IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 WP(C).No. 24853 of 2007(H) --------------------------------------- PETITIONER(S): ---------------------- SUMA JAYAN W/O. K.P.S. JAYAN,SAROJ VIHAR,AYYANTHOLE, THRISSUR DISTRICT BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): ------------------------ 1. SYNDICATE BANK, M.G.ROAD,ERNAKULAM. REPRESENTED BY ITS MANAGER. 2. AUTHORIZED OFFICER, (CHIEF MANAGER) SYNDICATE BANK M.G.ROAD, ERNAKULAM. ADV. SRI.R.S.KALKURA FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24853/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 26.8.04 IN OA. NO.199/02. P2:- COPY OF THE NOTICE DT. 17.7.07 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE NOTICE DT. 17.7.07 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE NOTICE UNDER SECTION 13(2) ISSUED BY THE IST RESPONDENT. R1(b):- COPY OF THE POSTAL ACKNOWLEDGMENT RECEIPTS EIDENCING ACCEPTANCE OF THE NOTICE ISSUED BY THE IST RESPONDENT TO THE CO- OBLIGANT. R1(c):- COPY OF THE LETTER DT. 18,.12.04 ISSUED BY THE MANAGING PARTNER OF THE FIRM. /TRUE COPY/ P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.24853 of 2007-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of October, 2008. JUDGMENT 1.The petitioner is a guarantor for a loan transaction. According to her, she was not given any notice under Section 13(2) of the SARFAESI Act. The fact remains that she was one of the defendants in O.A.199/2002 before the DRT, Ernakulam under the provisions of the RDB Act. That recovery order dated 26-8-2004 has become final. Enforcement proceedings through the Recovery Officer of the DRT was pending. The bank, however, took recourse to SARFAESI Act proceedings and issued Ext.R1(a). However, Ext.R1 (b) acknowledgment is only by one Balan, who is a partner of the firm which availed the loan. Petitioner, who was the fourth defendant, going by Ext.P1, did not even then refute the allegation that she was a partner of the firm. WP(C)24853/2007 -: 2 :- All that she said was that on 17-5-1999, she retired from the first defendant firm. Though the facility was availed thereafter, all documents were jointly executed by the borrowers, including the fourth defendant. These facts are available from Ext.P1 final order. 2.Whatever that be, this writ petition is filed on the limited plea that Section 13(2) notice has not been issued under the SARFAESI Act, to the petitioner. Going by the counter affidavit, it appears that the bank does not have any document to show that Ext.R1(a) was served on the petitioner. It was, obviously, therefore that the interim order dated 7-11-2007 was issued by this Court noticing that the proceedings against the petitioner could not be had without notice under Section 13(2). But, with the passage of time, even as of now, the petitioner has not filed any reply affidavit challenging the contents of Ext.R1(a) or in any manner refuting the demand made. Under such circumstances, the discretionary WP(C)24853/2007 -: 3 :- jurisdiction of this Court need not continue to be extended to the petitioner to ward off recovery proceedings which, by now, is for an amount to the tune of around Rs.75 lakhs. The petitioner has also a different contention. This is that Balan, the recipient of Ext.R1(a) notice as evidenced by Ext.R1(b) and some of the other debtors are not being proceeded at all. Selective procedure during the course of SARFAESI Act recoveries is a matter which the bank has to take recourse to in accordance with its commercial wisdom, having regard to the various aspects, including the quality and availability of the security interest and the reach to the best possible, among the different security assets available in relation to that transaction. Faced with this situation, the learned counsel for the petitioner stated that the petitioner cannot be deprived of any opportunity to challenge any measure taken under Section 13(4) of the SARFAESI Act because, she has not filed any objection to Ext.R1(a). Obviously, going by the law laid by WP(C)24853/2007 -: 4 :- the Apex Court in Mardia Chemicals v. Union of India [2004(2) KLT 273(SC)], an action taken under Section 13(2) is, by itself, not one against which an application lies before the DRT. The fact that no objection has been raised or reply given to the notice under Section 13(2) is, by itself, no ground to deny jurisdiction when any measure taken under Section 13(4) is challenged before the DRT. That contention also therefore fails. For the aforesaid reasons, this writ petition is dismissed preserving all other contentions of the petitioner, including as against the alleged selective procedures being adopted by the bank. The petitioner could raise all such contentions before the appropriate Tribunal in terms of the statute as and when cause of action for that arises. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/291008