IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 5877 of 2009(D) ------------------------- PETITIONER(S): --------------- K.K.MOHANAN, PROPRIETOR, M/S.SARASWATHY ENTERPRISES, X/37/34, ADAMS BAZAR, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): --------------- 1. THE CANARA BANK, SSI BRANCH, KURIACHIRA, THRISSUR, REPRESENTED BY ITS BRANCH MANAGER. 2. THE AUTHORISED OFFICER, SECURITY & ENFORCEMENT CELL, CANARA BANK, REGIONAL OFFICE, SHANMUGHAM ROAD, ERNAKULAM-31. 3. N.M.SATHEESH KUMAR, S/O.MADHAVAN.N.K. NEDUMTHEDATH HOUSE, THALORE P.O.,THRISSUR. 4. N.V.BALASUBRAMANIAN, S/O.VELAYUDHAN, NEDUMTHEDATH HOUSE, MOORKINIKKARA, THRISSUR. R1 BY ADV. SRI.P.GOPINATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.5877 OF 2009 ------------------------------------------- Dated this the 24th day of February, 2009 JUDGMENT 1. The petitioner is one among the co-obligants of the first respondent, against whom, Ext.P3 suit is pending before the Sub Court. Ext.P1 is yet another suit by the debtors against the creditor bank, stated to be one for settlement of accounts. Petitioner seeks to challenge Ext.P5, a notice under Section 13 (2) of the SARFAESI Act, which is issued way back in December, 2005. The plea of the petitioner is that different transactions have been clubbed together and that the notice under Section 13(2) is unauthorised in as much as the creation of security interest by way of a mortgage as pleaded in Ext.P3 is itself denied by the petitioner and the other obligants before the civil court. For one thing, the impugned notice is issued in December, 2005. Learned counsel for the petitioner states that the said notice was served only as of now. I am not prepared to accept this without further examination of evidence in that regard. The said plea is, therefore, necessarily to be left open. WPC.5877/09 Page numbers 2. Secondly, against the notice under Section 13(2), the debtor does not have any right to legal remedy going by the law as laid by the Apex Court in Mardia Chemicals Ltd. & Others v. Union of India & Others {2004 (4) SCC 311} . The mere plea that the said suit has been instituted by the bank is no ground to exclude SARFAESI proceedings. If the plea of the petitioner is a denial of the security interest (mortgage), that is a matter to be raised in appropriate application under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal at the appropriate time, i.e., after a measure is taken in terms of Section 13(4) of that Act. This is how the SARFAESI Act has been interpreted and laid down by the Apex Court in Mardia Chemicals. At this point of time, I do not find any ground for the petitioner to seek any relief, at any rate, from the writ court. The writ petition fails. The same is accordingly dismissed without prejudice to remedies elsewhere in terms of the statute as and when such cause of action would arise. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.24/2.