IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 16900 of 2011(J) --------------------------------- PETITIONER(S): ------------------- P.J.GEORGE, S/O.P.K.JOSEPH, PUTHANPARAMBIL HOUSE, SEA VIEW WARD, BAZAR P.O., ALAPPUZHA. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENT(S): -------------------- 1. UNION OF BANK OF INDIA (A GOVERNMENT OF INDIA UNDERTAKING) REPRESENTED BY ITS AUTHORIZED OFFICER, UNION OF BANK OF INDIA KABIR PLAZA, CCSB ROAD, MULLACKAL, ALAPPUZHA. PIN - 688011. 2. THE BRANCH MANAGER, UNION OF BANK OF INDIA, VADAICANAL SOUTH, BANK ROAD, MULLACKAL, ALAPPUZHA. PIN - 688011. 3. THE REGISTRAR, DEBTS RECOVERY TRIBUNAL, (KERALA AND LAKSHADWEEP), ERNAKULAM. PIN - 682016. R1 & R2 BY ADV. SRI. A.S.P. KURUP, SC., UBI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 16900/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LOAN SANCTION ORDER DATED 01/12/2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P2: COPY OF THE REQUEST LETTER DATED 17/10/2007 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P3: COPY OF THE REQUEST DATED 27/01/2009 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P4: COPY OF THE COMPLAINT DATED 04/01/2010 SUBMITTED BY THE PETITIONER AS C.C. NO.3/2010 TO THE CONSUMER DISPUTE REDRESSAL FORUM, ALAPPUZHA. P5: COPY OF THE REQUEST DATED 08/04/2010 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P5(a):COPY OF THE POSTAL RECEIPT AND ACKNOWLEDGEMENT CARD FOR EXHIBIT P5. P6: COPY OF THE COMMUNICATION DATED 28/09/2010 ISSUED TO THE PETITIONER FROM THE 2ND RESPONDENT. P7: COPY OF THE REGISTERED NOTICE DATED 15/11/2010 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. P8: COPY OF THE STATEMENT ACCOUNTS FOR THE PERIOD 03/12/2006 TO 30/05/2011 AND. P9: COPY OF THE NOTICE NO.61128567 DATED 20/05/2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. P10: COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE DEBT RECOVEREY TRIBUNAL, ERNAKULAM. P10(a):COPY OF THE DEMAND DRAFT AS WELL AS STAY PETITION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.16900 of 2011 ------------------------------- Dated this the 29th day of June, 2011. J U D G M E N T This writ petition is filed seeking to quash the steps initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioner inter alia seeks a writ of mandamus directing respondents 1 and 2 to rectify the alleged mistakes and anomalies crept in the statement of accounts relating to the loan transaction availed by the petitioner. The petitioner is also seeking a writ of mandamus against the 3rd respondent Tribunal directing to accept Ext.P10 appeal, holding that the same is maintainable and to adjudicate the same on merits. 2. On the facts of the case it is evident that, the petitioner had availed a credit facility from respondents 1 and 2 to the tune of Rs.15 lakhs, during the year 2006, for purchase of a house boat. The impugned proceedings under the SARFAESI Act was initiated consequent to default 2 W.P.(C).No.16900 of 2011 committed by the petitioner in repaying the monthly instalments. Contention of the petitioner is that, the allegation regarding default is not correct and there is no monthly instalments overdue for payment, based on the statement of accounts furnished by the respondent Bank itself. It is further stated that, in fact there is remittance of excess amount than what is due. It is evident that, when Ext.P9 notice was issued, the petitioner had resorted to the remedy provided under Section 17(1) of the SARFAESI Act. An application filed in this regard before the 3rd respondent Tribunal was returned without registering the same, noting that the application is premature. On a perusal of Ext.P9 it is evident that, the same is not a notice issued as contemplated under Rule 8(1) of the Security Interest (Enforcement) Rules. Contents of the notice is only to the effect that, unless the petitioner surrenders possession of the secured assets to the officials of the respondent Bank before 27.5.2011 or on any date thereafter, he should co- 3 W.P.(C).No.16900 of 2011 operate in taking over possession of the secured asset by drawing an inventory by the Bank. It is further mentioned that the Bank officials will take steps to secure the assets on the date mentioned therein. 3. It is evident from Section 17(1) of the SARFAESI Act that, any person aggrieved by any steps taken as contemplated under Section 13(4), is entitled to approach Debt Recovery Tribunal. I could not find fault with the 3rd respondent Tribunal in holding that, the application submitted is premature, since Ext.P9 is not a notice intimating any steps taken under Section 13(4) of the Act. Therefore, a direction for reconsideration of Ext.P10 appeal could not be issued to the 3rd respondent. However, it is noticed that if the petitioner has got a case that the possession taken by the 3rd respondent Tribunal in this regard is illegal, he has got remedy provided under the statute to approach the appropriate forum. 4. Learned counsel for the petitioner made vehement 4 W.P.(C).No.16900 of 2011 arguments contending that, the attitude of respondents 1 and 2 is malafide in nature and the vindictive steps taken against the petitioner will put him to further embarrassing situations, if the respondents are permitted to take over possession of the secured assets. The allegations are raised mainly pointing out that, the amounts demanded under the SARFAESI proceedings is not true and correct. It is pertinent to note that the dispute mainly pertains to correctness of the amounts due under the loan account. This Court may not be in a position to adjudicate on the contentions in this regard. However, the standing counsel for respondents 1 and 2 points out that the petitioner has not raised any objection to the demand notice issued under Section 13(2). If the petitioner has got any serious dispute regarding correctness of the amount, he is left with remedy as provided under Section 17(1) at a proper stage. 5. Learned counsel for the petitioner made an appeal seeking interference of this Court to direct an enquiry 5 W.P.(C).No.16900 of 2011 through any higher officials of the respondent Bank on the basis of the allegation that the officials at the branch level is acting in a malafide manner. I am of the firm view that, it is not a matter coming within the purview of the jurisdiction vested on this Court under Article 226 of the Constitution of India, because the dispute mainly pertains to one arising out of contractual obligations pertinent to loan transaction. However, all such disputes and all contentions raised in this regard are left open for agitation before appropriate forum. 6. In this regard it is pertinent to note that, the Honourable Supreme Court of India in the decision reported in United Bank of India V. Sathyawati Tondon & Ors. (2010(8) SCC 110) had deprecated in strong words, the practice of the High Courts interdicting with steps taken under the SARFAESI Act, in view of the alternative remedy available under Section 17(1). Hence, I am refraining from considering any of the request made by the petitioner to interfere with the proceedings. 6 W.P.(C).No.16900 of 2011 7. Under the above mentioned circumstances, I am of the view that the writ petition deserves no merit and the same is liable to be dismissed. However, statutory remedy available to the petitioner with respect to further steps if any taken, is left open. All the contentions raised herein are also left open for agitation. C.K.ABDUL REHIM, Judge ami/