IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 22607 of 2009(U) --------------------------------------- PETITIONER(S): ----------------------- P.B.GIREESAN, AGED 46, S/O.LATE BALABHADRAN, PLANICKASSERIL HOUSE, BEACH WARD, ALAPPUZHA, ALAPPZHA WEST VILLAGE. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.T.A.ABDUL RASHEED RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY SECRETARY, MINISTRY OF FISHERIES, SECRETARIAT, TRIVANDRUM. 2. THE KERALA STATE FISHERMEN DEBT RELIEF COMMISSION, O/O.THE KERALA STATE FISHERMEN DEBT RELIEF COMMISSION, NANDANKODE JUNCTION, TRIVANDRUM, REP.BY SECRETARY. 3. THE STATE BANK OF INDIA, AGRICULTURAL DEVELOPMENT BANK NEAR SANTHI THEATRE, ALAPPUZHA DISTRICT, REP.BY ITS BRANCH MANAGER. 4. THE AUTHORISED OFFICER & CHIEF MANAGER THE STATE BANK OF INDIA, AGRICULTURAL DEVELOPMENT BANK, NEAR SANTHI THEATRE, ALAPPUZHA DISTRICT. 5. LEEMA ROSE ABRAHAM, ADVOCATE COMMISSIONER, CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA. R3 & R4 BY ADV. SRI.P.V.SURENDRANATH BY GOVT. PLEADER MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON 06/04/2010 DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 22607 of 2009 --------------------------------- Dated this the 6th day of April, 2010 JUDGMENT Challenge in this writ petition is against Exts.P1 and P6 notices issued under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). The petitioner had availed a loan from the 3rd respondent Bank to the tune of Rs.6 lakhs, on 24.8.2005, for business in trading of dry fish. The loan was secured through equitable mortgage created on 7 cents of property and residential building situated therein, belonging to the petitioner, comprised in survey No.492/1A of the Allapuzha west village. Consequent to default committed in repayment of the loan amount, respondents 3 and 4 had initiated proceedings under the SARFAESI Act. Ext.P1 is the demand notice issued under section 13(2) of the Act. Subsequently the 4th respondent had approached the Chief Judicial Magistrate, Allapuzha invoking section 14 of the Act by filing CMP.No.4222/2009. The Chief Judicial Magistrate Court has appointed an advocate WPC.22607/2009 2 Commissioner to take over possession of the above said immovable property, which is the secured asset with respect to the loan transaction. Ext.P6 is the notice issued by the Advocate Commissioner requesting the petitioner to hand over possession of the said property. 2. Contention of the petitioner is that he is a traditional 'Fisherman' coming within the purview of the Kerala Fishermen Debt Relief Commission Act 2008 (hereinafter referred to as the Act for short) and that he belongs to an area which is declared as 'disaster affected area' under section 6 of the Act. It is contended that the petitioner is entitled to get relief contemplated under Section 5 of the Act and that the commission constituted under the Act has got power to issue necessary directions to the creditors, which in this case is respondents 3 and 4, for restructuring of the loan and also to facilitate one time settlement. It is contended that the Commission has got power to fix the amounts by waiver of interest and penal interest, and also to fix time frame for payment of the amounts due. According to the petitioner he had already approached the 2nd respondent commission constituted under the Act seeking such WPC.22607/2009 3 reliefs, as evidenced from Ext.P2, which is acknowledged through Ext.P5 receipt. Hence it is contended that action now initiated by respondents 4 and 5 under the SARFAESI Act is liable to be kept in abeyance till disposal of Ext.P2 by the 2nd respondent Commission. 3. In the counter affidavit filed on behalf of respondents 3 and 4 it is pointed out that the petitioner is not a traditional 'Fisherman' engaged in fishing as provided under the Act and that he is not a person entitled for any benefits contemplated therein. It is contended that the petitioner is a businessman and he is not entitled for any relief or benefit under the Act, which is basically intended for traditional fisherman engaged in fishing and vending of fishes for eking livelihood. Respondents 3 and 4 had produced Ext.R3 series Balance Sheets, Profit and Loss Account and Stock Statements with respect to the business of the petitioner, which will indicate that turnover of the business worth crores of rupees. Therefore it is contended that the petitioner cannot be treated as a traditional 'fisherman' coming within the purview of the Act and entitled for any benefits contemplated therein. 