IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 1742 of 2009(G) ------------------------- PETITIONER(S): --------------- C.K.JAYARAM, 58 YEARS, S/O.KESAVAN VAIDYAR, CHETTIPARAMBIL, MAMANGASLAM, COCHIN-24. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): --------------- 1. UNIONOF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE AND COMPANY AFFAIRS, DEPARTMENT OF ECONOMIC AFFAIRS DEPARTMENT OF ECONOMIC AFFAIRS, NEW DELHI. 2. AUTHORISED OFFICER/CHIEF MANAGER, S.A.R.C., ARMV, ERNAKULAM, STATE BANK OF TRAVANCORE, PANAMPILLY NAGAR, ERNAKULAM. 3. BRANCH MANAGER, STATE BANK OF TRAVANCORE EAPPALLY, ERNAKULAM. 4. MOHAMMED ALI, S/O.LATE HASSAN, ILICKAL HOUSE, PATHADIPALAM, CHANGAMPUZHA NAGAR, EDAPPILLY. R1 BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR R2, R3 BY ADV. SRI.K.S.DILIP, SC FOR SBT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.1742 OF 2009 ------------------------------------------- Dated this the 29th day of January, 2009 JUDGMENT 1. The 4th respondent is a debtor of the third respondent. Steps were taken against the 4th respondent under the SARFAESI Act. The petitioner then hold out an agreement for sale, stated to be one before the mortgage in favour of the bank. He, accordingly, tries to place a case referable to Section 53A of the Transfer of Property Act. The petitioner has a further contention that the mortgage created by the 4th respondent in favour of the 5th respondent, the security interest under the SARFAESI Act, has essentially disintegrated by virtue of certain acts of parties in as much as the third respondent creditor has permitted the 4th respondent debtor to sell an item of property without even satisfying the entire debt covered by the mortgage. It is also attempted to be projected that there is an extinguishment of the mortgage by acts of parties. WPC.1742/09 Page numbers 2. The aforesaid are essentially matters which can be raised in an application under Section 17 of the SARFAESI Act, having regard to the exclusionary clause contained in that statute. As of now, the bank had only opened up tenders and had not confirmed the sale following the interim order dated 15.1.2009. 3. Hence, preserving all the contentions of the petitioner and without expressing anything on merits, this writ petition is dismissed leaving the petitioner with liberty to move the Debts Recovery Tribunal under Section 17 of the Act in terms thereof. The interim order will continue for three weeks and the DRT will be at liberty to pass such interim order as it may deem just and proper on the totality of the facts and circumstances of this case. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.