IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 35805 of 2010(A) ---------------------------------- PETITIONER(S): ------------------- 1. AMBIKA, D/O. MEENAKSHI AMMAL, RINI NIVAS, PANAYATHERI, BALARAMAPURAM.P.O, PALLICHAL VILLAGE. 2. SARASWATHI, D/O. MEENAKSHI AMMAL, KUNNATHUTHEKKE VEEDU, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM. 3. LEKSHMIKUTTY, D/O. MEENAKSHY AMMAL, KUNNATHUTHEKKE VEEDU, KULATHUMMAL VILLAGE, THIRUVANANTHAURAM. 4. PARAMESWARAN ASARI, S/O. KRISHNANASSARI, KUNNATHUTHEEKE VILLAGE, KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): -------------------- 1. THE FEDERAL BANK LTD., REGIONAL OFFICE, FEDERAL TOWERS, STATUE, THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORISED OFFICER, PIN - 695 001. 2. K. MURUGAN ASSARI, S/O. KRISHNAN ASSARI, KOTTAKKAKOM HOUSE, KANCHIYOORRKONAM, KATTAKADA - 695 018. R1 BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.35805 of 2010 ------------------------------------------- Dated this the 6th day of January, 2011 J U D G M E N T ---------------------- This writ petition is filed seeking to quash Ext.P4 order issued by the Chief Judicial Magistrate Court, Thiruvananthapuram in a proceedings initiated under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioners inter alia seek declaration to the effect that the property covered under Ext.P1 preliminary decree of the Additional Munsiff Court, Nedumangad, is not liable to be proceeded against under the SARFAESI Act. 2. Facts of the case is that, the 2nd respondent, who is the brother of the petitioners, had availed loan from the 1st respondent Bank by mortgaging property covered under Ext.P1, by depositing settlement deed No.2/2000 of S.R.O., Kattakada. The said document is a settlement deed executed by their mother in favour of the 2nd respondent. Contention of the petitioners is that the mother was not having absolute right over the property in question for executing such a document, and by virtue of that document no valid title was conferred on the 2nd respondent. It is stated that the petitioners have filed a W.P.(C).35805/10 -2- civil suit for partition of the property and obtained Ext.P1 preliminary decree. Contention is that since the 2nd respondent was not having valid title over the property and hence there was no valid mortgage created, and as such the 1st respondent Bank is not entitled to proceed against the property in question in prejudicial to the rights and interest of the petitioners. 3. In the counter affidavit filed by the 1st respondent, serious challenge is raised against maintainability of the writ petition, on the basis that the petitioners have not invoked the effective alternative remedy provided under Section 17(1) of the SARFAESI Act. Further, the factual contentions are disputed. It is mentioned that the Bank had filed a suit against the 2nd respondent and obtained a decree for realising a sum of Rs.6,04,520/- along with interest at the rate of 16.75% per annum. The said decree was obtained as on 13.8.2005 and the proceedings under the SARFAESI Act was initiated when the 2nd respondent had failed to make payment of the amount covered under the decree. It is further contended that Ext.P1 decree was obtained by the petitioner in collusion with the other members of the family, including the 2nd respondent, and the same is a decree passed ex parte. Filing of the partition suit itself is a collusive affair in order to defeat the interest of the 1st respondent, is the contention. The 1st respondent had raised W.P.(C).35805/10 -3- further contention that Ext.P1 is vitiated by fraud and that the petitioners 1 to 3 were not having any rights over the property in question considering the provisions of the personal law applicable to the parties. It is further contended that subsequent to the settlement deed executed by the mother in favour of the 2nd respondent, similar other assignments were made in favour of other siblings and all of them had accepted execution of settlement deed in favour of the 2nd respondent. It is the contention that the filing of partition suit as well as challenges raised against the title of the 2nd respondent are actions initiated as an afterthought in order to defeat interest of the 1st respondent Bank. 4. Considering the rival contentions, I am of the view that the question whether there was any deficiency in the title of the 2nd respondent and as to whether the petitioners have got any right over the property, which is now proceeded against, are matters which need be decided on the basis of factual aspects, which need adjudication on the basis of evidence, both oral and documentary. Since the statute in question provides an effective remedy under Section 17(1), I am of the view that the issue could not be adjudicated in a writ petition filed under Article 226. I take note of the directives issued by the Hon'ble Supreme Court in a recent decision United Bank of India Vs. Satyawati W.P.(C).35805/10 -4- Tondon and others (2010 (8) SCC 110). 5. Under such circumstances, I am not inclined to entertain this writ petition or to issue any orders interdicting the proceedings now initiated under the SARFAESI Act. Accordingly the writ petition is hereby dismissed. However, it is left open to the petitioners to invoke statutory remedy if any available under law. All the contentions raised in this writ petition are left open for agitation. C.K.ABDUL REHIM, JUDGE. okb