4. A scrutiny of the relevant provisions contained in the WPC.22607/2009 4 Kerala Fishermen Debt Relief Commission Act 2008 will be beneficial for deciding the issue. As per section 7 of the Act, any relief can be claimed by a 'Fisherman' by filing application before the Commission constituted under section (3) of the Act. The term 'Fisherman' is defined under section 2(xiii) of the said Act which reads as follows:- 'Fisherman' means, a person who accept fishing as the foremost means of livelihood and whose annual income does not exceed the annual income limit fixed by the Government from time to time and it includes the widow of a fisherman” So also, the term 'Fishing' is defined under section 2(xii) which reads as follows:- “ 'Fishing' means - (a) fishing by traditional method or by using traditional or mechanised vessels; (b) sale of sea water/fresh water/saline water fish products by the family members of a fisherman by travelling to various places by two wheelers or by head load, but does not include fishing by using mechanized boat, for which licence has to be taken WPC.22607/2009 5 under section 6 of the Kerala Marine Fishing Regulation Act, 1980 (10 of 1981) and as may be specified by the Government by notification.” 5. It is admitted case that the petitioner is a businessman conducting trade in dry fish. He has not accepted “fishing” as foremost means of livelihood. Going by objects of the Act it is clear that the legislation is intended to provide relief to fisherman who are in distress due to indebtedness, by constituting a commission for recommending relief measures. Going by the Act it is clear that powers given to the Commission is to provide different reliefs to the poor sector of the Fisherman suffering from indebtedness, who had adopted fishing as the main avocation of their life and is conducting fishing by traditional methods or doing sale of fish products by his family members through travelling to various places by two wheelers or by headload. Even fishing by use of mechanised boats are exempted from the purview of the Act. 6. From the factual circumstances in the above case, I am of the considered opinion that the petitioner is not a person WPC.22607/2009 6 coming within the purview of the Kerala Fishermen Debt Relief Commission Act 2008. However, I do not find any valid reason to withhold the proceedings initiated by respondents 3 and 4 under the provisions of the SARFAESI Act. 7. It is pertinent to note that the petitioner had not filed any objection to Ext.P1 notice issued under section 13(2) of the SARFAESI Act. From the counter affidavit it is evident that respondents 3 and 4 had taken further steps as provided under section 13(4) and notices in this regard were already published. Provisions of section 14(1)was invoked thereafter and the Chief Judicial Magistrate Court is now proceeding with steps for taking over possession of the property. The petitioner had also not chosen to avail remedy by way of appeal against any coercive steps, as provided under section 17 of the SARFAESI Act. Hence I find no valid reason to invoke jurisdiction vested in this court under Article 226, for interfering with the proceedings initiated under the SARFAESI Act. Hence the writ petition deserves no merit and the same is hereby dismissed. 8. However, it is made clear that the petitioner will be at liberty to pursue Ext.P2 application submitted before the WPC.22607/2009 7 Commission. The 2nd respondent Commission is at liberty to dispose of Ext.P2 application untrammelled by any of the observations contained in this judgment. It is also made clear that the petitioner is at liberty to invoke appellate jurisdiction provided under section 17 of the SARFAESI Act, against the impugned proceedings, if available under law. 9. It is further made clear that dismissal of this writ petition will not stand in the way of respondents 3 to 4 or any authority dealing with the proceedings under the SARFAESI Act, from granting instalment facility or waiver of any amount to the petitioner for payment of the arrears due under the loan account. C.K.ABDUL REHIM,JUDGE pmn/ WPC.22607/2009 8