IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 34522 of 2010(M) -------------------------- MC.148/2010 of C.J.M.,THODUPUZHA .................... PETITIONER(S): --------------- 1. SRI.K.T.JOSEPH @ JOSY THOMAS, KONDOOPARAMBIL HOUSE,NADUKANI.P.O, KOTHAMANGALAM. 2. SRI.JOSE MICHAEL,S/O.LATE MICHAEL, KALLIVAYALI HOUSE,ROSE GARDENS,CHELAD.P.O, KOTHAMANGALAM. BY ADV. SRI.GEORGE KURUVILLA(ALAPPUZHA) RESPONDENT(S): --------------- UNION BANK OF INDIA,REPRESENTED BY ITS BRANCH MANAGER,MUNNAR BRANCH,IDUKKI DISTRICT - 685 612 ADV. SRI.A.S.P.KURUP, SC, UBI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.34522 of 2010-M ---------------------------------------- Dated this the 8th day of December, 2010. J U D G M E N T Challenge in this writ petition is against proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). According to the petitioners they are agriculturists owning agricultural lands, located at Chinnakanal Village of Udumpanchola Taluk, and the loan in question was availed specifically for the purchase of 4 acres of Cardamom cultivating land comprised in Sy.No.331 of Chinnakanal Village. It is specifically pointed out that Ext.P2 letter issued by the respondent Bank will reveal the above facts. It is also stated that Ext.P1 sale deed through which the property was purchased also contains recital to the effect that the land in question is Cardamom cultivating land. On the basis of the said averments, contention of the petitioners is that the proceedings initiated under the SARFAESI Act is not maintainable in view of Section 31(i) of W.P(C) No.34522 of 2010-M 2 the said Act. But on invoking provisions contained in Section 14(1) of the Act, the respondent Bank had approached the Chief Judicial Magistrate Court and an Advocate Commissioner appointed by that Court had already taken over possession of the property. 2. Learned standing counsel appearing for the respondent Bank stoutly refute the statement that the land in question was not cultivating with any Cardamom and that it could not be exempted from the purview of the SARFAESI Act. It is pointed out that there is no specific definition provided under the statute with respect to the agricultural land and if a property is not being cultivated with any agricultural crops, the same will not come within the purview of Section 31(i). 3. It is pertinent to note that the petitioners have not objected to the notice issued under Section 13(2) nor they have resorted to the remedy provided under Section 17(1) when steps was taken under Section 13(4). Since the parties are in dispute regarding the fact as to whether the W.P(C) No.34522 of 2010-M 3 property in question is an agricultural land or not, I am of the view that an adjudication on the basis of evidence on factual aspects is required to resolve the issue. Under such circumstances it is left open to the petitioners to raise such contentions by invoking the statutory remedies as contemplated under Section 17(1) of the Act. I am of the view that reserving such liberty this writ petition is liable to be dismissed. 4. In the result, the writ petition is dismissed without prejudice to rights of the petitioners to invoke remedy provided under Section 17(1) of the SARFAESI Act. It is left open to the petitioners to apply for condonation of delay, if any occurred in filing such petition, invoking Section 14 of the Limitation Act and if any such application is filed, the Tribunal shall consider whether the delay can be condoned considering the time spend by the petitioners in prosecuting the matter before this Court. 5. However, considering the facts and circumstances, the respondents are directed to keep in W.P(C) No.34522 of 2010-M 4 abeyance further coercive steps of recovery for a period of two weeks from today, in order to facilitate the petitioners to seek appropriate reliefs from the Tribunal. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab