IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 27088 of 2010(I) ----------------------------------- AGAINST THE ORDER IN IA.5276/2010 IN OS.809/2010 of SUB COURT,THRISSUR ................................................................... PETITIONER: ------------------ HASSAN, S/O.KHADER, AGED 60 YEARS, KORAPPA HOUSE, MANATHALA, CHAVAKKAD. BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S): ------------------------- 1. STATE BANK OF INDIA, REPRESENTED BY ITS CHIEF MANAGER, (RCPC) REGIONAL BUSINESS OFFICE, BHARATHAKSHEMAM BUILDING, ST.THOMAS COLLEGE ROAD, THRISSUR - 680 005. 2. A.C.M.SHAUKATH, ANDATHODU CHALIL HOUSE, BABY ROAD, THIRUVATHRA, CHAVAKKAD, THRISSUR DISTRICT - 680 516. R1 BY SRI. R.S. KALKURA, SC, STATE BANK OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N C.K.ABDUL REHIM, J. -------------------------------------- W.P.(C).No.27088 of 2010 -------------------------------------- Dated this the 2nd day of September, 2010 J U D G M E N T ---------------------- Prayer in this writ petition is for a direction to the 1st respondent to intimate the petitioner about sale if any proposed with respect to immovable property belonging to the 2nd respondent, which had been proceeded against under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002. The petitioner is not a party to the loan transaction. He claims interest over the property on the ground that certain amounts are due from the 2nd respondent for which a suit instituted by the petitioner is pending disposal. According to the petitioner, the civil court has passed an interim order of attachment in the suit, as evidenced from Ext.P2. Learned Standing Counsel for the 1st respondent Bank submits that the property in question stood mortgaged in favour of the Bank prior to the interim order of attachment, and the Bank is on the footing of a secured creditor. Further, the property being the secured asset is liable to be proceeded against under the SARFAESI Act, not W.P.(C).27088/10 -2- withstanding the rights if any available to the petitioner under any other statute. Hence the interim attachment will be of no effect against the proceedings initiated by the Bank, is the contention. I find force in the contentions of the 1st respondent and the learned counsel for the petitioner is not in a position to point out any legal provisions which enables the petitioner to restrain the proceedings initiated by the Bank against the property, which is a secured asset under the provisions of the SARFAESI Act. On the facts of the case, it will be open for the petitioner to participate in the auction sale and purchase the property, if so advised. 2. The petitioner seeks a further relief for a direction to the 1st respondent to make deposit of balance amount if any derived from the sale, before the civil court where the suit is pending. It is noticed that the claim raised by the petitioner against the 2nd respondent is yet to be adjudicated and decided by the civil court. Unless any such liability is fixed through a decree and the petitioner gets Garnishee Orders in execution of the decree, it is not proper for this court to direct deposit of such amount before the civil court. On the other hand, the petitioner will be always at liberty to approach the civil court seeking W.P.(C).27088/10 -3- attachment of such amounts if any derived in the sale in excess of the arrears due to the 1st respondent. 3. Learned counsel for the petitioner raised an apprehension that the Bank may return such amounts if any, to the 2nd respondent even without affording a chance to the petitioner to approach civil court seeking an attachment. The 1st respondent Bank has not so far even notified sale of the property. Only when a sale is materialised for an amount in excess of the arrears due, such a contingency will arise. Therefore I am not convinced to grant any such relief at present, based on an apprehension, which is purely anticipatory in nature. 4. Under the above circumstances the writ petition is dismissed, but making it clear that the petitioner will be always at liberty to proceed against the 1st respondent, as permitted under law, for realising excess amount if any received from the sale of the property in question. C.K.ABDUL REHIM, JUDGE. okb