IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 WP(C).No. 7292 of 2011(J) -------------------------------- PETITIONER(S): ------------------- P.B.A.SALAM,S/O.LATE C.K.BAVA,AGED 70 YEARS,PARAKKAT HOUSE,,BEHIND PADMA THEATRE, ERNAKULAM,PIN 682 035. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): -------------------- 1. THE FEDERAL BANK LTD., REGIONAL OFFICE, ASSET RECOVERY CELL, FEDERAL BANK TOWERS, FIRST FLOOR,MARINE DRIVE,ERNAKULAM,REP.BY ITS MANAGER - 682 031. 2. THE FEDERAL BANK LTD., BRANCH OFFICE, KALAMASSERY BRANCH, ERNAKULAM,REP.BY ITS MANAGER. 3. P.B.KABEER,S/O.C.K.BAVA,AGED 57 YEARS, PARAKKATT HOUSE,, NEAR PADMA THEATRE, ERNAKULAM,KOCHI-35. 4. ARIFA M.FAROOK,W/O.M.FAROOK USMAN,AGED 63 YEARS,41/103 E,AMMANKOVIL ROAD,ERNAKULAM, KOCHI- 682 035. 5. ABIDA KAREEM,W/O.ABDUL KAREEM,AGED 60 YEARS,KAKKAT HOUSE,ELAMAKKARA PO,ERNAKULAM, KOCHI 682 026. 6. HAMEEDA SHAHUL HAMEED, W/O.SHAHUL HAMEED,KATTAPPILLY PARAMBU,THAMMANAM PO, ERNAKULAM - 682 032. 7. C.P.SOUDHA ASHARAF,W/O.ASHRAF KUTTIKKAR, AGED 55 YEARS,KUTTIKKAT HOUSE, ELAVUNKAL PARAMBU, AKG ROAD,EDAPPALLY PO, ERNAKULAM,KOCHI-682 024. svs ........2/-... ...2... WPC.NO.7292/2011 8. ABDUL RAHIM,S/O.LATE PAREEKUTTY,AGED 54 YEARS,12/18F,CHERIYIL MOOLEPADAM ROAD,VAZHAKALA, KAKKANADU WEST PO, ERNAKULAM,PIN 682 030. 9. C.P.NOORAJAHAN RASHEED, AGED 50 YEARS, W/O.V.K.ABDUL RASHEED,VELIKKAKATHU,B-319, THRIKKAKARA PO, ERNAKULAM,KOCHI 682 021. 10. C.P.MOHAMMED SHAKEER,AGED 56 YEARS, S/O.C.A.PAREEKUTTY,CHERIYIL,2/211 C,P.B.K.MAIN ROAD,VAZHAKKALA,THRIKKAKARA PO,ERNAKULAM,KOCHI- 682 021. 11. C.P.MAJMU NAZAR,AGED 40 YEARS, W/O.N.A.ABDUL NAZAR, NEDUMTHAZHATHU HOUSE, ILLATHU PADY, EDAVANAKKADU PO, ERNAKULAM - 682 502. 12. C.B.SAIFUDHEEN,AGED 66 YEARS, S/O.LATE C.K.BAVA,PLOT NO.16,EASTERN VILLAS, POYYACHIRA, CSEZ PO,ERNAKULAM - 682 018. R1-R2 BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY R-3 BY ADVS. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.7292 of 2011 ------------------------------- Dated this the 4th day of April, 2011. J U D G M E N T The challenge raised in this writ petition is against the proceedings initiated by respondents 1 and 2 with respect to certain immovable property, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The 3rd respondent, who is the brother of the petitioner, had mortgaged the property in question in order to secure a loan availed from respondents 1 and 2. The petitioner claims that he is a co-owner with respect to the property, on the basis of Ext.P1 decree, passed in a suit filed by some of his family members with respect to the partition of the said property. 2. According to the petitioner, the 3rd respondent was not holding absolute title over the property and that the mortgage created in favour of respondents 1 and 2 by the 3rd respondent, was not valid. 2 W.P.(C).No.7292 of 2011 3. Considering the nature of dispute raised regarding validity of title over the property, I am of the view that, the matter could not be resolved in a writ petition filed under Article 226. It is noticed that the petitioner has got an effective remedy as provided under the SARFAESI Act, to agitate such disputes, before the Debt Recovery Tribunal. 4. However, the petitioner had approached this Court at a stage when the property was proclaimed for sale. Through an interim order dated 9.3.2011, confirmation of the sale if any takes place, with respect to the property described as item No.9 in Ext.P2 notice, was stayed. 5. Learned counsel for the petitioner seeks permission to withdraw this writ petition, without prejudice to his rights to agitate the matter before the DRT. He further seeks indulgence of this Court to keep in abeyance further steps pursuant to the sale for a reasonable period, in order to facilitate him to approach the Tribunal. In the counter affidavit filed by the 1st respondent it is contended that, the claim raised by the petitioner is highly frivolous and Ext.P1 is 3 W.P.(C).No.7292 of 2011 a collusive suit filed by the family members of the petitioner. It is further mentioned that the property in question was bid in an auction for a sum of Rs.55 lakhs, on 10.3.2011, and the bidder had already remitted 25% of the said amount. 6. Under the above mentioned circumstances, I am of the opinion that, permission can be granted to withdraw this writ petition facilitating the petitioner to agitate the matter before the Tribunal. 7. Respondents 1 and 2 are directed to keep in abeyance further steps for confirmation of the sale for a period of 2 (two) weeks from today, in order to facilitate the petitioner to seek appropriate remedy from the Debt Recovery Tribunal. The writ petition is accordingly dismissed as withdrawn, without prejudice to rights of the petitioner as mentioned above. C.K.ABDUL REHIM, Judge ami/