IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RP.No. 681 of 2009() ------------------------- AGAINST THE JUDGEMENT/ORDER IN WA.201/2009 Dated 04/02/2009 .................... REVIEW PETITIONER(S): RESPONDENTS 1 & 2 IN W.A ---------------------------------------------------------------------------- 1. THE FEDERAL BANKI LIMITED REPRESENTED BY ITS CHIEF MANAGER,CHERTHALA BRANCH,ALAPPUZHA. 2. AUTHORIZED OFFICER & CHIEF MANAGER,THE FEDERAL BANK LIMITED,REGIONAL OFFICE,ALAPPUZHA. BY ADV. SRI.MOHAN JACOB GEORGE RESPONDENT(S): APPELLANTS & RESPONDENTS 3 & 4 IN W.A ------------------------------------------------------------------------------------------ 1. S.M.LALITHAMBIKA,W/O.LATE RADHAKRISHNAN, SANKAR VILLA,CMC 10,CHERTHALA. 2. R.JAYASANKAR,S/O.LATE RADHAKRISHNAN, SANKAR VILLA,CMC 10,CHERTHALA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER-JAYALAKSHMI, D/O.LALITHAMBIKA,SREE BHADRAM,MAYITHARA.P.O, CHERTHALA. 3. JAYALAKSHMI,D/O.LALITHAMBIKA,SREE BHADRAM,MAYITHARA.PO,CHERTHALA. 4. P.C.CHERIAN @ CHARLES,S/O.P.T.CHERIAN, PALATHARA FASHION JEWELLERS,A.S.ROAD,CHERTHALA. 5. P.K.VIJAYAKUMAR,ADVOCATE, C/O.ADV.P.ROY,ADVOCATE COMMISSIONER,ALAPPUZHA. ADV. SRI.T.K.VIPINDAS THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 21/03/2011, ALONG WITH RP NO. 475 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- R.P.681/2009 in W.A.201/2009 & R.P.475/2009 in W.A.201/2009 ---------------------------------------------- Dated this the 21st day of March, 2011 O R D E R Antony Dominic, J. Auction purchaser and the Federal Bank, to which a property was mortgaged by respondents 1 to 3, are the review petitioners. By these petitions, review of the judgment in W.A.No.201 of 2009 is sought for. 2. Respondents 1 to 3 herein filed W.P(C).No.20332 of 2009, seeking to quash Exhibit P6 order dated 22.4.2008 passed by the Chief Judicial Magistrate, Alappuzha exercising powers under Section 14 of the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The respondents also challenged Exhibit P4 sale notice issued by the Bank under Section 13(4) of the SARFAESI Act. By judgment dated 14.10.2008, the Writ Petition was dismissed by a learned Single Judge of this Court. 3. Aggrieved by the said judgment, the respondents filed W.A.No.201 of 2009. On 4.2.2009, when the Writ Appeal came up for admission, the same was disposed of directing the respondents to prefer an appeal before the Debt Recovery Tribunal. It was further directed that if such an appeal was filed within two weeks, the Tribunal will entertain the appeal and consider the matter on merits. RP.475 & 681/09 2 4. We are informed by both sides that pursuant to the direction so given by the Division Bench, the respondents filed S.A.No.33 of 2007 before the Debt Recovery Tribunal and which is now pending consideration of the Tribunal. It was during the pendency of the said proceedings before the Tribunal, that these Review Petitions are filed before this Court seeking review of the judgment in W.A.No.201 of 2009. 5. We heard the learned counsel for the Review Petitioners and also the learned counsel appearing for the respondents in the Review Petition, who are the appellants in the Writ Appeal. 6. From the facts pleaded, we notice that respondents 1 to 3 herein had availed of certain loans from the Federal Bank mortgaging immovable properties as collateral security. Default was committed and on 27.10.2005 the Bank issued notice under Section 13(2) of the SARFAESI Act. After completing the procedural formalities, notice under Section 13(4) of the SARFAESI Act was issued by the Bank on 2.11.2006. At that stage, on 24.11.2006, respondents 1 to 3 herein filed W.P(C).No.31273/2006 before this Court. That Writ Petition was admitted and a conditional interim order was passed by this Court directing that respondents 1 to 3 shall not be dispossessed from the mortgaged property. Subsequently, by order dated 2.3.2007, the interim order was extended for a further period of six months. RP.475 & 681/09 3 Respondents committed default in complying with the conditions imposed by this Court, as a result of which, on 7.5.2007, the Authorised Officer, under the SARFAESI Act, issued sale notice. At that stage, the respondents withdrew W.P(C).No.31273 of 2006 and