IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 36299 of 2010(J) --------------------------------- PETITIONER(S): ------------------- SABU JOSE, S/O.K.O.JOSEPH, AGED 33, KUNNEL HOUSE, VILAKKUMADOM, POOVARANI.P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI RESPONDENT(S): -------------------- 1. DHANALAKSHMI BANK LTD., PALA BRANCH, REP.BY ITS MANAGER, PALA BRANCH, KOTTAYAM DISTRICT - 686 575. 2. REJI JOSEPH,SOLE PROPRIETOR OF M/S.R.G.TRADERS, S/O.K.O.JOSEPH, AGED 36 YEARS, KUNNEL HOUSE, VILAKKUMADOM, POOVARANI.P.O., KOTTAYAM DISTRICT-686 577. 3. THRESIAMMA JOSEPH, RESIDING ALONG WITH SABU JOSEPH, KUNNEL HOUSE, VILAKKUMADOM, POOVARANI.P.O., KOTTAYAM DISTRICT - 686 577. 4. UNION OF INDIA, REP.BY ITS SECRETARY TO DEPARTMENT OF BANKING AND FINANCE, CENTRAL SECRETARIAT, NEW DELHI - 1. R1 BY ADV. SRI.NAGARAJ NARAYANAN, SC. R4 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.36299 of 2010 ------------------------------------------- Dated this the 6th day of January, 2011 J U D G M E N T ---------------------- Second respondent is the brother and 3rd respondent is the mother of the petitioner. For securing loan availed by the 2nd respondent from the 1st respondent Bank, properties belonging to the petitioner and the 3rd respondent, and other family members, were mortgaged. Consequent to default committed in repayment of the loan amounts, the 1st respondent Bank had approached the Debts Recovery Tribunal by filing O.A.No:269/2005, in which a decree was passed as per Ext.P1. It is stated that all the properties mortgaged for securing the loan are charged in Ext.P1 decree (final order) passed by the Debts Recovery Tribunal. 2. Meanwhile, proceedings for recovery was initiated by the 1st respondent resorting to provisions contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, W.P.(C).36299/10 -2- 2002 (SARFAESI Act). The 2nd respondent had approached this court challenging the proceedings by filing WP(C). No.1617/08. It is stated that the 2nd respondent had also filed a civil suit before the Sub Court, Pala, as O.S.128/07, with respect to the partition of the properties among family members. But the suit was dismissed as per Ext.P3 Judgment. According to the petitioner, the 2nd respondent had undertaken to pay off the liability due to the 1st respondent as per the terms of the settlement arrived. But he has not complied with such promise. The Bank had proceeded with further steps and published Ext.P5 notice with respect to steps taken under Section 13(4). Present grievance of the petitioner is that the Bank had proceeded against the property belonging to the 3rd respondent wherein the petitioner is residing with the 3rd respondent, by excluding properties belonging to the 2nd respondent. It is alleged that the 2nd respondent is colluding with 1st respondent against the 3rd respondent and the steps now initiated against the properties of the 3rd respondent is causing severe prejudice. It is brought to notice of this court that through Ext.P8 the 1st respondent had approached the Chief Judicial Magistrate Court invoking Section 14(1). W.P.(C).36299/10 -3- 3. It is noticed that the property belonging to the 3rd respondent, upon which the petitioner is making claim was mortgaged for securing the loan. Therefore, the petitioner could not successfully raise any challenge against the proceedings initiated under the SARFAESI Act against the said property. However, learned counsel appearing for the 1st respondent Bank had submitted that simultaneous steps will also be taken against other properties which are mortgaged for securing the loan transaction. 4. I am of the opinion that merely on the ground that coercive steps were initiated only against the property belonging to the 3rd respondent, the petitioner could not seek any interdiction of such proceedings. Hence the writ petition is disposed of, however, making it clear that the 1st respondent will also take appropriate steps against the proprieties belonging to the 2nd respondent which are also mortgaged for securing the loan. C.K.ABDUL REHIM, JUDGE. okb