IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 24965 of 2011(U) ----------------------- PETITIONER(S): ----------------------- 1. D.RAGHAVAN, AGED 82, 'PADMAVILASAM', KOTTAMUGAL, KATTAKKADA P.O., THIRUVANANTHAPURAM. 2. N.RAJAMMA, AGED 65, W/O. D.RAGHAVAN, 'PADMAVILASAM', KOTTAMUGAL, KATTAKKADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI. A.B. MOHANA KUMAR RESPONDENT(S): ------------------------- 1. KOTAK MAHINDRA BANK LIMITED, 1ST FLOOR, TRUST PHARMA BUILDING, KATYATH LANE, JANATHA JUNCTION, PALARIVATTOM, KOCHI-682 024, REPRESENTED BY ITS AUTHORISED OFFICER. 2. GEETHA G.NAIR, 'GOKULAM', KAKAMUGAL, KATTAKKADA, MYLOTTUMOOZHY, THIRUVANANTHAPURAM-695 009. 3. P.E.GOPINATHAN, 'GOKULAM', KAKAMUGAL, KATTAKKADA, MYLOTTUMOOZHY, THIRUVANANTHAPURAM-695 009. BY SRI. K.K.M. SHERIF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 24965 of 2011(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE POSSESSION NOTICE DATED 29.10.2009 ISSUED BY THE 1ST RESPONDENT UPON THE 2ND AND 3RD RESPONDENTS. EXT.P2 : TRUE COPY OF THE ORDER DATED 1.4.2011 IN CMP NO.5387/2010 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. EXT.P3 : TRUE COPIES OF THE LATEST RATION CARD OF THE PETITIONERS. EXT.P4 : TRUE COPIES OF THE ELECTION IDENTITY CARDS OF THE PETITIONERS. EXT.P5 : TRUE COPY OF THE JUDGMENT DATED 02.08.2011 IN WRIT PETITION (CIVIL) NO.21018/2011. EXT.P6 : TRUE COPY OF THE PLAINT DATED 13.9.11 IN THE SUIT FILED BY THE PETITIONERS AND OTHERS BEFORE THE VACATION COURT, THIRUVANANTHAPURAM. EXT.P7 : TRUE COPY OF THE SECURITIZATION APPLICATION DATED 16.9.11 FILED BY THE PETITIONERS AND OTHERS. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.24965 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of September, 2011 J U D G M E N T For recovery of the loan amounts due from the respondents 2 & 3, the 1st respondent initiated recovery proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against the petitioners' property on the ground that the the property of the petitioners have been mortgaged as security for the loan amount. According to the petitioners, the petitioners have not given their property as security for any loan amount and a fraud has been played on the petitioners by respondents 2 & 3 in collusion with the 1st respondent. The petitioners have therefore filed a suit in respect of the same, which is pending. The petitioners earlier approached this court by filing W.P.(C) No.21018/2011, in which by Ext.P5 judgment, this Court relegated the petitioners to seek remedies by way of an application under Section 17 of the SARFAESI Act. W.P.(C)No.24965 of 2011 -2- The petitioners submit that, the petitioners have filed an application under Section 17 before the Debts Recovery Tribunal which is likely to be numbered today. In the meanwhile, the petitioners apprehend that the 1st respondent would take steps to demolish the building situated in the property wherein the petitioners are residing. The petitioners therefore seeks the following reliefs: “(i) A writ of mandamus or other appropriate writ, order direction, directing the 1st respondent not to demolish residential house No.303, in Ward No.15, Poovachal Panchayath comprised in Resurvey No.229/9 in Block No.43 in Veeranakavu Village, Nedumangad Taluk, Thiruvananthapuram District, described in Exhibit P1, nor to do anything disturbing the quiet possession and enjoyment of the same; (ii) a writ of mandamus or other appropriate writ, order direction, directing the 1st respondent to unlock the room locked by them on 4.7.2011 and hand over possession to the petitioners, till the matter is finally decided by the Debt Recovery Tribunal, Ernakulam.” 2. The counsel for the 1st respondent opposes the prayers on the ground that the petitioners have already suffered Ext.P5 judgment and the petitioners has to seek their remedies before the DRT. 3. Having considered the contentions of both sides, W.P.(C)No.24965 of 2011 -3- I dispose of this writ petition with the following directions: In order to enable the petitioners to obtain appropriate orders from the DRT, the 1st respondent shall keep further proceedings in abeyance for a period of two weeks. If the petitioners are unable to get orders from the DRT within that time, it would be open to the respondents to continue proceedings in accordance with law. I make it clear that, I have not considered the maintainability of the application filed by the petitioners under Section 17 before the DRT and it is for the DRT to consider the same in accordance with law. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/