IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 23811 of 2010(B) -------------------------- CMP.3084/2010 of C.J.M., ALAPPUZHA SA.335/2009 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONERS: --------------- VIJAYAMMA, W/O.VIDHYADHARAN, RESIDING AT VIDYADHARA BHAVAN, KANDALLOOR P.O., KAYAMKULAM, ALAPUZHA DISTRICT. BY ADV. MR. M.V.THAMBAN MR. R.REJI MS. THARA THAMBAN MR. B.BIPIN MS. REVATHY P.NAIR RESPONDENTS: --------------- 1. THE FEDERAL BANK LTD., REPRESENTED BY ITS AUTHORIZED OFFICER, REGIONAL OFFICE, SREE RAJA RAJESSWARI BUILDING CHURCH ROAD, MULLACKAL, ALAPPUZHA DISTRICT-688001. 2. SENIOR MANAGER, THE FEDERAL BANK LTD., GAR ALI, JORHAT, ASSAM 785001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 23811 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 29th day of July, 2010 JUDGMENT The petitioner, who is wife of the borrower and guarantor to the loan availed from the respondent Bank, is challenging the steps taken by the Bank, resorting to the remedy under the SARFAESI Act, for realization of the amount due under three different loan transactions. 2. The case of the petitioner is that, the husband of the petitioner had availed a 'cash credit' facility to an extent of Rs. 20 lakhs on 28.3.2007, a term loan of Rs. 5 lakhs on 21.6.2004 and a 'housing loan' of Rs. 15 lakhs on 4.12.2004. It is the admitted case of the petitioner that, repayments could not be effected as scheduled; which made the husband of the petitioner a defaulter, under which circumstances, the Bank declared the accounts as 'NPA' and proceeded with further steps for realization of the due amount, resorting to the remedy under the SARFAESI Act. Met with the situation, the petitioner approached the DRT Ernakulam, for availing the statutory remedy under 17 of the Act, by filing S.A No. 335 of 2009 along with I.A. No. 1359 of 2009 to intercept the coercive steps. After considering the matter, the DRT passed Ext . P2 interim order on 7.7.2009, whereby the petitioner was W.P. (C) No. 23811 of 2010 : 2 : directed to effect a portion of the existing liability, by remitting Rs. 3,75,000/- on or before 10.8.2009 and another sum of Rs.3,75,000/- on or before 10.9.2009, making it clear that, if there occured any default, the respondents/defendants were at liberty to proceed with further steps, in accordance with law. It is also the admitted fact that, the petitioner could not satisfy the condition. It is revealed from the materials on record that, no steps were taken to issue notice and there was no representation for the petitioner/applicant, when the matter was subsequently taken up, which made the DRT to dismiss the Securitization application itself, as borne by Ext.P2. 3. The Bank proceeded with further steps, by filing Section 14 petition before the Chief Judicial Magistrate, Alappuzha. An Advocate Commissioner was appointed for facilitating the taking over of the possession of the secured property, pursuant to which, Ext. P3 notice has been issued by the Advocate Commissioner, demanding vacant surrender of the premises, which is brought under challenge in this Writ Petition. 4. Going by the admitted facts and figures, this Court finds that, the cause of action in respect of the steps taken by the Bank under the relevant provisions of SARFAESI Act had already been subjected to challenge by availing the statutory remedy. The petitioner was also W.P. (C) No. 23811 of 2010 : 3 : granted interim relief, though the condition imposed was admittedly not satisfied, finally leading to dismissal of securitisation application itself as per Ext. P2. There is no case for the petitioner that, the S.A. dismissed for default was sought to be restored, by filing any application; nor has the petitioner subjected the impugned order to challenge by approaching the Appellate Authority (DART), as provided under the Statute. 5. In the said circumstances, this Court does not find it as a fit case to invoke the discretionary jurisdiction under Article 226 of the Constitution of India. The Writ Petition fails and it is dismissed. However it is made clear that, the dismissal of the Writ Petition will not stand in the way of the petitioner, in pursuing other appropriate remedy, if any. P. R. RAMACHANDRA MENON, JUDGE kmd