IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 14971 of 2011(V) ---------------------------------- PETITIONER(S): ------------------- INDIRA, AGED 41 YEARS, W/O.SHIBU, KURULI HOUSE, THRIKKUR P.O., THRISSUR. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): -------------------- 1. STATE BANK OF INDIA, REP. BY MANAGER IRINJALAKUDA BRANCH, THRISSUR DIST. PIN - 680 121. 2. AUTHORIZED OFFICER UNDER THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, STATE BANK OF INDIA, IRINJALAKUDA BRANCH, THRISSUR DIST. PIN - 680 121 3. GIREESH, S/O.SUKUMARAN, VAKEKKATTIL HOUSE, THRIKKUR P.O., THRISSUR DIST. PIN - 680 314. 4. SHIBU, S/O.MANI, KURULI HOUSE, P.O.THRIKKUR, THRISSUR DIST. PIN - 680 314. R1-2 BY ADV. SRI.R.S.KALKURA, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 14971/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REGISTERED SALE DEED NO.2605/2006. P2: COPY OF THE OWNERSHIP CERTIFICATE OF THE RESIDENTIAL BUILDING NO.3/159 A OF THE THRIKKUR GRAMAPANCHAYAT. P3: COPY OF THE BUILDING TAX ISSUED TO THE ABOVE SAID BUILDING DATED 25/05/2011. P4: COPY OF THE SALE DEED NO.596/2007 DATED 24/01/2007. P5: COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER TO THE 3RD RESPONDENT. P6: COPY OF THE LETTER SENT BY THE COMMISSIONER TO THE 4TH RESPONDENT DATED 04/05/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.14971 of 2011 ------------------------------- Dated this the 8th day of June, 2011. J U D G M E N T Grievance of the petitioner is against steps taken by respondents 1 and 2 under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), for realising amounts due from the 3rd respondent, under a loan transaction which was availed by the said respondent. 2. Complaint of the petitioner is that, pursuant to the steps initiated under the SARFAESI Act against the 3rd respondent, property belonging to the petitioner covered under Exts.P2 and P3 documents have been taken over possession and the petitioner was dispossessed from the property and from the residential building situated therein. It is contented that the property covered under Exts.P2 and P3 were not mortgaged in order to secure the loan in question. The petitioner interalia seeks direction against respondents 1 2 W.P.(C).No.14971 of 2011 and 2 to restore possession of the residential house and the property to the petitioner, which is covered under Exts.P2 and P3 documents. 3. Heard ; learned standing counsel appearing for respondents 1 and 2. It is submitted that the mortgaged property is one covered under Ext.P4 document and the Bank had proceeded only against the said property. The contention of the petitioner that the property which was proceeded against pursuant to the proceedings, is not the property mortgaged for securing loan, is disputed. It is also mentioned that the 3rd respondent had approached this Court on an earlier occasion challenging the proceedings initiated under the SARFAESI Act and in W.P.(C)No.19218/2010 filed in this regard was disposed of permitting regularisation of the account by insisting payment of the amounts in default in two equal monthly instalments and also permitting continuation of payment of future monthly instalments in accordance with the original schedule of repayment. But the 3rd respondent had failed to comply with any of such conditions and hence 3 W.P.(C).No.14971 of 2011 further action for dispossession of the property was taken. 4. Considering the rival contentions it is evident that, the dispute now raised pertains to identity of property which was proceeded against, under the SARFAESI Act. For a proper adjudication as to whether the property taken over possession belongs to the petitioner and as to whether respondents 1 and 2 were entitled for proceeding against such property, are all questions which need be decided on the basis of appreciation of factual position. Evaluation of oral and documentary evidence will be necessary to decide such an issue. Considering the effective remedy provided under Section 17(1) of the SARFAESI Act, I am of the view that, the issue could not be decided in this writ petition. 5. Under the above mentioned circumstances, the writ petition can be dismissed without prejudice to rights of the petitioner to challenge the impugned actions by resorting to statutory remedy as provided under Section 17(1) of the Act. 4 W.P.(C).No.14971 of 2011 Accordingly, the writ petition is dismissed without prejudice to rights if any available to the petitioner under law to invoke statutory remedy. C.K.ABDUL REHIM, Judge ami/