IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 WP(C).No. 14389 of 2010(W) -------------------------- CMP.1795/2010 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER: --------------- JOHN.P.C., @ CHACKO JOHN.P.C. PULICKAL HOUSE, DOOR.NO.20/2541, PALLURUTHY.P.O. PERUMPADAPPU, KOCHI-682006. BY ADV. SRI.N.K.MOHANLAL RESPONDENT: --------------- BANK OF INDIA, COLLEGE GROUND BRANCH, ERNAKULAM REPRESENTED BY ITS AUTHORISED OFFICER. STANDING COUNSEL -SRI.DEVAN RAMACHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/05/2010, ALONG WITH WPC NO. 14408 OF 2010 & WPC NO. 15508 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NOs. 14389 OF 2010, 14408 OF 2010 & 15508 OF 2010 -------------------------------------------- Dated this the 24th day of May, 2010 JUDGMENT WP(C) 14389/2010 has been stated as filed before this Court on mistake in so far as the petitioner had instructed to challenge the cause of action in respect of the loan granted by the 'Cochin branch' of the respondent Bank. But since the copies of the documents entrusted with the learned counsel, pertained to the College Ground branch, pleadings were raised accordingly challenging the proceedings with regard to the loan granted by the College Ground Branch. This cause of action was separately challenged in another Writ Petition filed as WP(C) 14408/2010 through an another learned counsel on the very same day and similar interim order was passed by this Court on 06.05.2010 itself. On realizing the mistake, the actual cause of action in respect of the 'Cochin branch' involving a different loan (creating security interest over a different property) has been sought to be agitated in WP(C) 15508/2010 and hence the petitioner seeks for permission to withdraw WP(C) 14389/2010 and to proceed with the proper Writ Petition, i.e., WP(C) 15508/2010. Permission is granted and WP(C) 14389/2010 is dismissed as withdrawn. 2. With regard to the issue involved in WP(C) 15508/2010, it is in respect of a 'housing loan' of Rs.9.3 lakhs availed by the petitioner and 2 WP(C) No. 14389/2010 & Connected cases his wife from the respondent Bank on 24.11.2006 creating security interest over the property in question. Because of the failure on the part of the borrowers, the Bank proceeded with the steps under the SARFAESI Act, based on which the physical possession was actually taken over. The petitioner is aggrieved of the above action and seeks to restore possession of the property forthwith and also for a direction to permit the petitioner to remove the entire movables kept in the secured asset. 3. The learned counsel for the Bank submits on instructions that the petitioner has not approached this Court with clean hands, in so far as the earlier instance of having approached this Court by filing WP(C) 2672/2010 in respect of the very same cause of action, involving the very same loan granted by the 'Cochin branch' has been consciously suppressed (filed through another learned counsel). It is also brought to the notice of this Court that the Bank proceeded with further steps under the SARFAESI Act and the same was challenged by filing in WP(C) 2672/2010 wherein such steps were intercepted by this Court on condition that the petitioner deposited a portion of the liability as specified. It is further stated that the condition was not complied with by the petitioner and on bringing the same to the notice of this Court, the Petitioner sought to withdraw the said Writ Petition with liberty to move the DRT, availing the statutory remedy and accordingly, the said Writ Petition was dismissed as withdrawn 3 WP(C) No. 14389/2010 & Connected cases on 01.02.2010. This being the position, no further cause of action survives in respect of the very same loan transaction and as such, the grievance projected by the petitioner in WP(C) 15508/2010 is not more liable to be entertained; submits the learned counsel. 4. The learned counsel for the petitioner submits that the petitioner unfortunately omitted to bring the filing of the earlier Writ Petition (WP(C) 2672/2010), as to the non compliance of the interim order or the steps intended to be pursued by filing the statutory remedy by approaching the DRT to his knowledge. Admittedly, there is no explanation from the part of the petitioner as to why the earlier proceedings have been suppressed in the present Writ Petition and this being the position, this can only be treated an abuse of the process of this Court. Whether there is a conscious attempt on the part of the petitioner to have concealed the relevant aspects is a matter to be considered in detail. However, this Court reluctantly refrains from proceeding further but for expressing the strongest displeasure deprecating the course followed by the party concerned. Accordingly, Writ Petition 15508/2010 is dismissed with a cost of Rs.10,000/-. 5. With regard to the issue involved in WP(C) 14408/2010 which is actually in respect to the loan transaction with the 'College Ground branch' of the respondent Bank, even though there is an interim order 4 WP(C) No. 14389/2010 & Connected cases passed by this Court on 06.05.2010, taking note of the course and conduct pursued by the petitioner as described above, this Court does not find it as a fit case so as to call interference invoking the power under Article 226 of the Constitution of India. The remedy of the petitioner, if aggrieved of the steps taken by the Bank under the SARFAESI Act is by resorting to the steps as provided under the statute. Accordingly interference is declined and this Writ Petition is also dismissed leaving the rights and liberties of the petitioner to approach the statutory forum open. All the Writ Petitions are dismissed as above. P.R.RAMACHANDRA MENON JUDGE dnc