEEZHU, THIRUVANANTHAPURAM – 695 573. R1 & R2 BY SRI. K.G. RADHAKRISHNAN, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 3355 of 2011 ------------------------------- Dated this the 1st day of March, 2011. J U D G M E N T Proceedings initiated under the SARFAESI Act is under challenge in this writ petition. Claim of the petitioners is that, they are the absolute owners in possession of 5 cents of property comprised in survey No.1582/1-1 of Thycadu village in Thiruvananthapuram, upon which they derived title by virtue of Ext.P1 sale deed executed by their deceased father, in the year 1997. The father of the petitioners died in the year 2004. According to the petitioners, they were minors at the time when Ext.P1 sale deed was executed. It is contended that, at present the petitioners are residing in the residential building situated in the above said property. But the property in question is now being proceeded against, by virtue of Ext.P6 notice and Ext.P7 mahazar, on the allegation that the property was mortgaged for securing a loan, availed by the third respondent, from respondents 1 and 2. 2 W.P.(C).No. 3355 of 2011 2. It is stated that the deceased father of the petitioners had created a mortgage in favour of respondents 1 and 2 for securing a loan availed by the third respondent. Contention of the petitioners is that, at the time when the deceased father has created the mortgage, the property stood in the name of the petitioners, who were minors at that time and that the deceased father was not having any right to create such a mortgage. 3. Learned counsel appearing for respondents 1 and 2, on the basis of the instructions, submitted that the deceased father of the petitioners had created mortgage on the property with respect to two loans availed ; one by the third respondent and the another by one Sri.Asokan, by depositing the title deed through which he had purchased the property during the year 1987. Since a valid mortgage was created by the deceased father, the contention now raised by the petitioners is untenable, is the submission. It is further submitted that the defaulters with respect to both the loans are relatives of the petitioners. 3 W.P.(C).No. 3355 of 2011 4. It is noticed that, Ext.P6 was issued under provisions of section 13(4) of the SARFAESI Act. The petitioners got an effective statutory remedy to approach the Debt Recovery Tribunal, as contemplated under section 17(1). The question now raised relates to validity of the title of the father of the petitioners, who had created mortgage with respect to the property in question. For a proper decision on the issue, it is necessary to evaluate factual aspects on the basis of various documents and evidence. Hence, I am of the considered opinion that the relief sought for by the petitioners could not be granted in a writ petition filed under article 226 of the Constitution of India. Further going by the dictum laid by the honourable Supreme Court in the decision reported in United Bank of India V. Sathyawati Tondon & Ors. (2010(8) SCC 110). The practice of interdicting with the proceeding, under the SARFAESI Act, in exercise of Article 226, has been deprecated. Therefore, I am of the opinion that the writ petition deserves no merit. However, remedy if any 4 W.P.(C).No. 3355 of 2011 available to the petitioners to invoke provisions under section 17(1) of the SARFAESI Act is left open and the petitioners will be at liberty to agitate all the contentions raised herein, in such proceedings. 5. Learned counsel for the petitioners makes an appeal to this Court to direct to keep in abeyance dispossession of the petitioners from the residential building for a breathing time, in order to facilitate the petitioner to approach the DRT. Considering the facts and circumstances, if the petitioners are actually residing in the house situated in the property, the dispossession from the residential house is directed to be kept in abeyance for a period of 10 days, in order to facilitate the petitioners to invoke the statutory remedy. The writ petition is dismissed subject to the above directions. C.K.ABDUL REHIM, Judge ami/