IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 31640 of 2009(Y) -------------------------- PETITIONER(S): --------------- SREEKUMARAN THAMPI, S/O. GOPALAKRISHNAN NAIR, RAMANILAYAM, T.C. NO. 10/100, SWATHINAGAR LANE -1, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): --------------- 1. HSBC BANK LTD,.REPRESENTED BY ITS BRANCH MANAGER, VELLAYAMBALAM, 2. SREEKUMARAN NAIR, DEVISADANAM, PALKULANGARA, KAITHAMUKKU P.O. 3. KM. SEBASTINE, S-425, GREATER KAILASH, PART-II, NEW DELHI 110048, 4. NILEEMA SEBASTINE, W/O. K.M. SEBASTINE, DO...DO.. R1 BY ADV. SRI.KKM.SHERIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 31640 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2009 J U D G M E N T 1. Petitioner is challenging Ext.P4 notice issued by the Advocate Commissioner who was appointed by the Chief Judicial Magistrate Court in a proceeding under Section 14 (1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The proceedings was initiated at the instance of the 1st respondent Bank for realising the arrears in the loan account which was availed by respondents 3 & 4. According to the petitioner the property which is now sought to be proceeded against is still in his possession and that he is residing therein along with his family. The petitioner admits that he had executed a sale deed in favour of the 2nd respondent. But it was only towards security for amount advanced by the 2nd respondent to the petitioner, such a document was created. His claim is that document was never intended to constitute a concluded sale. It is W.P.(C)No. 31640 of 2009 -2- further contended that the respondents 3 & 4 never got title over the property. Hence the petitioner submits that there is no valid mortgage created with respect to the property in favour of the 1st respondent and the 1st respondent is not entitled to proceed against the said property under the SARFAESI Act. 2. The premise under which challenge is raised against the proceedings initiated under the SARFAESI Act relates to title, possession and rights over the immovable property which is the secured asset. I am afraid this court is not in a position to adjudicate upon such claims, which basically requires evidence both documentary as well as oral, and which is basically is a dispute between parties inter se. The petitioner has got right to establish such claim if any exists, through the appropriate civil court. The petitioner can also invoke the appellate remedy available under the SARFAESI Act, against the steps now proceeded with the instance of the 1st respondent Bank. Therefore the writ petition is highly misconceived. W.P.(C)No. 31640 of 2009 -3- 3. Having confronted with the above position, learned counsel for the petitioner sought permission to withdraw the writ petition without prejudice to rights of the petitioner to approach the civil court or the appellate authority under the SARFAESI Act. He further prays for a direction to keep in abeyance actual dispossession of the petitioner and his family from the property for a short period in order to facilitate him to approach the appropriate authority. 4. Having considered submissions on the side of the petitioner and after hearing learned standing counsel appearing for the 1st respondent, I am of the opinion that permission can be granted to withdraw the writ petition and further direction can be issued to keep coercive steps for a limited period to facilitate the petitioner to move before the appropriate authority. 5. In the result the writ petition is dismissed as withdrawn, without prejudice to rights of the petitioner to approach the appropriate civil court and/or the appellate W.P.(C)No. 31640 of 2009 -4- authority under the SARFAESI Act. 6. The 1st respondent is directed to keep in abeyance further coercive steps for dispossession of the petitioner from the property for a period of three weeks from today. C.K. ABDUL REHIM JUDGE shg/