thereupon filed S.A.No.33 of 2007 before the Debt Recovery Tribunal challenging the sale notice. After hearing the parties, by order dated 12.6.2007 the Tribunal disposed of S.A.No.33 of 2007 permitting the Bank to open the tenders that were received in the meanwhile and also granting respondents 1 to 3 time till 26.10.2007 to settle the liability. It was ordered that in the meanwhile, confirmation of the sale shall be kept in abeyance. This order also contained a default clause enabling the Bank to confirm the sale in the event the liability was not settled. Again, default was committed, as a result of which, on 12.6.2007 sale in favour of the Review Petitioners in R.P.No.681 of 2009 was confirmed. 7. At that stage, again on 25.10.2007, respondents 1 to 3 filed W.P(C).No.31708 of 2007 challenging the order of the Debt Recovery Tribunal in S.A.No.33 of 2007 and the consequential actions taken. That Writ Petition was dismissed by this Court declining to interfere with the order passed by the Tribunal. The said judgment in the Writ Petition was carried in appeal by filing W.A.No.27 of 2008. The Writ Appeal was disposed of by judgment dated 30.10.2007 granting two RP.475 & 681/09 4 months time to respondents 1 to 3 to settle the liability. That opportunity was also not availed of and on the other hand, respondents filed I.A.No.23 of 2008 seeking extension of time. After hearing the parties, on 26.2.2008 a Division Bench of this Court dismissed the said application. 8. In the light of all that has happened as above, the Bank filed an application before the Chief Judicial Magistrate's Court, Alappuzha on 22.4.2008, for appointment of an Advocate-Commissioner in terms of the provisions contained in Section 14 of the SARFAESI Act Act. The Court appointed an Advocate-Commissioner to take possession of the secured assets. It was at this stage that W.P(C).No.20332 of 2008 was filed with the following prayers: “(a) call for records leading to Ext.P4 notice and Ext.P6 order and quash the same as well as the purported sale pursuant to Ext.P4 by issuing a writ in the nature of certiorari or any other writ order or direction. (b) Issue a writ in the nature of mandamus commanding the respondents 1 and 2 to consider whether the sale of item No.2 property in Ext.P4 is sufficient to meet the liabilities under the loans availed by the petitioners 1 and 2 and to refrain from any coercive steps against the petitioners and the mortgaged property till such decision is taken. (c) Issue a writ in the nature of mandamus commanding the respondents to defer taking of possession of properties referred to in Ext.P4 notice by six months so as to enable the petitioners to redeem the mortgage liability to the 1st respondent.” RP.475 & 681/09 5 For clarity we may also mention that Exhibits P4 and P6 mentioned in prayer (a) are the sale notices published by the Authorised Officer and the order passed by the Chief Judicial Magistrate exercising power under Section 14 of the SARFAESI Act respectively. 9. We have already noticed that W.P.No.20332 of 2008 was dismissed by the learned Single Judge by judgment dated 14.10.2008 taking note of the aforesaid facts and the Writ Appeal was disposed of giving opportunity to the respondents to move the Debt Recovery Tribunal by filing appeal. A reading of the judgment in the Writ Appeal shows that none of the facts which we have noticed above, including the filing of various Writ Petitions, Writ Appeals and applications before the Debt Recovery Tribunal were brought to the notice of the Division Bench. If these facts were brought to the notice of the Division Bench, we are certain that the Division Bench would have concluded that this is not a case fit for exercising discretion in favour of respondents 1 to 3 and would have certainly dismissed the Writ Appeal on that ground. 10. Having regard to the above, we are satisfied that the judgment in the Writ Appeal is vitiated for errors apparent on the face of it. 11. Therefore, we allow R.P.No.475 of 2009 and R.P.No.681 of 2009 and dismiss W.A.No.201 of 2009. RP.475 & 681/09 6 Accordingly, the Review Petitions will stand allowed and the W.A.No.201 of 2009 will stand dismissed. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs