IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 14137 of 2008(G) ---------------------------------------- PETITIONER: ------------------ 1. ROSIL RAPHEAL , W/O. RAPHAEL.T. JOSEPH, THEKKAKKARA HOUSE, KEECHERI 680 501. 2. RAPHAEL.T. JOSEPH,THEKKAKKARA HOUSE, PROPRITOR, RENIL AUTO GARAGE,KEECHERI 680 501. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENTS: ----------------------- 1. THE AUTHROSIED OFFICER , TRICHUR DISTRICT CO-OPERATIVE BANK LTD CO-OPERATIVE CENTENARY BUILDING, TUDA ROAD THIRUVAMBADY, THRISSUR 680 022 2. TRICHUR DISTRICT CO-OPERATIVE BANK LTD NO. 60, CO-OPEARIVE CENTENARY BUILDING, TUDA ROAD THIRUVAMBADY, THRISSUR 680 022 REPRESENTED BY ITS GENERAL MANAGER. 3. THRISSUR DISTRICT SCHEDULED CASTE/ SCHEDULED TRIBE MOTOR TRANSPORT CO-OPEATIVE SOCIETY LTD.NO. R740, AYYATHOLE, THRISSUR-3 (PRIYADARSHINI TRANSPORTS REPRESENTED BY ITS SECRETARY. ADV. SRI.V.G.ARUN,SC,THRISSUR DIST.CO-OP BANK FOR R2 SRI.T.R.HARIKUMAR,SC,THRISSUR DIST.CO.O FOR R2 SRI.DILIP J. AKKARA FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.14137/2008 APPENDIX PETITIONERS' EXHIBITS:- Ext.P1 True copy of the letter of the 3rd respondent dated 01-09- 2003 to the 2nd petitioner. Ext.P2 True copy of the letter of the 3rd respondent dated 01-09- 2003 to the 2nd respondent. Ext.P3 True copy of the representation of the 2nd petitioner to the 3rd respondent dated 05-06-2006. Ext.P4 True copy of the decision No.CCR No.1 dated 29-06-2006 of the 3rd respondent. Ext.P5 Notice under S.13(2) of the SARFAESI Act 2002 dated 05- 01-2008 by the 1st respondent. Ext.P6 True copy of the reply dated 03-04-2008 sent by the 1st petitioner. Ext.P7 True copy of the reply dated 18-04-2008 sent by the 1st respondent and received by the petitioner on 30-04-2008 Ext.P8 True copy of the letter of sanction dated 28-08-2003 to the 2nd petitioner. Ext.P9 True copy of the agreement No.RAG/2003-2004 dated 27- 06-2003. RESPONDENTS' EXHIBITS:- Ext.R2(a) True copy of the application form dated 21-8-2003. Ext.R2(b) True copy of the agreement dated 01-09-2003. // True copy // P.A. to Judge. THOTTATHIL B. RADHAKRISHNAN, J. ---------------------------------------------------------------- W.P.(C) NO.14137 OF 2008 (G) ---------------------------------------------------------------- Dated this the 28th day of July, 2008 J U D G M E N T The first petitioner is the wife of the second petitioner. She availed an overdraft facility from the second respondent. Second petitioner, husband, has a garage. He undertook the work of repairing 13 buses belonging to the third respondent, which is a society meant for the benefit of Scheduled Castes/Scheduled Tribes, under the control of Revenue Divisional Officer and the Regional Transport Officer. 2. It appears that the third respondent owes money to the second petitioner and during the pendency of the aforesaid situation, Ext.P8, produced along with the reply affidavit, was arrived at, whereby certain arrangements were made between the second respondent and the first petitioner. It is also stated that the President of the second respondent was the Ex-officio Director of the third respondent. 3. The second respondent filed ARC No.108/2006 against the first petitioner. The second petitioner filed ARC No.446/2007 W.P.(C) No.14137/2008 - 2 - against third respondent. Those arbitration cases are pending before the Arbitrator. Those litigations would tend to show that the amounts due from the third respondent to the second petitioner, the husband, is much more than the total outstandings due from the first petitioner, the wife, to the second respondent. During the pendency of those proceedings, the second respondent bank has evoked the provisions of the SARFAESI Act in relation to the overdraft transaction between it and the first petitioner. Since there is debt outstanding, which is secured, there is no jurisdictional error or legal infirmity in the impugned proceedings. 4. However, the totality of the facts and circumstances, discloses that the situation in hand is the making of the third respondent, against which, ARC No.446/2007 is pending. On hearing parties, there does not appear to be much of a dispute on the basic facts relating to the transactions, at least, as between second petitioner and the third respondent, though the learned counsel for the second respondent has rightly stated that the second respondent is not legally responsible under the transaction between first petitioner and second respondent. Be W.P.(C) No.14137/2008 - 3 - that as it is, ends of justice requires that the ARC initiated by the second petitioner should also be expedited since the impugned distress action as against the property of first petitioner could be saved provided any award obtained by the second petitioner can be enforced, appropriately and timely. The impugned proceedings, as of now, would stand deferred for a period of six months, within which the competent Arbitrator, before whom ARC No.446/2007 filed by the second petitioner is pending, will finally pass an order. He shall do so, though he is not a party to this judgment. The second petitioner is directed to place a copy of this judgment before the learned Arbitrator for further action in terms of law, in the light of what is stated above. It is further directed that the second respondent will take a meaningful decision, having regard to the award that may be passed, as aforesaid, regarding further proceedings. All other contentions are left open. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/29/7