IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 2251 of 2009(R) -------------------------------------------- PETITIONER(S): --------------------- M/S.KAIKARA CONSTRUCTION COMPANY, A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, A. ABDUL SALAM, KAITHAVARAM BUNGALOW, KANKATHUMUKKU, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.N.SASIDHARAN NAIR RESPONDENT(S): ------------------------- 1. SOUTH INDIAN BANK, REPRESENTED BY ITS CHIEF GENERAL MANAGER SOUTHE INDIAN BANK, S.I.B.HOUSE, T.B.ROAD THRISSUR-1. 2. CHIEF GENERAL MANAGER SOUTHE INDIAN BANK, S.I.B.HOUSE, T.B.ROAD THRISSUR-1. 3. DEPUTY GENERAL MANAGER CREDIT DEPARTMENT,SOUTH INDIAN BANK, P.B.NO.28, THRISSUR 680 001. 4. CHIEF MANAGER, SOUTH INDIAN BANK, BISHOP JEROME NAGAR, CHINNAKADA KOLLAM. 5. AUTHORISED OFFICER, SOUTH INDIAN BANK, REGIONAL OFFICE, HOTEL SAFA INTERNATIONAL BUILDING,MALAYALA MANORAMA ROAD, THIRUVANANTHAPURAM. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BAN FOR R1-5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 2251 OF 2009 R -------------------------------------- Dated this the 3rd February, 2009 JUDGMENT Petitioner calls in question Ext.P12. A direction is sought to respondents 1 and 2 to permit the petitioner to settle the liability as offered in Ext.P9 representation. A declaration is sought that the decision of the respondent Bank to initiate proceedings against the petitioner under the SARFAESI Act is illegal and arbitrary. Also, a challenge is raised to Exts.P1, P6 and P10 notices. 2. Petitioner, admittedly has availed financial facilities from the first respondent Bank. Proceedings were taken. Petitioner had approached this Court earlier and obtained Ext.P11 Judgment wherein this Court took note of the submission of the learned counsel for the Bank that if representation is filed seeking OTS, it will be considered. It is pointed out by Shri P.B. Suresh Kumar, learned counsel for the petitioner that there was a request by the petitioner, also to allow WPC.2251/09R 2 the petitioner to sell the properties, apparently invoking Section 13(13) of the SARFAESI Act. Ext.P12 is the order passed thereon rejecting the request of the petitioner and according to the petitioner, without considering the request. I heard the learned counsel for the respondent Bank also. He was asked to get instructions. Learned counsel for the Bank would submit that keeping in mind the apprehension of the petitioner that the property where the residence of the petitioner is situated is being proceeded against under Section 13(4) of the Act under Ext.P10, the respondent Bank will proceed against the properties other than the residential property at first and if only the amounts are not realised by the sale of the said two items, the respondent Bank will proceed against the residential property of the petitioner. He further submits that it is open to the petitioner to arrange for private sale for which also the Bank is agreeable. Learned counsel for the petitioner points out that Ext.P12 is bad for non-consideration of the request as such. Learned counsel for the Bank points out that there is no legal right. I also note WPC.2251/09R 3 that the respondent Bank is not an Authority under Article 12 of the Constitution of India. At any rate, I do not see that there is any legal right as such to see that the OTS is accepted. The petitioner does not point out any public duty on the part of the Bank to accept the OTS by the Bank. This Court cannot compel the Bank to accept the OTS. Even though the learned counsel for the petitioner drew my attention to the decision of a learned Single Judge of this Court in W.P.(C).No.32370/07, I would not think that the petitioner can draw support in the facts of this case. The question there was whether the classification made by the Bank in the said case of the writ petitioner therein as a willful defaulter was in accordance with the spirit of the instructions of the RBI. As already noted, there is no public duty on the respondent Bank to accept the OTS as claimed by the petitioner or the release of the properties. 3. Section 13(13) of the SARFAESI Act is an enabling provision empowering a secured creditor to release the properties. Whatever that may be, in view of the stand taken by WPC.2251/09R 4 the learned counsel for the respondent Bank before me, I would think that I need not entertain the challenge to Ext.P12. The Writ Petition is disposed of recording the submissions of the learned counsel for the respondent Bank. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge