IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 20315 of 2010(L) ------------------------------------- PETITIONER(S): ------------------------- 1. SRI.SIVANKUTTY K.M., KARIPPUKALAYIL HOUSE, ATHIRATTUKUNNU P.O., VIA KENICHIRA, WAYANAD DISTRICT-673 596. 2. SMT.SUMATHI KUTTY V.D., W/O. SIVANKUTTY, -DO- 3. SRI. SOMAN K.M., PATTOMVEEDUMEETHAL HOUSE, KUTHIRAVATTOM P.O., KOZHIKODE-673 016. BY ADV. SRI.P.C.THOMAS SRI.ROJO J.THURUTHIPARA RESPONDENT(S): -------------------------- 1. THE STATE BANK OF TRAVANCORE, (ASSOCIATE OF THE STATE BANK OF INDIA), HAVING ITS HEAD OFFICE AT TRIVANDRUM, REPRESENTED BY ITS THE GENERAL MANAGER (OPERATIONS). 2. THE CHIEF MANAGER, STATE BANK OF TRAVANCORE, STRESSED ASSETS RESOLUTION CENTRE (SARC), 2ND FLOOR, THAVOT PLACE, KANNUR ROAD, CALICUT-673 001. BY ADV.SRI.T.SETHUMADHAVAN, SC. ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. --------------------------------------------- W.P.(C). NO.20315 OF 2010 ---------------------------------------------- Dated this the 13th day of July, 2010. JUDGMENT The petitioner availed a loan of Rs.15 lakhs from the 2nd respondent bank, creating security interest over the property in question. But the repayment was not effected on time, under which circumstances, the bank proceeded with steps under the SARFAESI Act, which is under challenge in this writ petition. 2. Case of the petitioner is that, the property is an 'agricultural land' and stands exempted from the purview of the Act as provided under Section 31(i) of the said Act. The learned counsel for the petitioner places reliance on the decision rendered by the Division Bench of this Court reported in Muhammed Basheer Vs. Kannur District Co-operative Bank and Others, (2010 (2) KLT 577) holding that 'rubber plantation' is very much an agricultural land and is liable to be exempted. Reliance is also sought to be placed on the decision rendered by another Division W.P.(C). NO.20315 OF 2010 2 Bench in Writ Appeal No.1057 of 2006, holding that the discretionary jurisdiction under Art.226 of the Constitution of India can be very much exercised, if the property involved is 'agricultural land' and the party need not be relegated to avail the statutory remedy by approaching the DRT in this regard. 3. The learned counsel for the respondent Bank submits, with reference to the contents of the statement filed, that the loan availed by the petitioner was not an agricultural loan and it was purely a 'business loan'. It is also pointed out that the property concerned, over which security interest has been created is a pacca 'garden land' in which a residential building is also situated and that contention, that it is an 'agricultural land' eligible for exemption under Section 31(i) is not correct or sustainable. For this reason, the learned counsel submits that the reliance sought to be placed on the decision in Muhammed Basheer Vs. Kannur District Co-operative Bank and Others, (2010 (2) KLT 577) is not attracted to the case in hand. W.P.(C). NO.20315 OF 2010 3 4. During the course of hearing, this Court referred to the entries in Ext.P1 certificate issued by the concerned Village Officer, against column No.I, that the petitioner has planted Coconut/Arecanut palms, Pepper Vines etc. in the property. Placing reliance on Ext.P6 produced along with I.A.No.9535/2010, the learned counsel submits that the Agricultural Officer of the area has certified that there are yielding Coconut/Arecanut palms and Pepper Vines in the property of the 1st petitioner and that there are Rubber trees aged three years and Coconut palms in the property of the 3rd petitioner. Proper irrigation is stated as being done by the 2nd petitioner, with the help of 5HP diesel motor. The learned counsel for the Bank submits that absolutely no reliance can be placed on Exts.P1 or P6, to hold that the property concerned is 'agricultural land'. Mere fact that the petitioner has planted some yielding trees or Pepper Vines in the garden land, it will not change the nature and characteristics of the garden land, to have it changed to agricultural land. Reference is also made to the contents of Ext.P2 notice issued under section 13(2) of the SARFAESI W.P.(C). NO.20315 OF 2010 4 Act wherein the description of properties is specifically given. With regard to the 1st item of property having a total extent of 50 cents it is situated with the clear boundaries as specified therein, which reveals the actual nature of the land. According to the bank, the 2nd item of property having an extent of 60.27 of land is also similarly situated and further, there is a residential building situated in the said property, showing it as a pacca dry/garden land and not an agricultural land. 5. Going by the rival submissions, this Court finds that, there is a disputed question of fact as to the nature of the property over which security interest was credited by the petitioners while availing the loan. As such, the matter requires to be considered on the basis of the evidence to be adduced. Contents of Ext.P1 or P6 by itself does not give a clear picture as to the nature of the property and as to whether the petitioner is entitled to have benefit of the verdict passed by Division Bench of this Court in 2010 (2) KLT 577. Similarly, since the factual position is seriously disputed by the Bank, adjudication of same by this W.P.(C). NO.20315 OF 2010 5 Court, for want of adequate evidence, is not possible, to give effect to the dictum laid down in Writ Appeal No.1057of 2006. In short, this Court finds that the matter requires to be considered by the DRT, where both sides are at liberty to have opportunity to adduce evidence. 6. In the above circumstances, interference is declined and the Writ Petition is dismissed; however, without prejudice to the rights of the petitioner to avail the statutory remedy, so as to substantiate his contentions and to have the benefit of the decisions cited supra. So as to enable the petitioner to pursue such exercise, the coercive proceedings, if any, to dispossess the petitioners and to have the property sold in public auction shall be kept in abeyance for a period of one month. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE. mns