IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WA.No. 539 of 2008 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.1628/2008 Dated 08/02/2008 .................... APPELLANT/ PETITIONER:- ------------------------------------ M.CHANDRASEKHARAN, AGED 42 YEARS, S/O.KRISHNAN, MATTUVAYIL P.O., ELATHUR, KOZHIKODE. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENTS/RESPONDENTS:- ---------------------------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF FISHERIES AND PORTS, TRIVANDRUM. REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. 2. THE AUTHORIZED OFFICER/GENERAL MANAGER, CALICUT CO-OPERATIVE URBAN BANK LTD., KALLAI ROAD, KOZHIKODE - 673 002. R1 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R2 BY ADV.SRI.DEVA PRASANTH P.J. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ W.A.No.539 of 2008 ------------------------------------------------------- Dated, this the 6th day of March, 2008 JUDGMENT K.M.Joseph, J. The appellant is the writ petitioner. The appellant filed the writ petition for a writ of mandamus commanding the 2nd respondent Bank to stop for six months all recovery proceedings against the petitioner a fisherman entitled to protection under moratorium by Exhibit P3 Government Order. The appellant availed a loan from the second respondent Bank and committed default. The Bank initiated proceedings against the appellant/petitioner. The appellant essentially relies on Ext.P3. Ext.P3 is a Government Order dated 2-11-2007. The order says that for providing relief to fishermen in distress due to debt liabilities, to solve their grievances, for granting relief to debtor fishermen, Fishermen Debt Relief Bill 2007 was drafted, presented in Kerala Legislature and sent to select committee for consideration. In these circumstances as recommended by the Select Committee the Fisheries Director has requested for stoppage of Recovery proceedings and attachment procedure. In Ext.P3 it is further stated that: “On serious examination of the issue as a matter of urgent remedy measure for Fishery Workers all recovery steps including attachment proceedings relating to all loans availed of from persons or institutions including private financial establishments, the Government is pleased to Order declaration of Moratorium for six months.” W.A.No.539/2008 -2- (2). According to the appellant, therefore proceedings against the property of the appellant was unwarranted and accordingly he prays that the second respondent Bank may be directed to stop all recovery proceedings against him for six months. (3). Learned Single Judge took note that recovery proceedings against the petitioner by way of sale has become final. All that remains is exercise of power to take over actual physical possession in terms of Section 14 of the SARFAESI Act for which the police power of the State is provided. Accordingly, the learned Single Judge dismissed the writ petition. (4). We heard Sri.Manjeri Sunder Raj, learned counsel appearing for the appellant. According to the learned counsel for the appellant, the appellant cannot be deprived of the benefit of Ext.P3 order for the mere reason that the sale has been effected. According to him, the sale has not culminated into divestment of possession. The appellant not being deprived of the possession, he should be held entitled to the benefit of Ext.P3, he contends. (5). Learned counsel appearing for the Bank would point out that, in fact, there was an earlier litigation namely W.P.(C) No.33544/2006 which was filed by the appellant herein. Therein the appellant had in fact made the purchaser of the property as a party. He further points out that the property of the appellant had been sold much prior to Ext.P3. A perusal of the judgment would show that the contention of the appellant in that case was that the property was agricultural property and therefore exempted from the provisions of the SARFAESI Act. We notice that the appellant has not cared W.A.No.539/2008 -3- to make the purchaser of the property as a party in the writ petition even though he was fully aware that the sale has taken place as evidenced from the judgment in WP(C) 33544/2006 (6). We would take the view that the benefit of Ext.P3 may not be available in the facts and circumstances to the appellant. What is stated by Ext.P3 is stoppage of recovery proceedings and attachment against fishermen. This is a case where much prior to Ext.P3, sale was held under the provisions of SARFAESI Act and property of the appellant was purchased by the person who is not before us. In such circumstance, we cannot accept the contention of the appellant that merely for the reason that the possession has not been taken the appellant would still be entitled for the benefit of Ext.P3. Accordingly, the writ appeal fails, and it is dismissed. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS